There is an interesting ruling in Nashville this week where U.S. District Judge Aleta Trauger ruled that ABC and the producers of “The Bachelor” and “The Bachelorette” are protected by the First Amendment right in making casting decisions — even in the face of discrimination claims over the failure to cast minorities on the television series “The Bachelor.”
Two black men, Nathaniel Claybrooks and Christopher Johnson, sued on the basis of alleged discrimination in casting. However, ABC argued that such decisions fall squarely within the first amendment and free speech — a position that I happen to agree with. More importantly, it is a position that Judge Trauger agrees with. Trauger described the controversy succinctly:
ABC’s website states that “there has been an eclectic mix of bachelors over the years. We’ve seen a doctor, football star, prince, millionaire, [and a] single dad.” (Am. Compl. ¶ 37 (brackets in original).) Despite this “eclectic mix,” none of the Bachelors or Bachelorettes has been a person of color — that is, across 24 combined seasons, all of the Bachelors and Bachelorettes have been white. Furthermore, the vast majority of “suitors” for the Bachelor and Bachelorette have been white, and the few non-white contestants tend to be eliminated early on in each show. Thus, the weekly Shows typically feature a white Bachelor/Bachelorette and all (or nearly all) white suitors.
However, that does not alter the right of writers to structure their cast and artistic work as they wish. The court applies strict scrutiny to the case as a content-based challenge. The court relied on Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 568, where an Irish American Gay, Lesbian, and Bisexual Group of Boston sought to march in the annual Saint Patrick’s day parade in Boston against the wishes of the organizers. The United States Supreme Court reversed the lower court and found that “parades are a form of expression” entitled to First Amendment protection and held that the organizing Council was not required to show that the parade had a particular expressive purpose to justify First Amendment protection. In a holding that foreshadowed the claim against writers, the Court noted that “a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a “particularized message,” would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.” Id. at 569-70.
Accordingly, 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.”
The ruling raises a general issue that we have previously discussed in terms of television stations preferring younger anchors or restaurants preferring attractive waitstaff.
As will come as no surprise to many on this blog, I tend to view this matter through the lens of free speech and the need to protect such expression. As previously discussed in a recent column, free speech is under attack in the West — dying not from one blow but a thousand papercuts including well-intentioned discrimination laws.
What do you think about this ruling?
The case is Claybrooks v. ABC, 2012 U.S. Dist. LEXIS 147884 (MD Tenn. 2012).
Source: Hollywood Reporter