Marlon Wayans' Tweet Generates Lengthy Appellate Discussion on Race and Creativity

Marlon Wayans - H 2016
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Marlon Wayans - H 2016

Thanks to a published ruling out on Thursday from a California appeals court, we can envision the film A Haunted House 2 coming up repeatedly in future disputes in the state of California. Among other things, a 50-page opinion by associate justice Jeffrey Johnson discusses the intersection between racial harassment and speech, examines whether "nigga" is a epithet when spoken by a black man, and not last nor least, addresses a celebrity's Twitter following while determining that a single tweet can make transformative use of someone else's identity.

Haunted House 2 starred Marlon Wayans, and in a very minor role, Pierre Daniel.

After the film wrapped production, Daniel sued Wayans and others involved in the production. Daniel alleged being subjected to repeated offensive language on the set about his African-American race. The plaintiff was also the subject of the following tweet posted by Wayans on Sept. 4, 2013:

Wayans scored an early victory in the lawsuit in January 2015 with a judge coming to the conclusion that Daniel's various claims arose from protected activity — free speech — on a matter of public interest, and that Daniel was unlikely to prevail.

Thus came an appeal.

The first major issue provokng analysis is whether, in fact, Daniels' claims arose from the type of First Amendment activity that California's lawmakers have gone the extra mile seeking to protect with a SLAPP statute meant to deter frivolous litigation.

Daniel argued that race-based harassment couldn't possibly qualify as a protected right, but Johnson and one other California appeals court justice came to a different conclusion by determining that "the exercise of free speech here was central, not incidental, to his alleged injuries."

To all the offensive and derogatory language Wayans allegedly aimed at Daniel over the fellow actor's race and national origin, including insults made during breaks while no cameras were rolling, the majority opinion allows for wide latitude for the improvisational "creative process," taking Wayans at his word when he says that joking around on set is part of his method.

In a dissent, appellate justice Justice Elwood Lui disagrees here, writing that the problem with such analysis is that Daniel "did not willingly participate in this creative process," and talks about how racially charged humor was directed at the plaintiff. He emphasizes this latter point, distinguishing it from a famous entertainment law case involving the sexually charged writers' room for the old NBC comedy Friends. There, a plaintiff's harassment claim failed because the court noted the creative environment. Lui finds something to distinguish the two cases.

How about Wayans' behavior away from the set? Namely, that tweet.

Well, Johnson notes that Wayans has a million followers, has starred in many television shows and films, and that the first film was evidently popular enough to prompt a sequel. In other words, there was public interest, and the comedian was sounding off about an aspect related to his work. 

"Accordingly, advance information from Wayans about the making of A Haunted House 2, including a photo of someone acting in the film, constitutes a topic of public interest, even though Daniel himself may not have been known to the public," he writes.

Once the majority satisfies themselves that protected rights are involved, they move to the second prong of California's SLAPP statute, analyzing the likelihood of the claims prevailing in order to figure out whether the dispute should move any further.

Up first are claims of racial harassment. As part of his case, Daniel argued that it was beyond question that use of "nigger" is a racial slur.

"Nigger, however, is not the term at issue here," responds Johnson. "Rather, the term at issue is nigga. As Daniel makes clear in his declaration opposing the motion, he was not called nigger by Wayans, but nigga. Nigga is not an unambiguous racial epithet in today’s world, especially when used intra-racially, as it was here ... Moreover, the evidence introduced below suggests the contrary to Daniel’s claim—that is, a reasonable Black actor who voluntarily agreed to participate in a movie addressing racial stereotypes that was written, produced and starred Wayans — an artist known for his frequent use of both nigger and nigga in his work — would be on notice that potentially racially charged language would be used in the film, and, given the improvisational nature of the production, that such language might be used among the actors and production staff when the cameras were not rolling to help develop storylines and dialogue."

(Lui devotes a footnote to this subject, saying it's all about context. He also thinks the majority should have given Daniel the benefit of the doubt that the term offended him.)

There's a lot more in the decision. Besides failed discrimination claims, Daniel also attempted claims of violations of his publicity and privacy rights. Some of the claims fail because of a release that Daniel signed, but maybe more interesting is the majority's discussion of transformative use in the context of what Wayans tweeted. We imagine this could come up in other contexts just as some of the subjects above.

"Here, although Wayans used two unaltered images — one of Daniel and one of the Cleveland Brown character — his use of those images was nonetheless transformative," states the opinion. "Wayans’s use was transformative in the combination of the juxtaposed images with his commentary. That combination of images and arguably humorous commentary provided the Internet posting with an element of caricature, lampoon, or parody. It is this element that puts the Internet posting within the protection of the First Amendment. In other words, Wayans’s juxtaposition of Daniel’s image with the image of the Cleveland Brown character and his caption added 'something new'  to Daniel’s image, altering it with a 'new expression, meaning, or message.'"

Here's the full opinion and dissent.