Will Fox Bring Back Jussie Smollett on 'Empire'?

The network's upfronts are scheduled for May 13, and executives likely will want to resolve the actor's role on the hit show well before then.

Jussie Smollett managed to avoid a trial after Chicago prosecutors unexpectedly dropped charges against him for allegedly lying to police about a hate crime. But the actor’s future on Fox’s Empire is far from certain, even if co-star Taraji P. Henson indicated on The View on Thursday that she thinks he'll be back for season six. 

The network’s upfronts are scheduled for May 13, and executives likely will want to resolve the actor’s role on the hit show well before then. While Empire’s 18-49 ratings have been dwindling in recent years, slipping from the network’s No. 1 spot to No. 3, after The Masked Singer and 911, the show is still Fox’s No. 2 drama. A spinoff show, Star, also on Fox and on which Smollett has appeared, has bolstered Empire’s reach. 

Executives in charge of making the final decision don’t appear to be wasting any time. “I’m sure they’re scouring ratings and online feedback,” a source close to the show tells The Hollywood Reporter, referring to Empire’s executive producers. “What I’ve heard is that fans and viewers like him, they want him, they want his character in the show.”

For now, Fox has yet to decide whether to order another season. If they do, they would likely enter into creative negotiations with 20th Century Fox Television and Imagine Entertainment, the two companies that co-own the show. “That would likely be when the Jussie question is determined,” says one source, “My guess is that they’ll wait and see how the whole season plays out first.”

Failure by Fox to decide Smollett’s Empire fate before the upfronts could potentially eclipse the network’s efforts to pull off its first post-Disney slate presentation and make for a messy PR cleanup task. “If they think he didn’t act appropriately, I’m sure there’s a provision that allows them to terminate his employment, with cause,” says Philip Bonoli, an employment attorney who specializes in contract negotiations.

Bonoli points out that networks and studios operate with a different set of guidelines than the justice system. So-called morality clauses and contractual language about what is or is not acceptable behavior on- or off-set could factor into their decision. “Their standard is not proof beyond a reasonable doubt,” Bonoli says. “They’ve issued policies, and rightfully so, and if they don’t believe him, they could act and sever the relationship.”

If no decision has been made, Fox would still have until the end of June, when contracts are exercised, to make a final call.

Whether he stays or leaves Empire, however, Smollett has already won a legal victory. After weeks of investigation by Chicago police into the purported hoax, a grand jury handed down a recommendation that Smollett be indicted on 16 felony counts for lying to police about his role in staging the alleged hate crime. Smollett claimed that two men shouting racist and homophobic slurs had attacked and beaten him, and then poured bleach on him. Police later said they believed that Smollett had hired two men to help him stage the attack. After the indictments were handed down, Fox wrote him out of this season’s last two episodes.

“If I’m Fox, it’s going to be hard,” adds Eileen Koch, CEO and co-founder of EKC PR, which consults with star clients. If they don't bring him back, "the people who love Jussie will hate Fox, and those who don’t like him will love Fox.”

Though the charges against him have been dismissed, Smollett isn't totally in the clear. The city of Chicago has sent the actor a bill for $130,106.15 for “the hours, the overtime, the financial costs and the resources that were used” during the investigation, said police department spokesperson Anthony Guglielmi.

“It was an extensive investigation that required a lot of review of cameras. There was technical assistance provided by external agencies, but it’ll likely only include Chicago expenses and not expenses incurred by the FBI and other technical experts we brought in for analysis,” Guglielmi added.

Joseph Magats, the Cook County state prosecutor who dismissed the charges, along with Mayor Rahm Emanuel and the city’s superintendent of police, have expressed their belief that Smollett was guilty. PR guru Howard Bragman says, “This is a scar he’ll carry for the rest of his career.”

"You pretend that doesn’t exist," says Bragman of criticism leveled at Smollett. "You live in your truth and your reality. We have a president who’s in complete denial. Why can’t Jussie say what he has to say?"