Freedom to Discriminate? First Amendment Protection of Television Casting Choices

In Claybrooks, two African-American men sued ABC on the basis of alleged casting discrimination in the popular show, The Bachelor. Plaintiffs claimed that they were improperly denied the opportunity to be the Bachelor, in violation of Section 1981, which provides that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property . . .” Though ABC admitted that over 24 combined seasons, most of the suitors and all of the Bachelors and Bachelorettes have been white, they nonetheless successfully argued that their casting choices are a form of artistic expression protected by the First Amendment.

In the Claybrooks opinion, the court relied on Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, where an Irish American Gay, Lesbian, and Bisexual Group was denied the right to march in Boston’s annual Saint Patrick’s day parade because the organizers did not want to promote the group’s message of homosexual acceptance. The United States Supreme Court found that “parades are a form of expression” and the First Amendment protects the expresser’s control over their message even if that message runs counter to progressive beliefs. This logic was also used in Boy Scouts of America v. Dale, where despite plaintiffs’ admirable social goals, the majority denied the forced employment of a gay Scout leader because it “would significantly burden the [Boy Scouts organization’s] right to oppose or disfavor homosexual conduct.”

The obvious concern here is a slippery slope. How far will courts take this First Amendment defense? Must everyone involved in a “form of expression” be a particular race, orientation, or gender to achieve the desired vision? Where should the line be drawn?

There have been instances where courts chose to put limits on free speech in television. In FCC v. Fox Television Stations, Inc., the Supreme Court upheld a narrow exception to free speech under 18 U.S.C. § 1464, which permits the Federal Communications Commission to ban indecent material from radio and television on the grounds that broadcast media is widespread and available to children. Though the Court chose to avoid the constitutional question, it certainly seemed as if a limit was being applied to free speech in favor of a societal goal, which is exactly what the Claybrooks, Hurley, and Dale courts argued against.

In fact, the Claybrooks opinion suggested that artists cannot be forced to deliver a particular message to the public, even if not delivering that message furthers discriminatory views and behaviors. This reasoning has been applied to certain practices in film. Specifically, in Russell K. Robinson’s article, Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms, he notes that interracial romance has been regularly used in movies as a justification for discriminatory casting “based on the perceived racial prejudice of the audience or the insertion of an unwanted racial dynamic.” This is considered a “strong defense” to discrimination claims because race can significantly affect the themes of the story, and subsequently, the artist’s work. In keeping with this idea, in the Claybrooks decision, Judge Trauger held:

“The plaintiffs’ goals here are laudable. They seek to support the social acceptance of interracial relationships, to eradicate outdated racial taboos, and to encourage television networks not to perpetuate outdated racial stereotypes. Nevertheless, the First Amendment prevents the plaintiffs from effectuating these goals by forcing the defendants to employ race-neutral criteria in their casting decisions in order to ‘showcase’ a more progressive message.”

While this reasoning makes sense as a means of protecting artistic freedom, it is important to consider its implications. In a recent Cheerios commercial, the featured interracial couple and their daughter produced such strong racial criticism on YouTube that the prior comments had to be closed. These comments included remarks about Nazis and racial genocide. Because of the vast reach of film and television, discriminatory casting can perpetuate the inequalities and narrow-minded views already present in society. The issues here are complicated and there may not be a realistic answer. But, it is important to ask ourselves: at what point does the protection of one freedom inhibit another?

Elizabeth Polido is a J.D. candidate, ’15, at the NYU School of Law.