Claybrooks v. American Broadcasting Companies, Inc.
--- F.Supp.2d ----, 2012 WL 4890686
M.D.Tenn.,2012.
October 15, 2012
ALETA A. TRAUGER, District Judge.
*1
Pending
before the court are several motions relating to the plaintiffs'
Amended Complaint and choice of venue. The defendants have filed a
Motion to Dismiss Amended Complaint (Docket No. 38) and an Alternative
Motion to Strike Request for Injunctive Relief and Class Allegations
(Docket No. 45), to which the plaintiffs filed a consolidated Response
in opposition to both motions (Docket No. 84), and the defendants filed
separate Replies thereto (Docket Nos. 91 (Motion to Dismiss) and 93
(Motion to Strike)).FN1
The defendants have also filed a Motion to Transfer Venue (Docket No.
59), which is not yet fully briefed and with respect to which the
parties have engaged in venue-specific discovery. (
See Docket Nos. 86, 99, 100.) FN2
For
the reasons stated herein, the Motion to Dismiss will be granted, the
remaining motions will be denied as moot, and the plaintiffs' claims
will be dismissed with prejudice.
BACKGROUND
I. The Shows at Issue and the Plaintiffs' Associated Discrimination Claims
This case concerns the popular television shows
The Bachelor and
The Bachelorette (the “Shows”), which collectively have aired since 2002 on the “ABC” channel. Defendant American Broadcasting Companies, Inc. (“ABC”)
broadcasts these Shows, and the remaining defendants are companies and
an individual otherwise involved in producing the Shows (collectively,
“defendants”). The named plaintiffs, Nathaniel Claybrooks and
Christopher Johnson, are two African–American males who unsuccessfully
applied to be the “Bachelor” in 2011.
The Bachelor, which debuted in 2002 on ABC, is a popular “reality television” show in which approximately 25 women compete for the affections of a single man—the “Bachelor.” Each season of
The Bachelor features a different Bachelor and a different pool of female suitors. In 2003,
The Bachelorette debuted as a spin-off of
The Bachelor. The Shows are essentially identical, except that the gender roles are reversed—
i.e., in
The Bachelorette, a pool of male suitors competes for the affections of the “Bachelorette.” In total, there have been 16 seasons of
The Bachelor and 8 seasons of
The Bachelorette.
As a condition of participating on either Show, the Bachelor or Bachelorette signs a casting contract with the defendants. The Bachelor/Bachelorette
receives a stipend and enjoys various other benefits of participating
on either Show, including fully paid housing, food, and travel expenses,
as well the financial and professional benefits of celebrity status
after his or her participation ends.
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. ¶ 37 (brackets in
original).) Despite this “eclectic mix,” none of the Bachelors or Bachelorettes has been a person of color—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.
*2
The plaintiffs allege “[t]he shows' complete lack of people of color is no accident.” (
Id. ¶ 40.) They allege that, as a matter of internal policy, the defendants have intentionally cast only white Bachelors
and Bachelorettes. According to a news article, the shows' producers
have feared “potential controversy stemming from an interracial
romance,” (
id. ¶ 44), which they believe would alienate the Shows'
predominantly white viewership. The plaintiffs allege that, for this
reason, the defendants have intentionally refused to cast non-white Bachelors
and Bachelorettes, to avoid the possibility that a particular season
could end with an interracial couple. Thus, “[b]y hiring only white
applicants, Defendants are making the calculation that minorities in
lead roles and interracial dating is unappealing to the shows'
audiences. The refusal to hire minority applicants is a conscious
attempt to minimize the risk of alienating their majority-white
viewership and the advertisers targeting that viewership.” (
Id. ¶ 68.)
The plaintiffs allege that various television shows on other networks have, by contrast, “featured an abundant number of racial minorities.” (
Id. ¶ 71.) Although ABC
has also broadcasted shows involving minorities, those shows “involve
platonic, as opposed to romantic, relationships among the cast members.”
(
Id. ¶ 75.) According to the plaintiffs, “[t]his indicates that the presence of people of color in ABC
programming is acceptable so long as there is not exhibition of actual
romance between non-whites or whites and people of color.” (
Id. ¶ 75 .)
