Should freedom of expression always trump racial equality in broadcasting?  In a nutshell, that was the issue to be decided by a Tennessee district court earlier this month in a racial discrimination suit.

Two black men, Christopher Johnson and Nathaniel Claybrooks, brought a law suit against ABC.  They claimed that ABC was discriminating against black people by only selecting white contestants as finalists on The Bachelor and The Bachelorette.  The two shows, combined, have run through 24 seasons.  Throughout that time period, none of the finalists have been black – or any other non-white minority.

The plaintiffs alleged discrimination in the casting process and claimed that ABC was specifically excluding non-white candidates.  They argued that this type of racial segregation in the media “perpetuates racial stereotypes and denies persons of color opportunities in the entertainment industry.”  ABC responded by arguing that the “creative process” in producing any television program is fully protected by the First Amendment and that this also applies to the casting process.

The court sided with ABC and dismissed the lawsuit after hearing a motion to strike out the case.  Here is the court’s conclusion:

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plaintiffs’ goals are laudable: they seek to support the social acceptance of interracial relationships, to eradicate outdated racial taboos, and to encourage television networks not to perpetuate outdated racial stereotypes.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

On one level, the court rightly held there should be a reluctance, on the part of any court, to interfere in what could be classified as creative casting decisions.  It would be hard to argue successfully that a broadcaster should have been forced to include more white people in The Jefferson’s or The Cosby Show or more black gangsters in The Sopranos.  It seems quite reasonable for courts to steer clear from scrutinizing the casting and producing processes for most types of entertainment that are content oriented.  To do so would indeed be to limit freedom of expression in a very serious way.

On the other hand, there must be a difference between casting decisions that really are part of the “creative process” as opposed to casting decisions that apply to reality shows, news broadcasts, sports programs and other types of shows.  If, for example, ABC had a policy of only hiring white news broadcasters, would that not be considered discriminatory?  Would that really be considered part of the “creative process” and thereby excluded from judicial scrutiny?  Could American Idol implement a policy of refusing to allow black contestants, as part of the “creative process?”  Perhaps in the U.S., the First Amendment argument relating to freedom of expression would still win out in these cases, though, as a Canadian lawyer, I am not about to draw that conclusion.

But in Canada, freedom of expression does not simply trump equality rights.  The Canadian Charter contains balancing provisions which provide the courts with the jurisdiction to consider competing rights and look at ways of providing meaningful content to both sets of rights.  If this case had been brought in Canada, the framing of it may have been quite different.  Instead of being presented as a case about the discriminatory messaging that the show was allegedly promoting, the case could have been characterized in Canada as one about equality of opportunity for potential contestants and racial discrimination.

It still may not be entirely clear, even in Canada that courts can or should interfere in the creative process of developing television shows or movies and force media producers to produce all, or even some of their content in a non-discriminatory way.  However, there is probably a reasonable argument in Canada, that the mere selection of candidates for a reality program should be conducted in a non-discriminatory fashion unless it can be demonstrated that there is a legally supportable basis for doing otherwise.   Whether or not that was the case with a show like The Bachelor or The Bachelorette is probably something that, in Canada, would have been tested at a full trial or a human rights tribunal hearing rather than being dismissed outright on a preliminary basis.