Court of Appeal Holds Anti-SLAPP Statute Protects Speech in the Context of Artistic Creation

The Second District Court of Appeal last week affirmed a lower court’s ruling granting actor and comedian Marlon Wayans’ anti-SLAPP motion in a case involving alleged racial harassment on the set of his movie.  The decision extends the reach of California’s anti-SLAPP statute to protect racially charged language made as part of the creative process even where the comments at issue are directed at someone ancillary to the creative process.

In 2014, actor Pierre Daniel sued Wayans alleging that he was the victim of racial harassment during his one day of work on the set as an extra in the movie, A Haunted House 2.  Daniel accused Wayans of repeatedly using racial slurs directed at him and tweeting a photo comparing him to the cartoon character “Cleveland” from the television show Family Guy.  Wayans filed a special motion to strike pursuant to Code of Civil Procedure section 425.16, California’s anti-SLAPP statute.  Wayans successfully convinced the lower court that the language he used on the set, including allegedly racial slurs, was protected speech as part of his creative process to develop lines and characters for his improvisational and race-based comedy film, and that the allegedly harassing twitter post was a writing made in a place open to the public and made in connection with an issue of public interest.

On Appeal, Daniel argued that Wayans’ conduct was outside the protections of the anti-SLAPP statute because the essence of his complaint was race-based harassment and such conduct could not be protected activity.  Daniel further argued that because the allegedly racial slurs were made when cameras were not rolling, Wayans’ statements were not part of the creative process and thus not protected speech, and not in connection with any issue of public interest.

In rejecting Daniel’s arguments, the Court of Appeal found that Wayans’ conduct was within the protections of the anti-SLAPP statute because the creation and promotion of a full-length motion picture, including the off-camera creative process, were protected speech.  The Court further acknowledged that Wayans’ long film history was evidence of public interest in his films, and that the “Cleveland” tweet was made in a place open to the public such that it contributed to the public discussion regarding the film.  The Court then proceeded to the second step of the anti-SLAPP analysis in order to determine whether Daniel demonstrated the required reasonable probability of prevailing at trial on the merits.  Holding that Daniel failed to do so, the Court stated that “Daniel did not introduce any evidence showing that an objectively reasonable Black actor in his situation would also find the term offensive such that its usage would unreasonably interfere with his work performance.”  Pierre Daniel v. Marlon Wayans (2017) 2017 WL 526494, at *12.  The Court further concluded that the Twitter post both referred to a topic of widespread public interest (the film) and contributed to the public “debate” (whether Daniels looked like “Cleveland”) to those interested in a glimpse of someone in the film.  Id. at 10.

The Court’s reluctance to dissect the creative process to determine what was and was not necessary to achieve a final artistic product underscores the continued expansion of the anti-SLAPP statute to situations involving protecting racially charged language made in a creative work environment.