The plaintiffs allege 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.” (
Id. ¶ 76.) According to the plaintiffs, “[s]tudies have shown that television is extremely influential in shaping the way people view one another and themselves.” (
Id.) Accordingly, “[t]he 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.” (
Id. at ¶ 77.) From the plaintiffs' perspective, the defendants'
communication of this “message” has a deleterious effect on society:
With
such a massive viewership, Defendants have the opportunity to help
normalize minority and interracial relationships by showcasing them to
mainstream America on
The Bachelor and
The Bachelorette. Instead, by discriminatorily refusing to cast
people of color in the lead roles (as well as in the role of suitor),
Defendants play into the perceived racial fears of their audience and
perpetuate outdated racial taboos.
( Id. ¶ 78.)
The plaintiffs allege that they and other minority applicants have been denied the equal opportunity to contract to be the Bachelor or the Bachelorette, in violation of 42 U.S.C. § 1981, a statute that, among other things, prohibits discrimination in the formation of contracts.FN5
They seek to certify a class of plaintiffs consisting of all non-white
applicants who met the shows' baseline eligibility requirements. The
plaintiffs seek nominal damages, punitive damages, and two forms of
injunctive relief: (1) an injunction prohibiting the defendants from
engaging in the alleged discriminatory practices; and (2) an injunction
requiring the defendants to consider non-whites as finalists for the
role of the Bachelor and the Bachelorette.
II. The Casting Process
*3
To cast the roles of the Bachelor
and Bachelorette, the defendants solicit mail-in applications through
their website and conduct casting calls in various locations across the
country. Applicants must fill out a questionnaire and provide recent
photographs and/or video of themselves. Applicants selected as
semi-finalists are flown to Los Angeles for additional interviews and
must submit additional paperwork.
In
2011, plaintiff Johnson appeared for a casting call at a hotel in
Nashville, Tennessee. In the hotel lobby, a white employee of the
defendants stopped Johnson, took his materials, and promised to “pass
them on” to the casting directors. Johnson observed that the white
employee did not stop any of the white Bachelor
applicants who were entering the hotel for the casting call at the same
time. Johnson never heard back from the Defendants about his
application. In 2011, plaintiff Claybrooks appeared for a casting call
at a different hotel. In the lobby, all of the other applicants appeared
to be white. Although interview of these white applicants took about 45
minutes, Claybrooks's interview lasted only 20 minutes, making him feel
that he had been rushed through the interview process without being
given the same opportunity as the white applicants. Like Johnson,
Claybrooks never heard back from the defendants concerning his
application. The defendants ultimately selected a white Bachelor for its 2012 season.
III. The Defendants' Arguments
In
support of their Motion to Dismiss, the defendants argue that the case
should be dismissed with prejudice on either of two grounds: (1) the
First Amendment to the United States Constitution bars the plaintiffs'
claims; and/or (2) the “void-for-vagueness” doctrine bars the
plaintiffs' claims. The defendants also argue that, if the claims are
not barred on either of those grounds, the Amended Complaint should be
dismissed without prejudice because the plaintiffs have not pleaded
sufficient facts to establish a violation of § 1981.
In
support of their Alternative Motion to Strike, the defendants argue
that, if the court refuses to dismiss the case entirely, the court
should at least find that (1) the proposed injunctions constitute an
unconstitutional prior restraint and/or are impermissibly vague and
superfluous; and/or (2) the plaintiffs' class allegations have not been
pleaded with sufficient particularity.
***
II. First Amendment as an Affirmative Defense
The
plaintiffs suggest that, as a matter of law, it is premature for this
court to address the defendants' First Amendment defense at the pleading
stage. (
See Docket No. 84, Pltfs. Mem. at p. 5 (stating that the court
should refrain from ruling on the validity of the claims “until after
discovery and development of a full evidentiary record”).) However,
“where the undisputed facts conclusively establish an affirmative
defense as a matter of law,” a motion to dismiss may be granted.
Hensley Mfg. v. ProPride, Inc ., 579 F.3d 603, 613 (6th Cir.2009).
This principle applies to First Amendment defenses at the pleading
stage: when a plaintiff's allegations establish that the First Amendment
bars the plaintiff's claims as a matter of law, federal courts may
dismiss those claims.
