Somewhere between outrage, bewilderment and comedy falls the news that a U.K. production company has cast very very very white actor, Joseph Fiennes as Michael Jackson in Elizabeth, Michael and Marlon, a short film about a rumored post-9/11 road trip involving Liz Taylor, Michael Jackson and Marlon Brando.

There has been much criticism of this particular casting decision, especially against the backdrop of the #OscarsSoWhite campaign.  But what about any black actors who believe the casting of a white actor is discriminatory?  Turns out they probably don’t have a case.

A few years ago, black applicants for ABC’s The Bachelor sued the network and the show for race discrimination.  They alleged the show overwhelmingly preferred white contestants over blacks.  A federal district court dismissed their action and made some interesting points.  The court pointed out that plaintiff’s theory would call into question how certain networks target and audience (Ovation, Telemundo, BET), as well as the demographic makeup of the casts of various shows (The Shahs of Beverly HillsThe Cosby Show).  Money quote:

“To the extent that these networks and programs discriminated and discriminate in their casting choices, would they not be subject to civil liability under prevailing state and/or federal antidiscrimination statutes, but for the First Amendment? There are other examples: Would applying anti-discrimination laws require a playwright to consider white actors to play Othello, black actors to play Macbeth, or a male to play Lady Macbeth? For that matter, could a dramatist face civil liability for staging an all-female version of Romeo & Juliet?”

Fair points.  The only thing keeping 2 Broke Girls from becoming The Golden Girls is freedom from the ADEA.