‘The Bachelor’ Racial Discrimination Suit Barred by First Amendment?
Recently, a class action lawsuit was filed against the producers and broadcasters of the popular reality television programs “The Bachelor” and “The Bachelorette,” claiming that the show discriminates against people of color in its casting decisions. (Entertainment Weekly’s report on the lawsuit here; complaint and further reporting on the suit from the Hollywood Reporter here.) The suit, Claybrooks v. ABC, et al., is apparently a bit innovative — as Entertainment Weekly reports in their article, experts in this area like Jeffrey S. Kravitz of Fox Rothschild LLP have never seen a lawsuit like this claiming discrimination by a TV show. But is the suit barred by the free speech protections of the First Amendment?
On the one hand, the facts of the case (as alleged in the complaint) certainly create the appearance of discrimination. No Bachelor or Bachelorette has ever been anything but white, every winner of the show has been white, and casting of non-white contestants has been minimal over the 23 seasons the show has been on the air. If discovery showed that this was a result of purposeful decisions by the producers of the show, the plaintiffs may be able to establish illegal discrimination under California’s Unruh Civil Rights Act, or the venerable federal section 1981 statute.
However, both the U.S. Supreme Court and California courts have ruled that applying such anti-discrimination laws to First Amendment-protected expressive works (including TV shows) can violate the Constitutional right to free speech. Such laws can have the effect of regulating the content of speech, with the government effectively telling people what they can and cannot portray on TV or speak about in the public sphere. Laws that regulate the content of speech are therefore subject to a very high level of scrutiny in the courts, and many have been ruled unconstitutional. (See the U.S. Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995); and the California Second Appellate District’s decision in Ingels v. Westwood One Broadcasting Services, Inc. (2005).) I think we can all agree (I hope) that eliminating discrimination is a vital public policy goal, but can it come at the price of free speech?
This may be the question before the court in Claybrooks v. ABC. When brought in California or another jurisdiction with an anti-SLAPP law, lawsuits that are found to arise from constitutionally protected First Amendment activity often do not get very far. However, in what may perhaps be a case of creative forum-shopping, this suit was brought in the federal U.S. District Court of the Middle District of Tennessee — despite the defendants and lead counsel for the plaintiffs both being based in Los Angeles. Tennessee has no anti-SLAPP law, nor has a federal anti-SLAPP law yet been passed. I doubt avoiding the dangers of an anti-SLAPP motion did not at least play some role in class action counsel’s decision to bring suit in Tennessee (of all places).
My guess is this suit will eventually be dismissed on First Amendment grounds. However, lead counsel for the plaintiffs, Cyrus Mehri, certainly has the chops to bring such a suit to a successful conclusion (see his interview with NPR here), and must believe he has a strong argument in response. It will be interesting to see how this plays out.