See
Windsor v. The Tennessean, 719 F.2d 155, 162–63 (6th Cir.1983) (finding that dismissal of plaintiff's § 1985(1) claims against certain defendants was appropriate pursuant to Rule 12(b)(6), because,
inter alia, defendants had “agreed to engage in constitutionally protected speech”);
see also
Eagles Nest Ranch & Acad. v. Bloom Twp. Bd. of Trs., No. 2:06–CV–242, 2007 WL 650485, at *5 (S.D.Ohio Feb. 26, 2007);
Barr v. Clinton, 370 F.3d 1196, 1203 (D.C.Cir.2004);
Best v. Berard, 776 F.Supp.2d 752, 753 (N.D.Ill.2011);
Burnett v. Twentieth Century Fox Film Corp., 491 F.Supp.2d 962, 974 (C.D.Cal.2007).
Consistent
with this recognized approach, the court will analyze the plaintiffs'
allegations to determine whether they establish that the First Amendment
bars their claims as a matter of law.
ANALYSIS
I. Applicable Law
A. § 1981 and the First Amendment
This
case involves potential tension between two federal interests: the
federal statutory interest in preventing racial discrimination in the
formation of contracts, as embodied in 42 U.S.C § 1981, and the federal constitutional First Amendment right to freedom of speech.
Section 1981
provides that “[a]ll persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make
and enforce contracts ... and to full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by
white citizens....” 42 U.S.C. § 1981(a) (2012).FN6
Thus, the statute “prohibits intentional race discrimination in the
making and enforcing of contracts involving both public and private
actors.”
Amini v. Oberlin Coll., 440 F.3d 350, 358 (6th Cir.2006);
see also
Runyon v. McCrary, 427 U.S. 160, 173, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) (“ § 1981 ... reaches private conduct.”) Here, at least for purposes of the defendants' argument that the First Amendment trumps § 1981, the parties appear to agree that § 1981
applies to casting decisions for the Shows, because the casting
decisions involve the formation and execution of contracts to become the
Bachelor or Bachelorette.
*5
The
First Amendment to the United States Constitution provides, in relevant
part, that “[C]ongress shall make no law ... abridging the freedom of
speech....” The First Amendment shields protected speech and expression
from private litigation, as well as from statutory restrictions and
criminal penalties.
See
New York Times Co. v. Sullivan, 376 U.S. 254, 277–78, 84 S.Ct. 710, 725, 376 U.S. 254, 11 L.Ed.2d 686 (1964);
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 n. 51, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). The First Amendment protects a variety of artistic forms of expression, including entertainment, television programs, and dramatic works.
Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981).
Here, the parties agree that the Shows are expressive works that
constitute speech protected by the First Amendment. However, they
disagree as to whether the casting decisions behind those Shows are also
protected by the First Amendment.
As explained herein, the court finds that casting decisions are part and parcel of the creative process behind a television
program—including the Shows at issue here—thereby meriting First
Amendment protection against the application of anti-discrimination
statutes to that process. Thus, as applied here, § 1981
would force the defendants to employ race-neutral criteria in the
casting process, thereby regulating the creative content of the Shows.
Accordingly, as applied in this specific context, § 1981 regulates speech based on its content—
i.e., the race(s) of the Shows' respective cast members—which implicates strict scrutiny.
See
United States v. Playboy Entm't. Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000);
see also
Netherland v. City of Zachary, La., 626 F.Supp.2d 603, 607 (M.D.La.2009)
(applying strict scrutiny analysis, where application of city-ordinance
was content-based). Under that test, the plaintiffs must show that
applying § 1981
here would (1) advance a compelling government interest; and (2) is
narrowly tailored to serve that interest. The parties only dispute the
second element.
B. The Intersection of § 1981 and the First Amendment Generally
Although media organizations are subject to laws of general applicability, FN9
the Supreme Court has expressly found that the First Amendment can
trump the application of antidiscrimination laws to protected speech.
See
Hurley v. Irish–Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 568, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). In
Hurley, the Court considered “whether Massachusetts law could
require private citizens who organize a parade to include among the
marchers a group imparting a message the organizers do not wish to
convey.”
