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Daniel v. Wayans: First Amendment Trumps Harassment Claim

Daniel v. Wayans (CA2/1 B261814 & B263950 2/9/17)
Actor Racial Harassment/First Amendment Creative Process

Pierre Daniel (Daniel), an African-American actor, worked as an extra in a movie entitled, "A Haunted House 2."  African-American Hollywood mogul Marlon Wayans (Wayans) co-wrote, produced, and starred in the movie. Daniel sued Wayans and others, alleging that he was the victim of racial harassment because during his one day of work on the movie he was compared to a Black cartoon character and called racial slurs throughout the day by Wayans.  In response, Wayans, pursuant to Code of Civil Procedure section 425.16, moved to strike Daniel's claims against him as a SLAPP suit (i.e., Strategic Lawsuit Against Public Participation), arguing that all of Daniel's claims arose from Wayans' constitutional right of free speech because the core injury-producing conduct arose out of the creation of the movie and all events occurring on the set reflect humorous anecdotes as potential promotion for the film, in addition to creating an improv-like "in character" environment on set which can lead to improvisational changes to scenes during the filming process. 

The trial court agreed with Wayans and also found that Daniel had failed to establish the probability that he would prevail on any of his claims against Wayans.  As a result, the trial court entered judgment in favor of Wayans and awarded him his attorney fees as required under the Anti-SLAPP law.

On appeal, Daniel argues that the trial court erred with regard to its determination of the threshold issue in Wayans' anti-SLAPP motion- that is, the conduct at issue was not part of the "'creative process' " inherent in making the movie because it occurred when the cameras were not rolling and, as a result, did not involve the right of free speech or an issue of public interest.  The court of appeals rejected this contention upheld the dismissal of the racial harassment case and required Daniel to pay all of Wayan's legal fees pursuant to the anti-SLAPP rules.

This case, like the 2006, Friends harassment case (Lyle v. WB Television Productions, et al) (in which a writer's assistant sued the producers of Friends because of lewd talk in the writers room), demonstrates that harassment laws are applied quite differently in the entertainment industry as compared to other traditional industries, and that the Constitution's 1st amendment protects the creative process to such an extent that it will trump mere statutory employment laws when such laws may infringe upon those creative artistic rights. 

In both cases, the importance of permitting lewd and bawdy humor on the set by the show's creators, is an important and protected part of the creative process particularly in the realm of comedy.  Further, while the decision does not depend on it, the fact that both Plaintiff and Wayans were both African-American is an important fact that was not overlooked. 

Moreover, as expressly stated in the Friends case (despite growing misperceptions in today's society) harassment laws are not civility laws.  The test is not were statements were offensive?  Rather, the test is: Were statements/conduct so offensive that on both an objective and subjective level, it altered the conditions of the workplace and were done with a discriminatory intent. 

Nonetheless, in this age of increasing sensitivities particularly among Millennials, producers are always encouraged to be aware of employment laws and should be sensitive of the concerns of all employees-- in other words just because defenses may exist to permit you to be offensive around or even to specific individuals in pursuit of creativity, doesn't mean you necessarily should do so.