We've Got Hollywood Covered

Hollywood’s Dirty Little Secret to Beat Defamation Lawsuits: Statute Designed for Underdogs

A recent win for Marlon Wayans is the latest sign that a California law meant for small-town citizen activists has been seized by giant media conglomerates to squelch suits

The entertainment industry just chalked up another victory armed with a potent legal tool: California’s SLAPP law.

The most recent win was by actor Marlon Wayans, who won dismissal last month of a lawsuit by a movie extra who claimed that Wayans racially harassed him on Twitter and on the movie set for “A Haunted House 2.”

A California Court of Appeal ruled that the SLAPP statute gave Wayans the power to quickly dismiss the lawsuit by movie extra Pierre Daniel because Wayans’ “allegedly harassing and offensive” tweets and verbal jabs were protected “free speech” in connection with “an issue of public interest.”

Daniel sued over Wayans’ tweet that posted a photo of the extra next to the black “Family Guy” cartoon character Cleveland Brown, saying: “Tell me this n[—–] don’t look like . . . THIS n[—-]!!! Ol Cleveland Brown ass looking @ahhmovie 2 @whatthefunny I’m hurting!”

The extra, who is African American, also sued Wayans claiming that the actor repeatedly called the extra a slang version of the n-word that ends with “a” instead of “er” on the movie set.

Wayans’ conduct was protected by the law, the court explained, because his comments on the set of the movie for “A Haunted House 2” were part of his First Amendment-protected improvisational creative process of creating a character named Cleveland, as was his tweet to promote the movie to his large Twitter following.

“California courts have found that there is a public interest in the meaning of the anti-SLAPP statute ‘in the writing, casting and broadcasting of an episode of a popular television program,'” the court explained.

The court dismissed the extra’s claims for hostile work environment, finding that that “intra-racial” use of “n—-” is not a racial slur “in today’s world.”

The court also dismissed violation of Daniels’ right of publicity and intentional infliction of emotional distress claims, concluding that Wayans’ use of the extra’s photo with the cartoon character was “transformative” and the jabs did not reach the outrageousness requirement.

The Wayans victory is the most recent in a string of wins by Hollywood, which has persuaded California courts that the Strategic Lawsuit Against Public Participation law is so broad that it protects powerful entertainment companies, television networks, actors, producers, and distributors.

“Entertainment companies now regularly turn to the anti-SLAPP statute to defend against claims because as content-creating businesses, their activities are broadly protected by the statute,” said Thomas Burke, a partner at Davis Wright Tremaine and author of the book “Anti-SLAPP Litigation.”

The statute was not originally enacted to protect the entertainment industry. The California Legislature enacted the SLAPP statute in 1992 to protect mostly small-town citizens from expensive lawsuits brought by large developers and companies to chill the citizens’ protests and testimony against development in their neighborhoods.

The law says that anyone could bring a SLAPP motion to get rid of a lawsuit if they could show that they were being sued for exercising their right to speak at government hearings or exercising their right to free speech “in connection with an issue of public interest.”

But in recent years the courts have interpreted the “public interest” requirement so broadly that it now applies to any lawsuit that targets speech about “any issue in which the public is interested,” according to a California appellate court.

“In other words,” the court said in Nygard v. Uusi-Kerttula, “the issue need not be ‘significant’ to be protected by the anti-SLAPP statute — it is enough that it is one in which the public takes an interest.”

These decisions mean that the SLAPP law covers pretty much anything created by Hollywood that is followed by a large number of people, whether in tabloids, social media, websites, or other sources of information.

One of the biggest entertainment industry victories came in 2011, when a California appellate court ruled that a written casting summary for CBS’ “CSI: Crime Scene Investigation” was covered by the SLAPP law because “the public is interested in the creation and broadcasting of that episode.”

The court dismissed a defamation suit by Melinda and Scott Tamkin, who had claimed they were defamed because the show’s casting summary author knew them and used their real names and professions in the summary, but inaccurately painted them as hard-drinking, kinky-sex-loving couple and the husband as a murderer.

The court ruled that a reasonable reader or viewer would not perceive the Tamkin characters, who were renamed in the actual episode, as the real Tamkins.

In 2013, the California Court of Appeal ruled that CBS could use the SLAPP law to dismiss an employment discrimination lawsuit by Kyle Hunter, who claimed he was the victim of sexism when he was rejected for a weatherman job. The court found that CBS’ casting decisions for on-air talent are “acts in furtherance of its First Amendment rights” and “weather reporting is a matter of public interest.”

The court also found that Hunter was not likely to win his discrimination claim.

Just last year, a California appellate court held that a throwaway line in David O. Russell’s acclaimed feature “American Hustle” about microwaves supposedly sucking the nutrition out of food was protected by the SLAPP statute.

The court ruled that both the movie and the theory by author Paul Brodeur on which the line was based were speech about a matter of public interest. Brodeur’s defamation and other claims were dismissed as unwinnable.

There’s another rub for plaintiffs who dare to sue the entertainment industry: The SLAPP statute’s mandatory fee-shifting provision means that losing plaintiffs must reimburse the deep-pocketed entertainment and media defendants for their legal fees.

That means even movie extras and would-be weathermen might end up with a huge bill that they must pay to the entertainment company, news network, or actor who beats back their lawsuits with a SLAPP motion.

Susan Seager is a Los Angeles First Amendment attorney, an adjunct professor teaching media law and intellectual property at the University of Southern California, and columnist for Dan Abrams’ Law Newz. Before starting her own private practice, she was a vice president in the litigation department of Fox Entertainment Group in Century City, where she oversaw litigation involving Fox Television Stations, Twentieth Century Fox Film Corp., and National Geographic. Her areas of practice include defamation, privacy, right of publicity, copyright, reporter subpoenas, and SLAPP litigation. Before working for Fox, she worked as an attorney for Davis Wright Tremaine in Los Angeles. One of her recent articles for the American Bar Association Communications Lawyer was “Donald Trump is a Libel Bully but also a Libel Loser.”