8:50am PT by Eriq Gardner
'Bachelor' Producers Planning First Amendment Defense in Race Bias Case (Exclusive)
ABC and producer Warner Horizon Television have given the first indication of the legal defenses that will be brought forward to defeat claims that The Bachelor franchise has violated civil rights laws by deliberately excluding people of color from the roles of the "Bachelor" and "Bachelorette." In April, two Tennessee citizens launched a class-action lawsuit, a move the defendants believe won't survive First Amendment hurdles.
The first point of order in this lawsuit is deciding where it will be adjudicated.
The parties have submitted a joint request to temporarily suspend a motion for class certification in favor of first resolving whether the case will proceed in Tennessee or California. The defendants favor the Golden State because all casting decisions in the 23 cycles of the shows took place there and almost all of the material witnesses are located there.
In raising the jurisdictional issue, the producers also revealed the grounds by which they will seek dismissal. According to court papers, "Defendants’ Motion to Dismiss is premised on the ground, among others, that television casting decisions are protected by the First Amendment."
In a footnote, ABC and Warner give two examples of case law to support their argument, including Hurley v. Irish American Gay..., a 1995 Supreme Court decision that determined that parade organizers weren't compelled to include the participation of viewpoints they disagreed with, and Ingels v. Westwood One Broadcasting Services, a California appellate decision that held that a radio broadcaster had the free speech right to exclude a would-be call-in participant who was deemed too old.
The producers of The Bachelor hope for a similar outcome and have retained attorneys Adam Levin and Seth Pierce at Mitchell Silberberg & Knupp, to bring forward their arguments.
Levin is notable because he's handling ABC/Touchstone Television's defense of Nicollette Sheridan's lawsuit over her firing from ABC's Desperate Housewives. And he was one of Warner Bros. Television's lawyers who won a landmark decision six years ago at the California Supreme Court defeating a claim brought by a former writer's assistant on the NBC show Friends. The plaintiff in that case alleged that she was victim of a hostile workplace when the show's writers told sexual jokes during script development. A First Amendment defense was raised, but the lawsuit was tossed primarily on the basis that the alleged offensive conduct was not because of her sex but part of the creative process. A show containing sex jokes naturally had a writers room full of sex jokes.
The defendants in this case no doubt would love the convenience of fighting on home turf, but even in California, the First Amendment isn't always an impenetrable shield against discrimination allegations made against media companies. For example, a California judge ruled in March that CNN's free speech rights couldn't protect the news organization against a lawsuit made by a deaf group contending that CNN has an "equal access" obligation to caption videos uploaded to its website.
Nathaniel Claybrooks and Christopher Johnson, the plaintiffs in the Bachelor racial discrimination case, are alleging that ABC and Warner have violated laws that prohibit whites from refusing to contract with African-Americans because of their race. Attorneys for the plaintiffs say they will be identifying "Defendants’ decision-makers" and gathering information about the "Defendants’ decision-making process" and that "discovery to identify minority applicants for positions on the shows will overlap with broader discovery efforts to establish the numerosity requirement for class certification and to develop anecdotal evidence of the discrimination suffered by other minority candidates."
The plaintiffs believe that fact-finding in the case will determine whether a transfer is indeed most convenient, and they point to the fact that Bachelor applicants participate in casting calls around the country, including Nashville. But they say it's necessary to coordinate these efforts earlier, rather than later.
There's also a suggestion that the plaintiffs might amend their complaint to include an alleged violation of Title XII employment discrimination laws, which would open up a legal discussion of the proper way to classify those who star on reality TV shows. For their part, the defendants say they "disagree that the titular characters in the shows at issue were employees."