Doing stand-up comedy is no easy thing: for starters, it’s hard enough being heckled by someone in the audience because of something the comedian said. And then, things could get even more complicated when someone in the audience chooses instead to throw something at the comedian onstage because of something that the comedian had said. Still, the complicated situation could get even more serious when the same audience member who throws the stuff at the comedian then decides to drag the comedian to court as well? With a situation like this, any funnyman faces a couple of hard, unfunny choices beginning with how to react to the person attacking him onstage and then figuring out how to defend himself in the attacker’s lawsuit? But seriously, at least one comedian, Eddie Griffin, is grappling with these issues these days.
First, here’s what happened:
In July 2012, Griffin was performing onstage at Tommy T’s Comedy Steakhouse in Pleasanton, California, when a woman in the audience threw water at him. Griffin retaliated by emptying his water bottle on her, and a fracas ensued. The woman and her friend Leslie Champlin were ejected from the club before the cops arrived; the club was forced to close for the night and the show didn’t go on. Not wanting to let matters slide, Champlin filed a lawsuit against the club and the comedian, claiming that her civil rights were violated because she and her friend were discriminated against based on their sexual orientation. They were a lesbian couple. She also sued them for battery and negligence. She claimed that Griffin’s shtick targeted both she and her girlfriend because they were a lesbian couple, thus leading up to the water-throwing incident and their eventual ejection from the club. She also claimed that the other audience members turned on them as well because of their sexual orientation.
So, exactly how much trouble are Griffin and Tommy T’s in? Well, let’s consider the claims against them: First up, the battery claim. In layman’s language, a ‘battery’ occurs whenever someone purposely makes physical contact with somebody else without proper justification. Here we’re talking about an unlawful physical contact that was done intentionally. What makes the contact ‘unlawful’ is that it is an offensive coming-into-contact with another person without a good excuse. As far as offensive conduct toward another person goes, a contact made either by touching somebody or hitting that person with a stick is viewed the same way as a contact made by pouring something like a beverage at the person or perhaps even spitting at the person. Of course, this means that actions such as accidentally brushing up against another straphanger inside a crowded subway train or inside a crowded bus, for instance, would not be considered a battery. Same thing goes for a cop grabbing the arm of a suspect during an arrest. In either case, the contact was either accidental as in the subway train situation or had a lawful justification for it, as in the case of the cop.
In Griffin’s case, he is being sued for pouring water on the plaintiff. Well, such an act is obviously a ‘battery’ and it won’t be a good defense for him to say that he was retaliating against her or paying her back in kind. Of course, if he poured the water on her in self-defense that would be a different story. But this is not a self-defense situation because he didn’t have to pour water on her in order to avoid some physical harm to himself. He could have simply walked away from the confrontation. And of course, he could always turn around and sue her himself for ‘battery’ because she did it to him first. And for her part, it cannot be a good defense for her to say that she threw water at Griffin because he provoked her with his anti-lesbian shtick or routine. Nope, that won’t cut it! So, as a practical matter, when it comes time for the court to figure out what damages will be awarded to her for her claim, she will likely be faced with a situation that is more like a wash, as in a battery for a battery.
Then there is the negligence claim against the comedy club Tommy T’s. Here, the plaintiff (Champlin) is essentially claiming that the damage or injury she suffered during the encounter occurred because Tommy T’s failed in its ‘duty’ to prevent what happened to her. She alleged that the comedy club knew that Griffin was drunk when they let him take the stage for his comedy routine. As a result, the plaintiff will likely be arguing that Griffin’s anti-lesbian rant, coupled with his other offensive actions, such as his thrusting his groin in front of her and her friend and later on pouring water on them, were the kinds of damage or injury to other people that somebody in such drunken state would do. The point of the plaintiff here being that the comedy club was in a position to foresee Griffin’s wrongful actions toward the plaintiff ahead of time and could have taken steps to prevent it. That the club failed to do so is the reason plaintiff Champlin is seeking to hold them liable for negligence.
