Casting Decisions Are Entitled to First Amendment Protections

A federal district court in Tennessee has determined that cast decisions are protected by the First Amendment against claims of racial discrimination under Sec. 1981. This was a case of first impression.

Reality television is so popular with both audiences and participants that prospective contestants are suing to get on TV. Recently, two such men filed a lawsuit in the U.S. District Court for the Middle District of Tennessee, Nashville Division, in what may have been a bit of strategic forum shopping. Both the U.S. Supreme Court and California courts have ruled that applying such anti-discrimination laws to works of creative expression such as television shows can violate the First Amendment. The men, both African-Americans claimed their consitutionally-protected rights under the federal § 1981 statute and Cal. Civ. §§ 51, 51.5. The men had unsuccessfully applied to be cast as The Bachelor in the ABC television program of the same name.

The novel complaint was filed as a class action on April 18, 2012, against ABC. Plaintiffs made their claims on behalf of the class of all people of color who had unsuccessfully applied to star as either The Bachelor or The Bachelorette. The plaintiffs, represented by private counsel, asked the court for declaratory, injunctive, and monetary relief, alleging that they were the victims of ABC’s racial discrimination. Specifically, the plaintiffs claimed that ABC has intentionally and as a matter of corporate policy refused to cast people of color in the role of the Bachelor and Bachelorette for all 23 seasons of the two programs.

The court dismissed the case on First Amendment grounds. Allowing the case to proceed would have the effect of regulating the content of speech, with the government effectively telling people what they can and cannot depict on TV or speak about in public.