A lawyer for an extra in “A Haunted House 2” urged a judge Wednesday to allow her client’s racial harassment case against lead actor Marlon Wayans to move forward, but an attorney for the entertainer said the case should be dismissed on free-speech grounds.
Los Angeles Superior Court Judge Rafael Ongkeko did not immediately rule on the motion and took the case under submission after hearing arguments. He did not say when he would have a decision.
The plaintiff, Pierre Daniel, alleges in a suit filed Aug. 25 that Wayans subjected him to offensive language about his race and unfavorably compared him to an animated character. Both Daniel and Wayans are black.
Daniel also is suing other parties, including IM Global Octane, but the motion before the judge only applies to the plaintiff’s allegations against the 42-year-old Wayans.
According to the lawsuit, in September 2013 Wayans tweeted photos of Daniel and Cleveland Brown, an animated character that first appeared on the hit television series, “Family Guy” and later into another series entitled, “The Cleveland Show.”
Daniel alleges Wayans used a caption that said in a derogatory way that the plaintiff resembled the character. He also maintains the actor made fun of his hair, mustache and weight.
Wayans’ attorneys, William Briggs and Celeste Brecht, argued that the part of the case against the actor/comedian should be tossed because his actions — which included the use of the “N” word and a slang variation of it — were done as part of making and promoting “A Haunted House 2.”
But Daniel’s lawyer, Tessa King, said Wayans posted the photos of her client on the actor’s website and on his Twitter account for commercial reasons.
“That is not protected speech,” King said.
King said Wayans did not have Daniel’s permission to take his photograph. Many of the disparaging remarks Wayans made to Daniel occurred during breaks in filming, King said.
“Mr. Daniel did not say, ‘Yes, please, racially harass me when you can while I’m on break,’ ” King said.
King said the statements allegedly made to Daniel during filming breaks were not protected speech because there is no public interest in offensive remarks that have nothing to do with the creative process.
However, Briggs said Wayans used the “N” word “in the comedic sense, not the pejorative sense.” He also said Daniel signed a waiver when he became an extra and knew beforehand that he would hear things on a film set that one would normally find offensive outside such an arena.
“No one racially harassed Mr. Daniel,” Briggs said. “He voluntarily appeared on a movie set where a raunchy, R-rated comedy was being filmed.”
Briggs said those involved in making films often improvise in order to make the best movie possible.
Briggs also said that Daniel consented to being photographed by Wayans.
“It’s common knowledge that anybody on a movie set is going to have their photograph taken,” Briggs said.
In a sworn declaration, Wayans defended his use of the “N” word and the informal version of it.
“I was raised in an environment where black men and women frequently used the phrases … as terms of endearment when speaking to each other,” Wayans says. “As an example, my father, siblings and friends frequently call me (“N” word) or my (“N” word) when greeting me.”
The words “are part of my lexicon … part of my creative process,” according to Wayans.
— City News Service