Thanks to recent decisions, California may be on the verge of a subtle — but important —transformation in treating lawsuits that allegedly interfere with free speech.
Marlon Wayans is now in danger of becoming the face of a shift in California law — one where the sanctity of free speech doesn't always trump discrimination in the creative workplace. On Wednesday, the California Supreme Court quietly told a lower appeals court to reconsider Wayans' win in an opinion that was published more than two years ago.
In the case, Wayans is facing off against Pierre Daniel over what happened on and off set during the making ofDaniel alleges that Wayans subjected him to repeated offensive language about his African-American race. The plaintiff also pointed tocharacter Cleveland Brown with the comment, "Tell me this nigga doesn't look like... THIS NIGGA!!!"within the context of California's SLAPP statute, which is meant to deter frivolous lawsuits chilling First Amendment activity.
Johnson rejected Daniel’s argument that a movie’s creative process occurs only when the cameras are rolling, saying that this is "an unreasonably narrow or constrained view of the creative process," taking Wayans at his word that being able to improvise is an aspect of comedy. As such, even going on social media to comment on Daniel’s resemblance to a cartoon character, was deemed as furthering Wayans' right of free speech.
Johnson's opinion carried the day, but a few important events have happened as a further appeal was made to the California Supreme Court. First, something quite notable is taking place at the Second Appellate Division, where many of Hollywood's most important legal disputes wind up. Johnsonof two decades worth of harassing behavior including repeatedly groping a female judge on that circuit. His future on the bench now depends on a coming judicial disciplinary hearing. The allegations against Johnson didn't cause re-examination of the Wayans' opinion.
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