Monday, March 6, 2017

Mockery of Private People Is Not of Public Interest

Daniel v. Wayons, No. B261814 (D2d1 Feb. 9, 2017)

Just when we were starting to have a run of good anti-SLAPP decisions . . .

Plaintiff was a one-day extra on Haunted House 2, a Damon Wayans flick. Plaintiff apparently looks kinda like the character Cleveland Brown from The Family Guy. Wayans noticed the similarity and made a bunch of comments to that effect, as well as other comments about Plaintiff’s appearance that were not well-taken. While commenting, Wayans repeatedly referred to Plaintiff as “nigga.” Wayans then took his routine to the Internet, posting Plaintiff’s picture on his Twitter account and making similar comments online.

Plaintiff sued Wayans on a slew of theories, including FEHA, the Unruh Act, invasion of privacy, right of publicity, false light. Wayans responded with an anti-SLAPP motion, putting in various declarations attesting that Wayans’s words and conduct toward Plaintiff were generally part of his “improvisational creative process.” The declarations also suggested Plaintiff was in on the joke, laughing along and agreeing to be photographed. Plaintiff filed declarations disputing these facts, but the trial court granted the motion. The Court of Appeal affirms in a 2-1 split decision.

The big question is whether plaintiff’s causes of action “arise from” activity protected by the anti-SLAPP statute. See Code Civ. Proc. § 425.16(b)(1), (e)(1)–(4). The majority (Justice Johnson joined by Justice Rothschild) distinguishes a number of cases arising from the employment context on the grounds that in this case, there is no question that whatever harm was inflicted on Plaintiff was the result of Wayans’s speech qua speech. That is, Wayans’s speech is not just evidence of some improper intent that, when tied to a workplace event like getting fired, makes up the kind of typical employment discrimination claim that shouldn
’t be anti-SLAPP protected. Under Plaintiffs theory of the case, it’s that the speech itself that caused the harm.

A fair point

And it’s close, but the speech involved probably falls within the general protected activity categories. Section 425.16(e)(3) covers pubic forum speech, which would generally apply to the comments on the Twitter. And § 425.16(e)(4) applies to any “other conduct in furtherance,” which is probably broad enough to include claims that arise directly from allegedly offensive speech among talent on a movie set. (Justice Lui disagrees on this point.)

Problem is, those two categories—(e)(3) and (4)—also require the speech to have a connection to an issue of public interest. See Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106, 1118 (1999). This is where the majority seems to lose its way. According to the opinion, the fact that the public is generally interested in Wayans’s movies—some of which even include a degree of comedic social commentary—and that lots of people follow Wayans on Twitter, is enough to satisfy that requirement. (More on this below.)

The court goes on to find that Plaintiff didn’t make out a prima facie case on any of this claims. Although the discussion is beyond the ken of this blog, there’s some interesting stuff on whether the use of the word “nigga” is, alone, sufficient to make out a hostile work environment claim and whether making fun of someone on Twitter is transformative enough to avoid a right of publicity claim. The court affirms.

Justice Lui dissents.

His principal point of contention with the majority is that he does not think the on-set conduct should fall within (e)(4)’s category for “other conduct in furtherance” of free speech activity. His essential point is that because Plaintiff wasn’t a willing participant, the fact that the insults thrown his way were part of the Wayans’s
creative process shouldn’t earn Wayans’s conduct the imprimatur of anti-SLAPP protection. In the case law, protection for the “creative process” doesn’t extend to negative speech that is specifically aimed at an employee on account of his race. Moreover, Justice Liu thinks that the breadth of (e)(4) needs to take into account somewhat the general purposes of the anti-SLAPP statute. Without some limiting principle, almost anything can be framed as helping the creative process. He makes a number of examples to point this out.

Justice Liu also takes issue with the merits analysis on several points, suggesting that that majority overstepped its role, which is supposed to be limited to looking for a prima facie case. According the Justice Lui, the court went over this line to predetermine the merits of several of Plaintiff’s claims.


Interestingly, this is the same division that decided the split decision in Wilson v. CNN, a recent (e)(4) case, where Justice Lui wrote for the majority joined by Justice Cheney (not on the panel here), with Justice Rothschild in dissent. The Supremes just granted review in that one.

The (e)(4) point is an interesting one. Line drawing in (e)(4) is tricky. Justice Lui has a point that if you read the statute too literally, in an industry like film that inherently touches on First Amendment activities, pretty much anything can be shoehorned into (e)(4) as “helping” the overall effort. Cases (like Wilson) have been dialing back on that lately, but no opinion has yet drawn a satisfactory line. Even under the (e)(4) test that I have proposed—that (e)(4) should apply only to conduct that on its face has a plausible claim for First Amendment protection—this one is admittedly a pretty close call.

But what really shouldn’t have been a close call here is whether the speech addressed an issue of public interest. The majority is clearly wrong to suggest that the speech here is on a public interest because (essentially) Wayons is famous so people are interested what he says. The “public interest” test cannot just look to on the speaker’s fame. Otherwise, famous people get carte blanche to defame private citizens on totally private issues. That you might have 2 million Twitter followers doesn’t make any thing you say an issue of public interest. The anti-SLAPP statute should not cover you if, for instance, you post on Twitter that a bagger at the local Ralphs’ gave you a venereal disease. Or to falsely accuse your housekeeper of larceny.  Even if you are famous.

The court misses the mark here because it overgeneralizes the subject matter of the speech at issue. In undertaking the “public interest” analysis courts should look to “the specific nature of the speech rather than the generalities that might be abstracted from it.” See Commonwealth Energy Corp. v. Investor Data Exchange, Inc., 110 Cal. App. 4th 26, 34 (2013) (emphasis original). Courts have rejected “the synecdoche theory of public issue in the anti-SLAPP statute,” which is based on a logical facility that a part is “synonymous with the greater whole.” Id. As Commonwealth colorfully put it, “[l]ying about the supervisor of eight union workers is not singing one of those old Pete Seeger union songs[.]” Id.

So framed properly, the speech in question isn’t about A Haunted House 2. Not if it is a good movie, or if people should go see it, or whether its comedy makes some insightful social commentary. Were that the actual subject of the speech, Wayans might have a point. Without generalizing, however, the speech at issue is really about whether “this nigga” (Plaintiff) looks like Cleveland Brown and how funny Mr. Wayans thinks that is. Plaintiff is not a public figure—he is a movie extra with no speaking role. Under the circumstances, these seemingly derogatory comments about Plaintiff’s appearance shouldn’t be of sufficient public interest to bring his claims into (e)(3) or (e)(4). 

As I have said before, and I will keep on saying, this lawsuit might be dumb. But the purpose of the anti-SLAPP statute is not to eliminate every dumb claim just because the defendants industry touches on First Amendment protected activity. Lots of people file dumb lawsuits against movie studios, TV stations, and lawyers. That alone doesn’t make them SLAPPs.

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