ABC Wins Major Discrimination Challenge Over Casting Of “The Bachelor”

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. ΒΆ 37 (brackets in original).) Despite this “eclectic mix,” none of the Bachelors or Bachelorettes has been a person of color β€” 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

33 thoughts on “ABC Wins Major Discrimination Challenge Over Casting Of “The Bachelor””

  1. LK,

    One of my favorite actors lived in MI and is one of the main voices for Darth Vader which in my opinion was the best…. On a side note.. He stuttered in school.. But for a wonderful teacher that helped him, he may not be where he is today…..

  2. Leejcaroll, is an aggregation site with far ranging topics and little politics. Cory Doctorw, Sci-Fi author and Renaissance man and perpetual child in his constant delight with quirky stuff- books, comics, the new ‘maker’ movement and that new tech, space/science, dog and/or cat vids and pics at least a couple of times a week, the politics of the information revolution and the political threats to it and just bunches of stuff. It, like this blawg is a daily must read for me.

  3. I don’t know how old you were when you were being given the opportunity to see the actual plays live but I bet it was a great experience at any age. We, as high-schoolers would be taken on one or two field trips a year to be exposed to culture and the arts. I cam from a pretty tough HS and I was amazed at how receptive and receptive my mean-girl, bad-boy classmates were. I still recall an assortment of musicians and stage actors all in town for various performances that appeared with the St. Louis Symphony. The lead actors from Porgy and Bess, the Broadway production were in town to lead the Municipal Operas production and a famous pianist and violin player (forgot their names) were in town for a charity event.

    The theater (Fox Theater) was filled with kids from all the high schools at the once a year day with the Symphony. There were kids literally moved to tears by the art. A couple of the ‘bad’ kids from my school, seated near me, were moved to near rapture. I had always hated the school experience but that was the first time I started asking myself things like ‘what is wrong with school- why can’t school do this all the time?’ Meaning engage us, make us happy to see and learn about new things? Those field trips were eye-opening on many levels.

  4. Oh I dont know what boing boing is (out of the loop a lot when it comes to sites) but puppies best reality show there is (*_))

  5. wouldnt open the part click ):
    Im with you I like the ones where they actually have to work, for me lots of cooking top chef, chopped, etc. Its hard to make your face say Yum when your tastebuds are saying yucky (:
    I missed your instructions Have to try and open that.
    So pleased tonight sweet genius is back, get to watch the makings of decadence without ingesting the calories.

  6. leejcaroll, Ah yes, project Runway, one of my guilty pleasures. I like to watch shows wherein people are actually creating something and some of the designers on that show have been amazing, and I’m not at all into fashion- don’t care a bit about it. I did run across a website in the middle of the night during one of my 30 hours without sleep incidents that had a famous designer using a couple of my favorite actors, DaFoe, Oldman, Brody as runway models, Willem Dafoe walks like a boss but can’t resist smiling and giving a little wave at the final, full circuit. Such bad form πŸ™‚ It was Prada’s nod to steampunk fashion. The link’s below if you are interested in steampunk fashion or cough*Dafoe*cough. Just remove the asterisks and close up to one word.

    I’ve been checking in on huge Great Dane named Chaos (linked from BoingBoing) that has a live stream; she’s gigantically pregnant and going to have her pups any time now. I want to see baby puppies! My taste in watching media is kind of eclectic πŸ™‚

    Yep, Smits πŸ™‚ *****

  7. AY, yes, Fishburn is on CSI and I watched a couple of them just to see him tho I don’t don’t watch the series. He has ‘presence’, his size and build helps with that but it can’t explain completely his dominance of the screen. He’s good.

  8. Lottakatz I used to watch runway until they picked someone to me was absolutely not the bst but each week when he stayed I said well the prodecer sure wants to keep the problems he causes alive so there is something else besides sewinig going on. It is what has kept me from intentionally choosing to watch it. (and yep Smits ((*_*)) )

  9. From The Bachelor to The Bard, what an evolution. Every year we would study and then view a Shakespeare play @ the Shakespeare Theatre in Stratford, Ct. It was a very cozy venue. We saw Macbeth, Othello, As You Like It[underappreciated], and Taming of The Shrew. I’ve watched the aforementioned films and agree w/ the analysis. However, these masterpieces, created by the greatest writer to ever live, are much better on the stage. I read in the NYT this theatre is abandoned and falling down. A metaphor for our culture. Do you all realize many so-called feminist English teachers don’t teach Shakespeare because he is sexist?

  10. @Betttykath: I am suggesting exactly that, or suggesting that is what the producers fear: That putting a black bachelor or bachelorette in the leading role (not as a suitor) would ruin the fantasy for enough whites that they would change the channel. The main role is the “pyschological identification” role, it isn’t a supporting role.

    Using the examples of stations or shows geared to Black viewers, or LGBT viewers, or older viewers, or religious viewers, or family viewers, catering to one demographic tends to exclude those far from that demographic.

    That is not ME being racist, that is me looking at statistics and stating a sociological fact; some whites clearly have difficulty identifying with blacks in leading roles. Pointing out that racism exists is not racist.

    But I would say this isn’t racism on the part of those viewers, it is more like the 90% racial preference that exists in marriage itself.

    Here is a link to 2010 Census Table that describes the breakdown of the interracial marriages (and non-married couples).

    While Swarthmore was correct that “interracial” amounts to about 9.5% of married households; the White+Black marriages amount to only 0.75% of all marriages. Most interracial marriages are White+Hispanic, White+Asian, or two non-whites.

    If I am a producer of a romantic marriage show, I want the marriage to resonate with the population, and 0.75% of White+Black marriages in the general population would not bode well for that resonance. Is it racist for whites and blacks to marry at 1/24 of the expected rate compared to just hooking up couples at random?

    An all business producer doesn’t care, it isn’t his racism, he just wants people to watch the show, and he gets the most viewers if he avoids a black leading man/lady. If the suitors were white, the show becomes interracial black+white and 99% of the audience wouldn’t choose that marriage for themselves; if the suitors are black it becomes (like BET) a show for blacks, and (like BET) a large percentage of the white viewers change the channel, because it no longer feeds their own fantasy.

    At least, I think that is the surface of their demographic analysis.

    For myself, 72.4% of the population report their race as “white alone”, 12.6% report as “black alone.” If any two people are chosen at random, the chance of picking one black and one white is 18.25%. The current census reports Black+White marriages at 0.75%, 24 times smaller. That means it is virtually certain that in today’s culture, in marriage, blacks and whites are self-selecting to NOT marry each other. Choice is clearly the dominating factor.

    That is what I mean by a “sociological fact” the producers are heeding.

  11. When I was in college, our opera workshop decided to do a production of ‘Porgy and Bess’ with a mixed race cast. Guess what? The local NAACP made such a fuss that we ended up doing ‘La Nozze’ instead. Just sayin’…

  12. If I recall fishbone was in csi Los Vegas and was excellent….. Ted Danson is doing a great job…..

  13. LK,

    I thought Gibson’s Hamlet was surprisingly passable, but without the strong supporting cast (Close and Ian Holm both stood out), it wouldn’t have been anything but average. Good production values though.

    I also loved McKellen’s Richard III. People who think of him solely as Gandalf (although he owns that role) or Magneto (a role Michael Fassbender now owns in my mind, no slam to Sir Ian) simply don’t know what they are missing. I’ve seen him in several Shakespeare productions and he’s always strong.

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