USDC M.D. Tennessee, October 15, 2012

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  • District court dismisses putative class action alleging racial discrimination in casting of shows The Bachelor and The Bachelorette, holding that First Amendment protects defendants’ casting decisions.

Plaintiffs, two African-American men who unsuccessfully auditioned for the lead role in the popular reality television show The Bachelor, brought a putative class action against broadcasters and producers of The Bachelor and its spin-off The Bachelorette (the Shows). Plaintiffs alleged that they and other minorities were deprived of the equal opportunity to contract to fill the lead roles because of defendants’ allegedly discriminatory casting decisions.

Plaintiffs alleged that the fact that none of the Bachelors or Bachelorettes has been a person of color is no accident, but rather that, as a matter of internal policy, defendants have intentionally cast only white Bachelors and Bachelorettes. Plaintiffs cited a news article stating that the Shows’ producers have feared “potential controversy of an interracial romance,” believing that this would alienate the Shows’ predominantly white viewership. Plaintiffs further alleged that The Bachelor and The Bachelorette “are examples of purposeful segregation in the media that perpetuates racial stereotypes and denies persons of color of opportunities in the entertainment industry[,]” and “sends the message . . . that only all-white relationships are desirable and worthy of national attention,” which message has a deleterious effect on society. Based on these allegations, plaintiffs claimed that defendants’ alleged discriminatory casting decisions violated 42 U.S.C. § 1981 (which prohibits, among other things, discrimination in the formation of contracts), and sought to certify a class of plaintiffs consisting of all non-white applicants who met the Shows’ baseline eligibility requirements. Defendants moved to dismiss the complaint with prejudice, arguing that the First Amendment protected both the Shows and defendants’ casting decisions related to the Shows, and therefore barred Plaintiffs’ claims.

At the outset, the court rejected Plaintiffs’ argument that addressing the defendants’ First Amendment defense at the pleading stage was premature, reasoning that where plaintiffs’ own allegations establish that the First Amendment bars the plaintiffs’ claims as a matter of law, federal courts may dismiss those claims. Framing the issue as a conflict between § 1981, which prohibits intentional race discrimination in the making and enforcing of contracts (and, for the purposes of the motion to dismiss, the casting contract to appear as the lead role in either of the shows), and the First Amendment, which protects artistic forms of expression, including entertainment, television programs, and dramatic works, the court reasoned that, as applied to the facts of the case, § 1981 would regulate the creative content of the Shows by forcing the defendants to employ race-neutral criteria in the casting process. Noting that an attempt to regulate speech based on its content — in this case, the race of the cast members — required a strict scrutiny test, the court concluded that the First Amendment trumped the application of § 1981, because the casting decisions were “part and parcel of the creative process” behind the television programs.

The court rejected Plaintiffs’ argument that casting decisions do not necessarily involve conduct that is materially communicative, and thus protected by the First Amendment, holding:

As defendants persuasively argue, casting decisions are a necessary component of any entertainment show’s creative content. The producers of a television program, a movie, or a play could not effectuate their creative vision, as embodied in the end product marketed to the public, without signing cast members. The plaintiffs seek to drive an artificial wedge between casting decisions and the end product, which itself is indisputably protected as speech by the First Amendment. Thus, regulating the casting process necessarily regulates the end product. In this respect, casting and the resulting work of entertainment are inseparable and must both be protected to ensure that the producers’ freedom of speech is not abridged.”

In reaching this conclusion at the pleading stage, the court assumed, as alleged in the Amended Complaint, that the defendants did discriminate in the casting process on the basis of race, that they did so to conform the content of their shows to the viewpoint of their target audience concerning interracial relationships, that Shows’ content did perpetuate racial stereotypes about interracial relationships, and that the plaintiffs sought to change the defendants’ casting process to address that issue. Taking the allegations in the complaint as true, the court reasoned that the plaintiffs were arguing that the racial composition of the Shows conveys an influential message to the viewing public regarding interracial romantic relationships and that defendants consciously made casting decisions to control the message, a message with which the plaintiffs strongly disagreed and sought to change in order to “showcase” their own more progressive message through the application of § 1981. This, according to the court, amounted to an attempt to regulate the Shows’ creative content, which the First Amendment forbids. The court concluded: “Ultimately, whatever messages The Bachelor and The Bachelorette communicate or are intended to communicate — whether explicitly, implicitly, intentionally, or otherwise — the First Amendment protects the right of the producers of these Shows to craft and control those messages, based on whatever considerations the producers wish to take into account.”