Not Exactly Between the World and Me.

Bernstein v. LaBeouf, No. B288054 (D2d3 Dec. 6, 2019)

So Shia LeBeouf and a girl, both loaded, walk into a bar—Jerry’s Deli in Studio City. A Bartender refuses to serve them. Shia freaks out, tries to get behind the bar, and is subsequently nabbed and escorted out by security. On the way out, Shia loudly calls the bartender a “Fuckin’ Racist Bitch,” and ultimately shouts out to the crowd, “Wake Up, this Motherfucker is a Racist.”* Of course, this being LA, someone filmed it and it was quickly posted to TMZ. Which earned Bartender, to his displeasure, the lasting moniker, “The Racist Bartender.” 

Bartender sues Shia for defamation, to which Shia responds with an anti-SLAPP motion. The trial court denied it. In a solid analysis of the Supreme Court’s recent FilmOn opinion, the Court of Appeal affirms. As the Court explains, calling some random bartender in the valley a racist has no connection to a public issue and thus is not protected activity under Code of Civil Procedure § 425.16(e)(3) or (4).

The Court rejects the argument that “Shia said it, and he’s a little famous, and people pay attention to dumb stuff famous people say, so it must be a public issue.” (That argument previously prevailed, pre-FilmOn, in the Wayans case. The Supreme Court has granted review in Wayans and transferred it back to the 2/1 for consideration in light of FilmOn.) Under FilmOn, the public issue analysis looks to the specific content of the speech, not the identity of the speaker. And then it examines the quality of the connection between the speech and the issue that is purportedly being addressed. Because drunkenly declaring a bartender to be a “Fuckin’ Racist Bitch” is not furthering some overall discussion of racism in American life, the speech is not protected activity.

Affirmed.

*There’s a lot of weird capitalization going on in the quotes in this opinion that I can’t figure out.