Marlon Wayans' Racially Insensitive Workplace Language Ordered to Be Reconsidered by CA Supreme Court

Marlon Wayans speaks onstage during the 20th Annual Golden Trailer Awards - Getty - H 2019
Tommaso Boddi/Getty Images

Marlon Wayans is now in danger of becoming the face of a shift in California law — one where the sanctity of free speech doesn't always trump discrimination in the creative workplace.

On Wednesday, the California Supreme Court quietly told a lower appeals court to reconsider Wayans' win in an opinion that was published more than two years ago.

In the case, Wayans faces off against Pierre Daniel over what happened on and off set during the making of A Haunted House 2.

Daniel alleges that Wayans subjected him to repeated offensive language about his African American race. The plaintiff also pointed to a Sept. 4, 2013, tweet from Wayans, where the film's star posted his picture alongside Family Guy character Cleveland Brown with the comment, "Tell me this nigga doesn't look like… THIS NIGGA!!!"

On Feb. 9, 2017, California's Second Appellate Division analyzed the dispute within the context of California's SLAPP statute, which is meant to deter frivolous lawsuits chilling First Amendment activity. Under the SLAPP law, judges first analyze whether a lawsuit arises from protected activity on a matter of public concern. If so, the suit is then screened for minimal merit before the legal action moves any further. The intention of the SLAPP law is to create breathing space for public participation.

Wayans beat Daniel's suit thanks in part to the conclusion that the claims did rise from protected activity. But it was an assessment that divided the appellate panel.

At the time, Justice Jeffrey Johnson (more on him in a bit) wrote for the majority that the "alleged misconduct is based squarely on Wayans's exercise of free speech — the creation and promotion of a full-length motion picture, including the off-camera creative process."

Johnson rejected Daniel's argument that a movie's creative process occurs only when the cameras are rolling, saying that this is "an unreasonably narrow or constrained view of the creative process," taking Wayans at his word that being able to improvise is an aspect of comedy. As such, even going on social media to comment on Daniel's resemblance to a cartoon character was deemed as furthering Wayans' right of free speech.

Not so fast, responded Justice Elwood Lui.

"The problem with this analysis is that Daniel did not willingly participate in this creative process," stated the dissent. "Under Daniel's version of events — which we must accept on this appeal — he was not a collaborator in a crass but collegial brainstorming session. He did not know Wayans. He was not hired to be a writer or creative consultant. He was an extra hired for one day to be a 'non-descriptive furniture mover who would be assisting in moving boxes in and out of a house.' He was the target of, not a participant in, others' demeaning and offensive humor."

Johnson's opinion carried the day, but a few important events have happened as a further appeal was made to the California Supreme Court.

Something quite notable is taking place at the Second Appellate Division, where many of Hollywood's most important legal disputes wind up. Johnson has been accused of two decades' worth of harassing behavior, including repeatedly groping a female judge on that circuit. His future on the bench now depends on an upcoming judicial disciplinary hearing. The allegations against Johnson didn't cause reexamination of the Wayans' opinion. Nevertheless, Wayans' fate could be influenced by Johnson's potential absence.

And two opinions in the past few months have prompted reconsideration.

In the first, the California Supreme Court revived a libel suit against DoubleVerify. The action is brought by FilmOn, a streamer owned by Alki David (who coincidentally, is in the midst of his own sexual harassment trial at the moment) over warnings to advertisers about "copyright infringement" and "adult content." A lower court found the advisement by DoubleVerify to be protected activity in connection with a matter of public interest. But in May, the California Supreme Court ruled that when deciding the first prong under California's SLAPP statute, the focus had to be on the "specific nature of the speech rather than on any generalities that might be abstracted from it." Because DoubleVerify's reports were disseminated privately and never entered the public sphere, its reports never furthered free speech in connection with the public interest.

In the second, the California Supreme Court analyzed an employment discrimination claim against CNN from Emmy Award-winning producer Stanley Wilson, fired upon concerns of plagiarism. What appears to be important from the July 22 opinion is the discussion over whether Wilson was targeting protected activity. CNN argued that its selection of content producers facilitates its free speech, that staffing decisions impact the news that its viewers see. The Supreme Court responded that not everything a news organization does qualifies as protected activity under the anti-SLAPP statute. Although CNN did convince California's highest court that disciplining news staffers for ethics violations qualified as conduct in furtherance of First Amendment rights on a matter of public concern, CNN still had to face Wilson's claims of passing him over for promotions, assigning him menial duties and more, allegedly because the cable news channel treated minorities unfairly.

Now the Supreme Court has directed the Second Appellate Division to reconsider Daniel v. Wayans in light of v. DoubleVerify and Wilson v. Cable News Network, meaning there's about to be closer examination of the actor's conduct and whether it really fits the definition of protected activity.

This primes the way for parsing speech in the creative realm, delineating what's really part of the "process" of making entertainment versus what are merely bad actions that have no connection to free speech.

Expect an important decision in the coming year.