Marlon Wayans Beats Actor's Lawsuit Over Offensive Tweet

A judge decides that an actor's improvisation is part of the creative process
Junko Kimura/Getty Images

Marlon Wayans has successfully defended a lawsuit over an allegedly racially insensitive tweet after a California judge took an expansive view of how the First Amendment covers the creative process.

The lawsuit came this past August from Pierre Daniel, who was hired for a bit part in Haunted House 2. The plaintiff claimed he was subjected  to repeated offensive language on the set about his African-American race and given a comparison to a popular character from Fox's Family Guy. Here's what Wayans posted on Twitter in Sept. 4, 2013:

The link is to a side-by-side picture of the plaintiff on the left and the animated character Cleveland Brown:

In response to the lawsuit, Wayans filed an anti-SLAPP motion to strike the complaint. California law is designed to deter frivolous litigation that impinges protected First Amendment rights like free speech.

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The plaintiff contended that the objectionable acts derived from racial harassment rather than true protected activity, but in an opinion on Dec. 31, Los Angeles Superior Court judge Rafael Ongkeko finds that Wayans' actions fall within the ambit of free speech. In past cases, things like casting decisions have been ruled to be part of the creative process furthering free speech. In the latest case, Judge Ongkeko goes so far as to deem humorous improvisation to be part of the creative process as well. The judge notes that Wayans has a "body of work that deals with racial humor" and elects to credit the spontaneity that happens on the set, especially when it results in something tangible like the development of an actual scene in the film itself.

"It is undisputed that plaintiff's brief role and purpose in the film was limited to his character, which developed eventually as the comical Cleveland Brown character," writes the judge. "The Cleveland Brown character, like plaintiff, obviously black, heavy (plaintiff's role cast him as a heavy-set furniture mover strong enough to move and lift the safe that flattened the dog), with curly 'Afro' hair (hence, the perm and Jheri curl jokes), were all incorporated humorously into the filming of the scene involving Wayans, his dog, and plaintiff. Indeed, plaintiff fulfilled his role as an extra. The transcripts and film clips show that plaintiff's concerns regarding Wayans' statements and conduct were part of the improvisational humor that was important to the creative process and should have come as no surprise to plaintiff as a participant in that process."

Still, even after determining that Wayans' Twitter post was connected to the humor emanating from Daniel's role in the movie and the promotion of Haunted House 2, that didn't end the judge's analysis. Wayans won the first part of the anti-SLAPP analysis, moving the judge to next examine Daniel's probability of prevailing on the merits of his claims.

Among the highlights: Judge Ongkeko rules that the Daniel is unlikely to prevail on his racial harassment claim because Wayans' actions weren't sufficiently severe to alter the conditions of the plaintiff's employment. The judge sees a likely loser in Daniel's misappropriation of likeness claim because of a signed waiver consenting to use of a photograph. And as for a false light invasion of privacy claim, the judge says Daniels has failed to indicate he suffered public ridicule or lost work.

Under California's SLAPP law, because Daniel can't demonstrate a likelihood of prevailing on claims arising from protected activity, the lawsuit goes no further. Wayans wins, and represented by William Briggs at Venable, he can also seek reimbursement of his legal fees.

“I am grateful that the judge upheld our constitutional rights of free speech," says Wayans about the ruling. "It's the first amendment and probably the most important for a comedian. This is also a stride toward in protecting public figures from often bogus claims and lawsuits. I am grateful now if you’ll excuse me I'm gonna go watch reruns of The Cleveland Show.”

Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner

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