So holds Claybrooks v. ABC (M.D. Tenn. Oct. 15, 2012), and I think that’s the right result. Federal antidiscrimination law specifically provides that sex can be a “bona fide occupational qualification,” and the use of sex in casting has long been seen as a classic example of that; but race is omitted from the list of categories that can be bona fide occupational qualifications, so race-based casting does seem to violate the statute. But the First Amendment protects such practices nonetheless. (Note that ABC insisted that it wasn’t engaging in race-based casting, but the court concluded that it would be protected by the First Amendment even if it had been casting based on race — that’s the way these decisions are generally made on a motion to dismiss: The court assumes that the plaintiff’s factual allegations are true for purposes of the decision, and asks whether the defendant would win as a matter of law nonetheless.)
As the court noted, a playwright must have the right to insist that, for instance, Othello be played by a black actor, and Macbeth by a white (or, I would add, to deliberately do the opposite). To be sure, the playwright could choose to cast without regard to race, but that is the playwright’s — or the producer’s or director’s — choice, and not something that the government may mandate. And while The Bachelor and The Bachelorette aren’t Shakespeare, the First Amendment protects low art as much as high art.
Nor does the First Amendment allow courts to decide which casting decisions are important to a show and which aren’t:
How would a court determine the point at which a television program, movie, or play is sufficiently “identity-themed”, “specifically geared” to, or “about” a particular racial, religious, or gender group to construe the demographics of its cast as to constitute the show’s “content”? How would one even define what the creative “content” of a program is? These are intractable issues that, in light of the First Amendment, are plainly beyond the appropriate scope of a court to address. Indeed, as the Court pointed out in Hurley, an expressive work need not have any particularized message to justify First Amendment protection, and, of course, expressive works can mean different things to different people.
It didn’t help the plaintiffs that they themselves complained about the message that the shows sent (though I don’t think the result should have been different even if plaintiffs had omitted that argument):
[Plaintiffs' complaint] explicitly takes issue with and seeks to alter the messaging of The Bachelor and The Bachelorette. The Amended Complaint allegations build to the plaintiffs’ fundamental disagreement with the expressive content of the Shows: they fault the Shows for “perpetuat[ing] racial stereotypes,” because “television is extremely influential in shaping the way people view one another and themselves.” (emphasis added.) They specifically allege that “the exclusion of people of color from The Bachelor and The Bachelorette sends the message -– to whites and racial minorities — that only all-white relationships are desirable and worthy of national attention” (emphasis added); and they even allege that, instead of seeking “to help normalize minority and interracial relationships by showcasing them to mainstream America,” the defendants’ casting decisions “play into the perceived racial fears of their audience and perpetuate racial taboos.” Indeed, the plaintiffs contrast The Bachelor and The Bachelorette with other television shows that they believe are appropriately inclusive of racial minorities.
Thus, taking the allegations as true, the plaintiffs have plainly alleged that (1) the racial composition of the Shows conveys an influential message to the viewing public regarding interracial romantic relationships; (2) the defendants consciously made casting decisions to control a message that the Shows convey; (3) the plaintiffs strongly disagree with that message, which they believe is “outdated”, “perpetuates racial stereotypes,” and caters (or at least is designed to cater) to the allegedly misguided prejudices of the Shows’ audience members; and (4) the plaintiffs seek to alter that message to “showcase” their own more progressive message through the application of § 1981. Accordingly, even as alleged by the plaintiffs, the Shows’ casting decisions are part and parcel of the Shows’ creative content, which the plaintiffs seek to reform. That is plainly an attempt to regulate the content of the Shows, which the First Amendment forbids.
I think the court erred in concluding that the antidiscrimination laws that plaintiffs relied on is content-based (i.e., “regulates speech based on its content”) under standard First Amendment principles. Though the law does have the effect of influencing the content of the shows, its application does not turn on the content of speech, and thus likely wouldn’t be seen as content-based under any of the four tests that the Court has at times articulated for determining which restrictions are content-based.
But I think the court was right in concluding that the law can’t constitutionally be applied here even if it’s content-neutral; content-neutral restrictions evade strict scrutiny (which is almost always fatal) only when they leave open “ample alternative channels” for the speaker to convey the speech. And the proposed application of antidiscrimination law here would not leave the speaker free to convey television programs with participants of a particular race, but would instead require the speaker to convey programs with a different content. In this respect, the court’s concern that the plaintiff’s theory would necessarily affect the content of the programs is correct.
Note also that since the plaintiffs didn’t seek to be employees, they brought suit not under normal employment discrimination law but under 42 U.S.C. § 1981, a federal statute that has been interpreted as barring race discrimination in contracting more generally. But the same analysis would apply under federal and state employment discrimination law. For a somewhat different view of the First Amendment question, see my former colleague Russell Robinson’s Casting and Caste-Ing: Reconciling Artistic Freedom and Antidiscrimination Norms.