Id. at 559. There, the Irish American Gay, Lesbian, and Bisexual
Group of Boston (“GLIB”) sought to march in the annual Saint Patrick's
day parade in Boston, which was organized and conducted by the South
Boston Allied War Veterans Council (“Council”), an unincorporated
association of individuals from various South Boston veterans groups.
Id. at 560. In an effort to express solidarity on behalf of
Irish–American gays, lesbians, and bisexuals, GLIB sought to march in
the parade, but the Council refused to permit them to participate.
*6
At the time, a Massachusetts law of general applicability banned discrimination in public accommodations based on,
inter alia, sexual orientation.
Id. at 561. Accordingly, GLIB sued for the right to participate
in the parade, arguing that the Massachusetts public accommodations law
forbade the parade organizers from discriminating against GLIB, thereby
requiring the Council to accommodate it.
Id. The Massachusetts trial court—and, on appeal, the
Massachusetts Supreme Judicial Court—found that “it was impossible to
discern any specific expressive purpose entitling the Parade to
protection under the First Amendment.”
Id. at 564. Based on this finding, in relevant part, the
Massachusetts courts found that the Massachusetts anti-discrimination
statute trumped any incidental affect on the parade organizer's First
Amendment free speech rights.
Id.
On
appeal, the United States Supreme Court reversed. The Court found that
“parades are a form of expression” entitled to First Amendment
protection.
Id. at 568. The Court squarely rejected the view, adopted by the
state courts below, that the Council was required to show that the
parade had a particular expressive purpose to justify First Amendment
protection:
[A]
narrow, succinctly articulable message is not a condition of
constitutional protection, which if confined to expressions conveying a
“particularized message,”
cf.
Spence v. Washington, 418 U.S. 405, 411, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974) (
per curiam ), would never reach the unquestionably shielded
painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky
verse of Lewis Carroll.
Hurley, 515 U.S. at 569–70.
The
Court then analyzed whether Massachusetts law could compel the Council
to adjust the creative content of its parade. With respect to the
application of the public accommodations law, the Court observed that
this law “has been applied in a peculiar way” by the Massachusetts lower
courts.
Id. at 572. “Since every participating unit affects the message
conveyed by the private organizers, the state courts' application of the
statute produced an order
essentially requiring petitioners to alter the expressive content of their parade.”
Id. at 572–73 (emphasis added). Thus, as here, the plaintiff
sought to apply an anti-discrimination statute in a manner that
threatened to alter the content of the defendant's expressive work,
triggering an exacting analysis by the Court.
The
Court observed that “a speaker has the autonomy to choose the content
of his own message,” and that, “ ‘[s]ince all speech inherently involves
choices of what to say and what to leave unsaid, one important
manifestation of the principle of free speech is that one who chooses to
speak may also decide what not to say.”
Id. (quoting
Pacific Gas & Elec. Co. v. Public Util. Comm′ n., 475 U.S. 1, 11, 16, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986)).
Accordingly, the Court found that the parade organizers had a First Amendment right to control the content of their own parade:
*7
Rather
like a composer, the Council selects the expressive units of the parade
from potential participants, and though the score may not produce a
particularized message, each contingent's expression in the Council's
eyes comports with what merits celebration on that day.... [A]
contingent marching behind the organization's banner would at least bear
witness to the fact that some Irish are gay, lesbian, or bisexual, and
the presence of the organized marchers would suggest their view that
people of their sexual orientations have as much claim to unqualified
social acceptance as heterosexuals and indeed as members of parade units
organized around other identifying characteristics. The parade's
organizers may not believe these facts about Irish sexuality to be so,
or they may object to unqualified social acceptance of gays and lesbians
or have some other reason for wishing to keep GLIB's message out of the
parade.
But whatever the reason, it boils down to
the choice of a speaker not to propound a particular point of view,
and that choice is presumed to lie beyond the government's power to
control.
Id. at 574–75 (emphases added). Based on these findings, the Court held that the First Amendment trumped the Massachusetts anti-discrimination statute:
The
very idea that a noncommercial speech restriction be used to produce
thoughts and statements acceptable to some groups or, indeed, all
people, grates on the First Amendment, for it amounts to nothing less
than a proposal to limit speech in the service of orthodox expression.
