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The First Amendment has protected all kinds of speech in the past. On Thursday, it was determined to protect a cable network’s wardrobe decisions, even if it caused a transgender man discomfort.
Last August, B. Scott (born Brandon Sessoms) filed a $2.5 million lawsuit against BET Networks and its parent company Viacom for alleged discrimination. The plaintiff was hired to be a style correspondent for the pre-show of the 2013 BET Awards, but when he showed up, his supervisors didn’t like what they saw.
“B. Scott was literally yanked backstage and told that he ‘wasn’t acceptable.’ B. Scott was told to mute the makeup, pull back his hair and was forced to remove his clothing and take off his heels; thereby completely changing his gender identity and expression,” said the complaint filed in Los Angeles Superior Court. “They forced him to change into solely men’s clothing, different from the androgynous style he’s used to, which he was uncomfortable with.”
In reaction to the lawsuit, Viacom brought an anti-SLAPP motion and asked the judge to strike the complaint as an impingement of its First Amendment rights.
On Thursday, Los Angeles Superior Court judge Yvette Palazuelos granted the motion.
In the course of delivering news and entertainment, all sorts of decisions by studios have been deemed to be part of the creative process and in furtherance of expression. Last year, for instance, CBS’ hiring of young, attractive meteorologists was deemed to qualify as a form of protected activity.
“Similarly, Defendants in this case allegedly exerted control about the appearance of individuals appearing on-air,” writes judge Palazuelos in a tentative ruling which was adopted after a hearing this morning. “The argument is stronger with respect to the instant action, as Defendants were directing decisions about Plaintiff’s on-air appearance after already hiring Plaintiff.”
Having concluded that Scott’s complaints target protected activity, the judge moves to an analysis on whether or not the lawsuit should proceed based on his probability of ultimately prevailing.
Scott attempted to point to evidence of discriminatory intent. During discovery in the case, internal emails emerged from BET executives including one from BET Music programming president Stephen Hill that said, “I don’t want ‘looking like a woman B Scott.’ I want tempered B Scott.”
Despite this, Scott still couldn’t overcome the First Amendment, which among other things, shielded Warner Bros. Television when a former writer’s assistant claimed harassment on the NBC sitcom Friends, protected parade organizers who refused to permit gay, lesbian, and bisexual participants and most recently, guarded ABC and Warner Horizon Television from claims of failing to feature non-white cast members on The Bachelor. One of the themes in these cases is that the speaker gets to choose the message they wish to convey — and gets latitude on the manner in which that happens.
Nodding to the Bachelor racial discrimination ruling, judge Palazuelos writes “the same logic applies, as Defendants allegedly made decisions about the creative vision of the television program. If casting decisions are protected speech, then logic dictates that decisions about wardrobe, style, and whether to appear with or without a co-host, also fall within the protection of the First Amendment as these decisions impact ‘the end product marketed to the public.'”
Scott might feel his own free expression as a performer was usurped when supervisors forced him into men’s clothing, but as the litigant asking a government body to redress injury, it became his chore to show that the TV network’s speech was not being abridged. He couldn’t. The ruling could be appealed.
Viacom was represented by Richard Kendall at Kendall Brill & Klieger.
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