Well, at the end of the day, it seems like Ms. Champlin might have a few problems with this claim: for starters, holding one person responsible for the negligence of another person is usually applicable to ‘master-servant’ relationships, for instance, the relationship of an employer and an employee. Even so, it is still a tough sell to try to hold a master or an employer responsible for the class of wrongful actions that are regarded as ‘intentional torts’ when those acts are committed by the servant or employee. Griffin’s actions here belong to the category of ‘intentional torts.’ (In quite simple language, ‘intentional torts’ are wrongful actions done on purpose, rather than things done out of neglect or due to a failure to be careful in one’s actions.)
In our case here, Griffin is not an employee of the club: he’s simply one of many comedians who get booked to perform at the comedy club; in that capacity, he’s more of an ‘independent contractor’ rather than an employee. Long story short, since we are basically talking here about the intentional tort or wrongful action of an independent contractor, rather than an employee of the comedy club itself, it is fair to say that Ms. Champlin’s odds of winning her negligence claim in this case against Tommy T’s are far from good.
And, finally, there is the civil rights claim of discrimination based on sexual orientation. As far as claims go, this may well be the strongest hand that the plaintiff (Champlin) can play in this entire lawsuit. Incidentally, the Griffin affair recalls the case of Canadian comic Guy Earle in 2007 at a Vancouver restaurant when he had a nasty verbal encounter with three lesbian hecklers who were attending an open mic show at which he was the host. The women sued both Earle and the restaurant for discrimination based on sexual orientation. The restaurant was sued for not preventing Earle’s actions. Earle claimed he attacked the women with homophobic slurs after they disrupted the show by not only ignoring his requests that they stop talking but also by their taunting him onstage and flipping him the bird. Well, the human rights tribunal that heard the case chose to side with the women and (get this!) awarded thousands of dollars in their favor against both Earle and the restaurant. The appeal is still pending.
To be sure, Earle’s case is somewhat different from Griffin’s case in that there was no immediate physical contact onstage in Earle’s case (a physical confrontation occurred off-stage afterward); plus, Earle’s case took place in Canada before a government agency that was not a court. Yet, in America, just as in Canada, discrimination based on sexual orientation is against the law. In so many American states, including California where the Griffin incident took place, there are specific laws that make it illegal to discriminate against folks or to harass them in places of public accommodation, resort or amusement on the basis of their real or perceived sexual orientation. Speaking of ‘harassment’ under these laws, actions or behaviors that can be regarded as hostile, offensive or intimidating all come under the umbrella of ‘harassment’ and when that happens, damages are usually awarded, mostly for pain and suffering.
In our case here, it can be said that regardless of what defenses Griffin might have to this particular claim, his actions toward the two ladies, on its face, probably qualifies as ‘harassment’ under the anti-discrimination laws; and these actions no doubt arose from Griffin’s perception that the ladies were lesbians. To be sure, it is possible that Griffin and the restaurant may well end up beating this particular claim, considering that the two women were ejected from the club after a fight in the same way that the club might have chosen to eject any other disorderly patron, lesbian or not. Plus, it’s not as if the ladies were the only ones who missed out on the entertainment that night since because of the fracas the club reportedly closed for the night anyway.
Yet the fact remains that at least the ‘spirit’ of the anti-discrimination laws were broken in the process: if they ladies would not have been perceived as lesbians, they probably would have enjoyed that night’s comedy show without incident, just like other patrons, including other women in the audience. But instead, thanks to their being ‘perceived’ as lesbians, they got picked on, endured crude gestures directed at them, ended up getting in a fight, then getting ejected from the club. They suffered an unpleasant experience that is against the spirit of the law.
As the Guy Earle case shows, comedians have been down this path before and the result wasn’t a pretty one. Chances are that if this case would have been brought in an earlier time, say, 30 or 40 years ago, the situation might have been different. But, for better or for worse, we live today in an age of political correctness where homophobia is increasingly perceived as not ‘cool.’ Meaning that it is entirely possible that ‘intangible factors’ (call them the ‘atmospherics’ of a trial) such as the negative attitude of today’s society toward homophobic actions and behavior could well tip the scales in a close case like this one when the court is weighing which way to throw its support.
In the end, of course, it’s hard to predict how this particular civil rights claim will be decided given the water throwing on both sides and more. But in the interest of keeping the focus on comedy and avoiding distraction, it might be better not to wait to see how the court will decide this claim, and to just settle this whole matter and move on. At this point, that’d be the smarter thing to do, it seems.