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ABC and producer Warner Horizon Television have filed their first detailed response to claims that The Bachelor franchise has violated civil rights laws by deliberately excluding people of color from the roles of the “Bachelor” and “Bachelorette.”
On Thursday, the defendants submitted a motion to dismiss that argues that the First Amendment protects creative choices in casting and cites a decision last week by the Supreme Court on the issue of indecency in broadcasting. The motion also defends ABC from perceptions that the network doesn’t care about the goals of reducing racial bias and intolerance with citations of other shows including Grey’s Anatomy, Modern Family and Desperate Housewives.
“This is not a case of racial discrimination,” say the defendants. “Rather, this lawsuit is about Plaintiffs’ attempt to communicate their preferred message to the public by controlling the content and casting of Defendants’ television series.”
At its core, the 25-page memorandum submitted by ABC and Warner Horizon offers three big reasons why the plaintiff’s claims don’t pass legal muster.
The first reason offered, as expected, is that the allegations fly in the face of the First Amendment. “Television programming is core protected speech,” say the producers. “Defendants’ expressive choices regarding both the message their programming conveys, and the individuals who convey it, are entitled to broad protection.”
ABC says that Nathaniel Claybrooks and Christopher Johnson, the two Nashville residents who brought the class action, acknowledge that reality television can serve the important purpose of communicating speech and messages. The network quotes the lawyers who brought the lawsuit as saying that action was filed because The Bachelor and shows of its type “send a message” that “is extremely influential in shaping the way people view one another and themselves.”
That point is agreed upon by the defendants, but they say that they are in the position to make the choice about messaging. As precedent, the defendants cite a 1995 Supreme Court decision that determined that parade organizers weren’t compelled to include the participation of the Irish-American Gay, Lesbian & Bisexual Group of Boston.
The plaintiffs don’t believe that free speech is at the core of this dispute but rather that the lawsuit is premised upon employment and contracts — or, more precisely, the refusal to contract with African-Americans because of their race. The lawsuit might amount to a battle between the First and Fourteenth amendments to the U.S. Constitution if it were not for the next two reasons offered by ABC and Warner Horizon about why the lawsuit should be dismissed.
The defendants are attempting to bring the “void-for-vagueness doctrine” into play by testing in a fairly novel way the Supreme Court’s decision that invalidated the FCC’s enforcement actions against ABC and Fox for airing fleeting profanity and nudity. Just last week, the high court ruled that the government had violated the networks’ due process in failing to give advance notice on its indecency policies. Citing the decision, ABC now says the same reasoning applies in this case:
“It is unclear whether, when, and to what extent any show or network that targets a specific audience or demographic could be considered illegal, or whether any casting decision that takes into account race or any immutable characteristic of an actor or actress could subject a television producer or network to civil liability. This lack of concrete standards, known in advance, for the imposition of civil liability for allegedly discriminatory casting violates the void-for-vagueness doctrine because it deprives content creators such as Defendants of fair notice of what is, and is not, prohibited in the context of making casting decisions integral to the messages those creators intend to convey.”
Whether the judge accepts the analogy of government enforcement actions to a class action demanding redress for alleged racism remains to be seen.
But ABC and Warner Horizon, represented by Adam Levin and Seth Pierce at Mitchell Silberberg & Knupp, offer up one final reason why the judge shouldn’t allow the plaintiff’s claims to go forward.
The defendants behind the hit show say that the plaintiffs don’t allege any facts sufficient to support a plausible claim for discrimination. Specifically, they say that the fact that 23 title characters from past seasons of the show have always been Caucasian, the fact that the plaintiffs believe that they were “well-qualified to become the next Bachelor” and the fact that Claybrooks felt he was “rushed through the [interview] process” because of his race don’t add up to conclusory evidence of racism.
“Plaintiffs’ subjective impressions or beliefs — no matter how heartfelt — are insufficient to support their conclusory allegation of discriminatory intent,” says the memorandum. “Put simply, the mere fact that Plaintiffs were not selected for the lead role — from the multitude of individuals considered — does not establish that Defendants engaged in intentional race discrimination in casting for that series.”
The plaintiffs probably hope to find more facts to support their allegations, and their success could depend on whether a judge dismisses the case or allows ample discovery so that plaintiffs can find some smoking-gun evidence of racism in the show’s “decision-making process.”
This lawsuit is a sensitive matter for the network, and the motion to dismiss goes a little beyond the usual in handling the charges that have been lodged. For example, the defendants say they “share Plaintiffs’ goals of reducing racial bias and prejudice and fostering diversity, tolerance and inclusion” and point out that the plaintiffs are conceding that some ABC shows highlight characters of color and interracial relationships.
The plaintiffs say those shows do not involve the “exhibition of actual romance between nonwhites or whites and people of color.”
“But that is simply false,” responds ABC. “Numerous television programs, including some of ABC’s biggest current and recent hits, highlight non-Caucasian relationships and interracial romances.”
For examples of actual romance, ABC points to Grey’s Anatomy, Modern Family, Desperate Housewives, Lost and Ugly Betty.
We’ve reached out to the plaintiffs and will update with their comment when we get it.
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