Legal Analysis and Commentary from Justia

Bachelors of Color Need Not Apply? Why a Federal Court Was Right to Hold That ABC Has a First Amendment Right to Choose Its Bachelor Contestants, but the Network Should Voluntarily Change Its Practices

In the 24 episodes of each of the ABC TV reality shows The Bachelor and The Bachelorette, there has never been a single lead contestant of color.  As it turns out, this may be due to a deliberate bias on the part of the producers.

Two African-American Nashville residents and would-be “Bachelors,” Nathaniel Claybrooks and Christopher Johnson, challenged this practice in a federal anti-discrimination class action lawsuit.  But last week, the judge dismissed their suit, stating that the First Amendment protected the show’s casting decisions. Yet the show ought to reconsider its casting practices nonetheless, not because the law demands it, but because it is the right thing to do.

The Lawsuit Alleging Discrimination in Casting of The Bachelor

Claybrooks and Johnson, two college football players with NFL aspirations, both applied to be cast as the lead hunk in the 2011 season of The Bachelor.  Both were turned down.  As a result, they missed out not only on the chance to have 25 women vie for their affections, but also on the chance to receive a living stipend, free food and housing, and travel expenses.  They also missed out on the chance to reap the other opportunities that being a lead or a finalist on these shows often leads to: other TV opportunities, and the possibility of future celebrity status and sponsorships.

The Bachelor boasts of its “eclectic mix of bachelors,” which has included “a doctor, football star, prince, millionaire, [and a] single dad.” But, as noted above, that mix has never produced a “Bachelor” of color from any walk of life.  As noted above, the same is true for The Bachelorette, its sister show, which has never had a bachelorette of color in any of its eight seasons:  Both shows are 0-for-24 in terms of leading men and ladies of color.

The overwhelming majority of the women and men competing for the Bachelor’s and Bachelorette’s affections have also been white, although there have been a few Latino/a, African-American, and Asian-American suitors.

Claybrooks and Johnson Claim That The Bachelor’s Casting Agents Treated Them Differently Due to Their Race

Claybrooks and Johnson allege that when they applied to be on the show, they were never seriously considered. Claybrooks said that when he went to an open casting call in Nashville, all the other applicants appeared to be white, and their interviews lasted about 45 minutes whereas his lasted a mere 20.  Johnson, in turn, said that when he arrived at his casting call, a white employee of the show took his materials at the door and promised to “pass them on” to the casting directors. By contrast, he claims that white applicants were allowed in and interviewed.

According to news reports, both shows’ producers can deny final casting thumbs-ups or thumbs-downs to whomever they’d like, based on whatever criteria they deem appropriate.

Based on their own experiences, Claybrooks and Johnson have accused the show’s producers of intentionally avoiding casting black participants in order to avoid depicting interracial dating on the air—a subject that might alienate some of the show’s predominantly white audience.  The Bachelor and The Bachelorette are, they argued, “examples of purposeful segregation in the media that perpetuates racial stereotypes and denies persons of color opportunities in the entertainment industry.”

Claybrooks and Johnson charged that the show violated their rights under Section 1981 of the federal Civil Rights Act, which prohibits both public and private entities from discriminating on the basis of race in the formation of contracts.  As their remedy, they asked that The Bachelor stop discriminating and begin to consider non-whites as finalists for the roles of The Bachelor and The Bachelorette.

Notably, Claybrooks and Johnson did not focus on the creative decisions that are made on The Bachelor once a cast has already been selected—and when the First Amendment might apply.  Instead, they alleged that the casting decisions were discriminatory.  And they contended that, as in any other job, so too for the job of occupying the lead contestant role on The Bachelor, racial discrimination is illegal.  In response, the production company for The Bachelor points to its casting of people of color in non-lead roles, and states that it continues actively to seek out participants of color for both shows

ABC has strenuously insisted that there is no deliberate discrimination at work here, and that, in any case, their right to cast whoever they choose is protected by the First Amendment because of the expressive, creative nature of The Bachelor and The Bachelorette.

The Court Throws Out Claybrooks’s and Johnson’s Lawsuit

Just last week, Judge Aleta Traeger dismissed the lawsuit.  The court called Claybrooks’s and Johnson’s goals in filing their suit “laudable,” as they “seek to support the social acceptance of interracial relationships, eradicate outdated racial taboos, and encourage television networks not to perpetuate outdated racial stereotypes.”

But in the end, the judge ruled that the First Amendment, which protects freedom of expression, trumped their allegations of racial discrimination.  Even if the producers or ABC were indeed discriminating in choosing only white stars, the court held, they had a First Amendment right to do so, as part of their creative casting decisions.  The court thus noted that “the First Amendment prevents the plaintiffs from effectuating these goals by forcing the defendants to employ race-neutral criteria.”

The Content of a Reality Show Is Clearly First-Amendment-Protected, but Is Its Casting?

Everyone agrees that the content of TV shows—whether they are reality shows or not—is protected by the First Amendment.  However, Claybrooks and Johnson argued that with most shows, casting the show is not First-Amendment-protected.  Instead, they likened casting to deciding with whom you’ll form any other kind of business contract, and they contended that federal antidiscrimination laws therefore apply.

Claybrooks and Johnson admitted that there are certainly shows where casting is part of the creative process, but they argued that reality-dating shows are not among them.  Whether you hire black or white people to date each other on reality television, they argued, is not a creative, but purely a contractual, decision.

The court considered this case as raising an issue of first impression. No other court, it noted, had previously consider whether the First Amendment protects casting decisions.

