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Can casting directors discriminate based on race (or possibly any other basis)? Under the First Amendment, they can. The U.S. District Court for the Middle District of Tennessee recently addressed this question in Claybrooks v. ABC, Inc. In the case, the plaintiffs, two African-American men, alleged discrimination in the casting decisions of the reality television shows The Bachelor and The Bachelorette under 42 U.S.C. § 1981 (prohibiting discrimination in the formation of contracts). Both men had applied to be the leading man in the 2012 edition of The Bachelor and were not selected. As a matter of fact, the court noted that “all of the Bachelors and Bachelorettes have been white.” The plaintiffs argued that the show’s casting decisions have been designed to avoid potential controversy stemming from the possibility of an “interracial romance” and that the show’s decisions have served to perpetuate stereotypical views of acceptable relationships.
The court found that the expressive content of the show, including casting, was protected by the First Amendment and that protection trumped any discrimination claim under § 1981. This decision was rooted in the Supreme Court’s opinion in Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, which found that a discrimination claim could not be brought against parade organizers. There, applying an anti-discrimination statute against the organizers and effectively requiring that they include certain content in the parade would have altered the expression the organizers were creating. The Court noted that free speech protects the right of the speaker to pick and choose what it does or does not want to convey. The Claybrooks court applied this precedent to television casting and found that casting decisions directly affect the “creative content” of a show. The producers of the show have the right to determine what this content should be and what messages a show should or should not convey. While the court lauded the plaintiffs’ ambition in seeking “to eradicate outdated racial taboos,” ultimately the First Amendment protected the producer’s decision not to send such a message.
So, should the court be involved in eradicating casting discrimination to “encourage networks not to perpetuate outdated racial stereotypes?” The defense noted that such interference could impact not only television shows, but entire networks (citing the Lifetime Network, the Black Entertainment Channel, Telemundo, the Jewish Channel and the Christian Broadcast Channel). Or, is this an issue that television can sufficiently address on its own?
– Kimberly Smith
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