While the law is free to promote all sorts of conduct in place of
harmful behavior, it is not free to interfere with speech for no better
reason than promoting an approved message or discouraging a disfavored
one, however enlightened either purpose may strike the government.
Id. at 579 (internal citations omitted).
The factual circumstances in
Hurley are not precisely analogous to those presented in this
case—the plaintiffs here are not an advocacy group, for example.
Nevertheless, the Court in
Hurley articulated a general principle that governs the court's
analysis in this case: under appropriate circumstances,
anti-discrimination statutes of general applicability must yield to the
First Amendment.
See also
Hosanna–Tabor Evangelical Lutheran Church & Sch. v. E.E.O. C., 132 S.Ct. 694, 181 L.Ed.2d 650 (2012)
(holding that First Amendment Establishment and Free Exercise Clauses
barred application of employment discrimination statutes to religious
institution's selection of its own ministers). As the plaintiffs
concede, this principle applies equally to § 1981 discrimination claims. (
See Pltfs. Mem. at p. 11, n. 1.) The plaintiffs also concede that
this principle applies to casting decisions for at least some types of television programs, but not all. (
Id.)
C. Absence of Precedent Applying First Amendment to Casting Decisions
Although the parties agree that the First Amendment protects the creative content of
The Bachelor and
The Bachelorette, they vigorously disagree as to whether the
First Amendment protects the casting decisions for those programs. With
respect to casting decisions for an entertainment program of any kind,
it appears that no federal court has addressed the relationship between
anti-discrimination laws and the First Amendment. Thus, although the
parties fault each other for failing to identify any federal case law
specifically addressing this issue,FN12
the court does not interpret the absence of precedent on this issue as
suggesting any particular result here. Accordingly, the court must
analyze this issue of first impression in light of relevant First
Amendment principles.
II. Application of First Amendment Principles to Casting Decisions
A. The Court Must Assume that the Defendants in Fact Discriminated in Casting The Bachelor and The Bachelorette.
*8
In an
introductory paragraph in their Memorandum in support of their Motion to
Dismiss, the defendants argue that, contrary to the Amended Complaint
allegations, they “share the Plaintiffs' goals of reducing racial bias
and prejudice and fostering diversity, tolerance and inclusion,” and
“have never discriminated based on race in connection with the casting
process” for the Shows. (Docket No. 42, Defs. Mem., at p. 1.)
Notwithstanding these representations, the defendants argue that the
plaintiffs, by suing the defendants under § 1981,
essentially seek to coopt the Shows to showcase the plaintiffs' own
preferred message of racial acceptance. In response, the plaintiffs
argue that, based on the defendants' representations in their briefing
that race is not a factor in casting the Shows, applying § 1981 necessarily would not actually alter the Shows' expressive content.
Regardless of whether applying § 1981 would
in fact alter the Shows' content, the court must analyze whether
the well-pleaded factual allegations in the Amended Complaint—not the
defendants' briefing representations about the real world accuracy of
those representations—establishes a First Amendment defense. Thus, the
court must assume, as alleged in the Amended Complaint, that the
defendants
did discriminate on the basis of race, that they did so to
conform the content of their Shows to cater to the viewpoint of their
target audience concerning interracial relationships, that the Shows'
content thereby perpetuates racial stereotypes about interracial
relationships, and that the plaintiffs seek to alter/correct the
defendants' casting decision process to address that issue.
B. Whether Casting Decisions are a Form of Conduct Devoid of Sufficient Creative Expression.
Supreme
Court precedent establishes that conduct constitutes protected speech
if it is “sufficiently imbued with elements of communication to fall
within [the First Amendment's] scope.”
Spence, 418 U.S. at 409–10.FN14 On the other hand, at some point, conduct ceases to be materially communicative for First Amendment purposes.
See
Dallas, 490 U.S. at 25. Indeed, “it is possible to find some
kernel of expression in almost every activity a person undertakes—for
example, walking down the street or meeting one's friends at a shopping
mall—but such a kernel is not sufficient to bring the activity within
the protection of the First Amendment.”
