Are Studios’ Casting Decisions Considered Free Speech?

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For quite some time now, I’ve been concerned about the potential erosion of studios’ First Amendment rights in their hiring decisions, as evidenced by a series of court rulings on discrimination lawsuits brought forth by actors. The latest development came last year when a court refused to dismiss Gina Carano’s case against Disney over her termination from The Mandalorian, delving into the question of whether private companies can legally fire employees whose beliefs contradict their own values under the guise of free speech. Earlier, another court had advanced Brent Sexton’s lawsuit against Apple Studios, suggesting that the studio may have discriminated against him by withdrawing a role offer for Manhunt after he declined the COVID-19 vaccine.

On Friday, California’s Second Appellate District overturned an earlier ruling based on a state law that permits dismissal of claims intended to suppress free speech in advance. This decision reinforces the general principle in most instances that casting decisions can be considered speech and thus fall under First Amendment protections. As the order explained, “Apple’s action was not just a trivial matter of deciding between using nails or screws to construct a set. Casting Johnson was a crucial aspect in recounting a pivotal event in American history.

As a fervent admirer, here’s my spin:

In the year 2022, Apple Studios kick-started preparations for “Manhunt”, a gripping miniseries chronicling the manhunt for John Wilkes Booth after Abraham Lincoln was assassinated. Given that the COVID-19 pandemic was at its peak, the studio decided to implement a universal vaccination mandate across all productions. This decision was influenced by several factors, one being the understanding that fully vaccinated sets are less likely to be halted. Moreover, since the series was set to film in Georgia, which had more lenient virus protocols, there was an enhanced risk of infection for the cast and crew.

In this situation, actor Sexton, renowned for his work in shows like Bosch, The Killing, and Deadwood, was faced with a predicament. He had been presented with a $595,000 opportunity to play the role of Johnson, but due to a pre-existing health condition that his doctor deemed as a risk factor for vaccination complications, he requested a medical exemption. Apple turned down this request and rescinded the offer. Subsequently, Sexton filed a lawsuit, arguing that Apple’s vaccine policy implementation was unconstitutional. Apple declined to comment on the matter.

Apple attempted to dismiss the lawsuit using California’s anti-SLAPP statute, a law designed to safeguard free speech against baseless lawsuits concerning matters of public significance. However, in an unexpected turn, the court supported Sexton instead. This decision was one of the rare instances where an actor’s complaint, regarding a studio’s denial of accommodations for vaccine refusal, advanced.

In their ruling last Friday, the panel emphasized that the ongoing lawsuit touches upon matters of public concern. As stated by Associate Justice John Shepard Wiley Jr., Apple’s participation in the industry-wide vaccination agreement and the condition it placed on Sexton’s offer regarding vaccines fueled discussions about vaccination policies. In the midst of a heated public discussion about vaccination policies, Apple chose to act: they made vaccinations compulsory within their premises. By navigating through a complex issue and adopting a firm stance, Apple established a clear standpoint.

In their ruling, the justices noted that the TV show’s portrayal of Johnson’s legacy mirrors broader debates on historical accuracy in films such as “Birth of a Nation” or “Gone With the Wind“. They suggested that these depictions can stir up contemporary societal issues. This aligns with other cases dealing with the First Amendment and casting decisions, like the case involving writer and producer Stanley Wilson who was dismissed by CNN for plagiarism. In this instance, the California Supreme Court decided that a TV producer’s choice of actors can be part of the message conveyed. The court also ruled in another lawsuit against CBS concerning an episode of “CSI: Crime Scene Investigation” that artistic freedom should remain unrestricted, even if it takes unexpected turns. They emphasized that we shouldn’t allow juries to scrutinize the creative process to decide what was essential for the final product and what wasn’t, or impose liability.

In a statement, attorney Scott Street representing Sexton, expressed that the decision disregards several aspects of the law and called for the Supreme Court to reconsider the case. Furthermore, he stated that the anti-SLAPP statute was not designed to safeguard large corporations from legal action initiated by their employees when they sue to contest discrimination.

In a different federal courtroom, Carano was successful in preventing her discrimination lawsuit against Disney and Lucasfilm from being dismissed. This is because the companies cannot claim protections under the First Amendment, despite their involvement in free speech activities such as creating “The Mandalorian”. The U.S. District Judge, Sherilyn Peace Garnett, decided that while the studios may engage in activities related to free expression, they do not automatically benefit from protections for “expressive association”, which safeguards the right to either associate or dissociate with individuals who might promote particular viewpoints.

Disney maintains that it has a constitutional right, under the First Amendment, to select employees whose beliefs align with its values, even if this goes against certain state discrimination laws. They argue that when it comes to employers involved in “expressive activities,” such as producing movies and TV shows (in Disney’s case), the government cannot compel them to deliver their message through employees like Carano, who allegedly impede their ability to express these values, which include respect, integrity, and inclusivity. Essentially, Disney contends that the First Amendment grants it the power to safeguard its speech in the Star Wars series from being linked with views that it, along with many viewers, find objectionable and inconsistent with its message.

Although there isn’t a federal law shielding SLAPP (Strategic Lawsuit Against Public Participation) suits, Disney chose to immediately appeal the court’s decision to let the case proceed, believing it should have been dismissed. However, this request was denied, and the trial is now scheduled to begin in September.

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2025-04-02 00:54