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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  While the court lauded the plaintiffs’ ambition in seeking “to eradicate outdated racial taboos,” ultimately the First Amendment protected the producer’s decision not to send such a message.

So, should the court be involved in eradicating casting discrimination to “encourage networks not to perpetuate outdated racial stereotypes?”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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7 Responses to Reality T.V. Casting Protected by the 1st – As the Founders Intended

  1. Tracy Hancock says:

    I thoroughly enjoyed this post. I can’t say that I’m very informed about the Bachelor, but I’m an avid fan of the reality show Survivor. There’s no doubt that some reality shows, like Survivor, definitely care about diversity. The cast of any given season of Survivor is always a melting pot of races, ethnicities, and religious beliefs. It sounds like ABC should take a page out of CBS’s book and do the same thing.

  2. KM says:

    Great post, Kimberly. I agree with the sentiment that networks should not “perpetuate outdated racial stereotypes” but federal courts becoming involved in casting decisions for shows like the Bachelorette seems ridiculous. Ironically, for all of reality television’s faults, I think the genre has done a great deal to eradicate outdated taboos, racial and otherwise. For instance, the Real World has shown us what happens when people “stop being polite…and start getting real” for the past twenty years—showcasing diversity in race, religion and sexuality. Especially in the show’s early years, it addressed diversity head on. The show is possible because of expert casting directors who know what people want to watch. Sometimes, that involves a diverse cast, other times it does not.

  3. F says:

    Kendall,
    I think the court could likely find sufficient reasons for why the minority applicants were refused. Why would the producers essentially waste hundreds of thousands of dollars on hiring/paying expenses for minority contestants who the bachelorette is just going to cut ASAP? For instance, while the non leading contestants may not be paid, they are given free air fare, lodging, food, activities, etc. And are these contestants even actually employees? Considering that the contestants stay in pretty snazzy hotels, houses, etc. and go on exotic trips, and participate in extreme and fancy activities, I’d say the costs of these things add up to a large amount of money. So let’s say you have a white leading lady who has expressed to the produces that she is only interested in marrying a white male. (After all, the point of the show is to end with an engagement) The producers know that the bachelorette is just going to cut the minorities, and thus they have wasted spots on the show that could have gone to other contestants who would have created drama and conflict and sparked watchers’ interest as the bachelorette had emotional breakdowns over trying to decide who to marry. The producers should not be required to hire contestants just for appearances sake and devalue the dramatic tension of their show in the process. The real root/solution of the issue could boil down to hiring bachelors and bachelorettes who are open to dating people of different ethnicities. For instance, there’s no guarantee that hiring an African-American bachelorette would not result in the white males being cut in the first few rounds. I think the issue may not be that the show is trying to perpetuate a stereotype or that is it uncomfortable with interracial relationships–it could be that the bachelors and bachelorettes are the ones who are expressing these views and the show is simply catering to their wishes in terms of the demographic of the contestants. Furthermore, and this is strictly hypothetical again, another business objective could be that the show did research/studies and found that the majority of their viewers were white and were interested in watching white contestants/leads. Should the court force the producers to go against their consumer base’s interests, which would likely result in decreased ratings and therefore decreased advertising revenue, which could lead to the show having to be canceled?

  4. Hunter says:

    Although Kimberly’s post quoted a portion of it, I wanted to call attention to the final paragraph of the analysis section:

    “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.”

    The rest of the opinion makes it clear that the court sees the plaintiffs’ argument as internally inconsistent and considers their proposed test unworkable. Still, Judge Trauger appears fundamentally sympathetic to the overall goals of the suit. If a more workable test could be devised, I wonder if a subsequent suit (likely outside the M. D. Tenn.) could make it past the motion to dismiss stage.

  5. Swathi says:

    Do we have any information about the extent to which minorities self-select out of applying for the lead role, or indeed, any role, on the Bachelor/Bachelorette? Many of my fellow minority friends have indicated that they view the show as demeaning and would never participate because they do not wish to be associated with the stigma with which Asian Americans view the franchise. I agree that if possible, there should be more minority participation. However, if the directors are unable to locate a suitably attractive, qualified minority to fill the role because of the small pool that elects to participate, can we really blame them? If it really is the case that the franchise doesn’t receive enough applications from minorities, deeming the failure to cast a minority as violative of § 1981 could be detrimental.

  6. Kendall Short says:

    As a dedicated Bachelor/Bachelorette fan, it hasn’t escaped my notice that not only does the franchise refuse to let a person of color carry the leading role, but there is usually only a single token minority among the contestants vying for attention, who then gets eliminated in the first round. I think that, much like in Virginia v. Loving, the government may need to push society to accept interracial couples when the public may not otherwise want to. While acknowledging First Amendment speech and religion protections, the Constitution also protects minorities. Perhaps in the realm of reality-tv, we could adopt some of the standards informing employment discrimination law (based on these Constitutional protections), which balance the needs of the employer to run its business as it sees fit with the needs of the employees to have an equal opportunity to have a job. If the show has a sufficient reason to reject all minority applicants (I can’t think of what that reason might be), then the court could find in its favor. However, if the show simply wants to perpetuate outdated stereotypes, then I think the court should push the show to allow minorities greater opportunities to participate as either contestants or even the leading role.

    • TH says:

      I have to disagree about the court’s role on this issue and any supposed “Constitutional protection of minorities” that would reach the casting decisions of a reality show. The effects of the court deciding to champion minority rights at the expense of the right of free speech would be far-reaching and disastrous. Where would such a mandate end? And far more basic, can the courts, through casting requirements, actually force private actors to convey a message against their will?

      The answer is and should be no. Forcing a private actor to cast certain individuals or individuals of a certain category would be a broad overreaching of government that would violate the First Amendment. First of all, the First Amendment was written to protect all speech, not just the speech of the minorities. The producers have the right to craft the message of their show or craft what their message is not, and one of the messages the producers do not wish to avoid is championing interracial marriage. Secondly, there is no government actor here depriving the members of a racial minority of any rights, as it is a private actor making the decision of the message of the show. Additionally, there seems to be no control of the message by the government according to the standard put forth by the court in Johanns v. Livestock Mktg. Ass’n and subsequent cases. Thirdly, any claimed Constitutional right of a minority that would reach such an issue as a casting decision is tenuous at best. An activist court could choose to create another “penumbral right” as it did in Griswold, but there is hardly support for such an expansion in current Constitutional jurisprudence.

      Additionally, forcing casting decisions on a producer through an employment discrimination model would be a broad expansion on employee rights, government power, and a huge diminishing of employer rights. Casting is far too integral to the message of the show to be considered mere employment. And even if casting could be equated to employment , the looks and features of an individual in a reality show are as integral to the casting decisions as the degree and experience of a doctor in a hiring decision by a hospital or of a pilot when being hired by an airline. Surely, we would not advocate that just any surgeon or pilot may be hired without first looking at his qualifications. There must be an exception for this type of activity.

      Ultimately, the court should stay out of private decisions regarding casting for shows. If, however, it should decide to expand employment law to cover casting decisions, it should make an exception due to the close link between casting decisions and speech.