In the end, the court sided with the defendants, who argued that “[C]asting decisions are a necessary component of any entertainment show’s creative content . . . .”  The court also remarked that “The plaintiffs seek to drive an artificial wedge between casting decisions and the end product [of the show itself], which itself is indisputably protected as speech by the First Amendment. “In support of its decision, the court invoked a 1995 Supreme Court case, Irish-American Gay, Lesbian, and Bisexual Group of Boston v. City of Boston.

There, the U.S. Supreme Court held that the organizers of a Boston Saint Patrick’s Day parade could exclude an Irish-American gay, lesbian, and bisexual group, even though Massachusetts had a state law prohibiting discrimination on the basis of sexual orientation.

In explaining its decision, the Supreme Court said that “the speaker has the autonomy to choose the content of his own message”—a principle that the court in the Bachelor case held applies to the producers of The Bachelor, as well. The bottom line: Organizers or casting directors have the right to exclude people from their productions, be they parades or TV shows.

The court in the case concerning The Bachelor noted, as well, that there are many programs aimed at minority communities or specific groups that cast actors of a specific ethnicity or racial group—and asked if we would want to interfere with those decisions.  Would we object to an all-female Romeo and Juliet, because men were excluded? Would we object if a director chose to cast Othello only as a person of color, without considering actors of other races?  Would we want Bill Cosby to have white children as part of his television family?

Going beyond the casting context, moreover, the court asked whether we would be willing to examine and question hiring decisions that we might find appropriate or even socially useful. “For example,” the judge wrote, “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 InspirationNetwork (targeted to Protestants), and LOGO (targeted to gays and lesbians).”

Claybrooks and Johnson argued that the way to deal with this issue is to make an exception for so-called “identity-themed” programs—that is, those that are aimed at a particular racial, religious or gender group.  To qualify, such groups would have to be specifically geared toward, or about, a particular racial, religious, or gender group for the demographics of their cast to be construed as part of their content.

But the court noted there was no legal precedent for making this kind of carve-out, and asked how one might define what the creative content of a program is.

Why the Court’s Decision Was the Right One, but Still Leaves Unanswered Questions

The court made the right decision, for the rules that Claybrooks and Johnson sought went too far, and violated the First Amendment.  Their approach would open up discrimination inquiries into all-white casts; all-minority casts; and single-sex casts.  In each case, First Amendment issues would arise due to the fine line between artistic license and discrimination.

Even if there is no legal remedy for the selection of only white leads on The Bachelor and The Bachelorette, protests and boycotts are still possible.  Moreover, it’s important to remember that this is a special circumstance involving a creative job.  There is no First Amendment protection when one is hiring people for the vast majority of jobs that Americans occupy.

The court’s ruling in the case regarding The Bachelor may have been correct, as the show has creative elements, including the selection of its cast.  Moreover, TV shows and plays are clearly creative works—with casting being an important part of the creative process.

Other jobs with an element of creativity may also have some creative element.  May Disney only hire white women to portray Snow White or other princesses? May department stores hire only white Santas?

“Ultimately,” the judge in the case regarding The Bachelor wrote, “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.”

If the Court is Right That the First Amendment Protects Casting, What Can Viewers and Would-Be Contestants Do?

The court’s holding may make some people feel uncomfortable, as it means that ABC can choose only white contestants, and leave people of color sitting on the bench.

Giving the casting process, due to its creativity, a pass on complying with anti-discrimination laws may have some ugly consequences.  More specifically, it means that reality shows have every right to say no to anyone they feel is wrong for the show—too old, too heavy, too boring, too sane, or just the wrong fit. Top models can be required to be skinny, singers on American Idol can be required to be glamorous, and dancers on Dancing with the Stars can be required to be light-footed.  This is all legitimate, as part of each show’s creative license.

The message that 24 episodes of The Bachelor and The Bachelorette  (with only white leads) conveys is that there is no minority contestant who has the qualities and features that would make him or her a desirable romantic lead for reality TV.  It is this larger underlying message or effect that underscores the impact of both shows’ casting decisions.  This is how many women must have felt, when being excluded from competing in a Miss America or other beauty pageant.

The lawsuit, despite being a losing one, may still have an impact on casting decisions.

Claybrooks and Johnson may be wrong on the law, but right on the facts:  The contestants on The Bachelor and The Bachelorette are much whiter than our country as a whole. The shows themselves may be vapid, but they still shape our opinions and conceptions of reality.

When Star Trek aired, with one of television’s first interracial casts, it, in some way, helped break down racial taboos.  Situation comedies like Will and Grace and Modern Family are surely changing our perceptions of how different people interact today.

Even if the First Amendment protects producers’ right to cast whomever they like, without any concern for diversity, that doesn’t mean that it’s the right thing to do. The lawsuit put an uncomfortable spotlight on The Bachelor’s casting practices—and as NPR has reported, the controversy may well have had an effect.  It appears that after seasons in which there have been few, if any, minority contestants, the next season’s cast of The Bachelor will include African-American women.

In sum, with the First Amendment ruling out legal action against The Bachelor, protest is still a possibility. Viewer complaints and negative publicity can have an impact on a show’s revenue stream and bottom line, and may influence the TV show’s producers to cast a more diverse group of lead and supporting contestants for The Bachelor, The Bachelorette, and other TV shows. And of course, while these two shows themselves are protected by copyright and trademark laws, there is nothing to stop other producers and directors from creating alternative romantic reality shows that draw from all races and ethnicities, in both lead and supporting roles.

Anita RamasastryAnita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Development. She is also a member of the Law, Technology and Arts Group at at the Law School. Ramasastry writes on law and technology, consumer and commercial law, and international law and globalization.
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