Bachelor’s racist casting is free speech, judge rules

A lawsuit challenging The Bachelor‘s casting discriminated on the basis of race has been dismissed, with a judge agreeing with arguments from producers ABC and Warner Horizon that their casting is protected free speech. The judge noted that regarding “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.”

Here’s the judge’s full response [PDF], via Deadline. Interestingly, the judge acknowledged that “across 24 combined seasons, all of the Bachelors and Bachelorettes have been white” and said “the few non-white contestants tend to be eliminated early on in each show.” And considering one argument, he wrote,

“The court must assume … 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.”

But the judge dismissed the lawsuit, writing, in part,

“…as the defendant persuasively argue, casting decisions are a necessary component of any entertainment show’s creative content. … 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. …

… 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. …

… 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goals here are laudable: they seek to support the social acceptance of interracial relationships, to eradicate outdated racial taboos, and to encourage television networks not to perpetuate outdated racial stereotypes.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.”

Elsewhere, the judge noted that

“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…

… 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.”

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