Id.
The
plaintiffs' position concerning whether casting decisions are protected
by the First Amendment appears to be internally inconsistent in at
least one respect. Although the plaintiffs appear to argue that casting
decisions always involve conduct—the formation of a contract—that is not
materially communicative (
see Pltfs. Mem. at pp. 7–9), they also concede that casting
decisions that “would undoubtedly affect [a] shows' content” are
entitled to First Amendment protection (
id. at p. 11, n. 1). Thus, the court construes the plaintiffs as arguing that § 1981 applies to casting decisions
in some contexts, but not others, apparently based on a court's assessment of whether enforcing § 1981 would actually affect the particular show's message.
*9
The
defendants convincingly argue that applying anti-discrimination laws to
casting decisions in this manner would threaten the content of various television programs and television
networks. For example, the legality of any network targeting particular
demographic groups would be called into question, including,
inter alia, the Lifetime Network (targeted to female audiences),
the Black Entertainment Channel (targeted to African–Americans),
Telemundo (targeted to Latinos), the Jewish Channel, the Christian
Broadcast Channel, the Inspiration Network (targeted to Protestants),
and LOGO (targeted to gays and lesbians). (
See Defs. Mem. at p. 11.) Similarly, the content of any television show that does not have a sufficiently diverse cast would be or would have been subject to court scrutiny, such as
The Jersey Shore (all white cast members),
The Shahs of Beverly Hills (a show about Persian–Americans living in Los Angeles),
The Cosby Show (a show with an African–American cast), and
The Steve Harvey Show (a show with an African–American lead actor and supporting cast). (
See Defs. Mem. at p. 12.) 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?
In response, the plaintiffs argue that the court should treat
The Bachelor and
The Bachelorette differently from “
identity-themed programming that would be incidentally affected
by compliance with anti-discrimination laws,” such as networks that are
“specifically geared” toward particular demographic groups, like LOGO,
BET, Telemundo, and The Jewish Channel, or shows that are “about”
African–Americans, like
The Cosby Show. (Pltfs. Resp. at p. 11 n. 1 (emphasis added).)
The plaintiffs cite to no legal authority for this purported distinction
between “identity-themed programming” and other forms of television programming.
The
plaintiffs' proposed test is inherently unwieldy, threatens to chill
otherwise protected speech, and, if implemented, would embroil courts in
questioning the creative process behind any television program or other dramatic work. 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,
see 515 U.S. at 569–70, and, of course, expressive works can mean different things to different people.
*10
Moreover,
as the 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.
At
any rate, the plaintiffs' argument essentially ignores a key thrust of
their own Amended Complaint, which 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.
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.
See
Hurley, 515 U.S. at 573 (“A speaker has the autonomy to choose the content of his own message.”);
see also
McDermott v. Ampersand Publ'g., LLC, 593 F.3d 950, 962 (9th Cir.2010)
(approving district court's refusal to grant injunction reinstating
newspaper's discharged editorial staff members and reporters, because,
“telling the newspaper that it must hire specified ... editors and
reporters ... is bound to affect what gets published.
To the extent the publisher's choice of writers affects the expressive content
of its newspaper, the First Amendment protects that choice.”) (emphasis
added). Similarly, “rather like a composer,” the defendants are
entitled to select the elements (here, cast members) that support
whatever expressive message the Shows convey or are intended to convey.
See
Hurley, 515 U.S. at 574. Thus, whether enforcing § 1981 here would frustrate, enhance, or be entirely consistent with the message that
The Bachelor and
The Bachelorette conveys, the First Amendment protects the producers' right unilaterally to control their own creative content.
*11
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.
III. Disposition of the Various Pending Motions
For
the reasons stated herein, the court has found that the First Amendment
bars the plaintiffs' claims. Accordingly, the court need not reach the
defendants' additional arguments that (1) § 1981
is void for vagueness as applied here, and/or (2) the plaintiffs have
failed to plead their claims with adequate particularity. Similarly, the
plaintiffs' Alternative Motion to Strike, the Motion to Transfer Venue,
and the Request for Judicial Notice relative to the Motion to Transfer
Venue are now rendered moot.
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