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Is Unconventional Obligatory? Freedom of Expression vs. Equal Protection  Before the Footlights

Published in The Daily Record September 16, 2016

Unconventional casting, which assigns dramatic roles to performers of different race or gender or ability than the role would seem to have been conceived for, has been much in vogue recently. The celebrated musical Hamilton is perhaps most prominent instance right now, with nonwhite actors portraying our white Founding Fathers. All-female and all-male Shakespeare productions are much in vogue. I am continually exposed to this new vogue because not only do I write of law and policy (in these pages), but I also review theater regularly for BroadwayWorld.com and The Hopkins Review. But I write here as a lawyer, not a theater fan. My purpose here is not to approve or disapprove of unconventional casting, but to discuss the legal battle I sense brewing up around this practice.

Black Roles, White Actors?

The coming fight is over one particular form of unconventional casting, placing white actors in non-white roles.[1] Acceptance of non-white actors in white roles is fairly widespread. However, there is a resistance when the traffic runs the other way. It is argued that this is “appropriation” of the ability of oppressed and silenced minorities to tell their own stories and contravention of the wishes of authors, and that it unfairly curtails the already limited career opportunities of minority performers.

There was an incident last year, for instance, when Katori Hall, author of The Mountaintop, a play about Martin Luther King, Jr., learned that a white actor had been cast as King in a production at Kent State University; Hall wrote an angry denunciation and changed the standard language of her contract with companies producing the play to prevent the companies from putting white actors in either of the play’s two roles.

And this March there was a flap about the casting of Hamilton. The original cast has been moving on, and when casting notices for replacements first went out, they specified that only “NON-WHITE ACTORS” [all caps in the original] need apply for most of the roles. There was an outcry, after which the nonwhite language was brought down to lower case and a confusing additional phrase was added: “Performers of all racial and ethnic backgrounds are encouraged to attend.”[2]

CNN quoted Randolph McLaughlin, a “New York human rights lawyer,” as suggesting that any racial requirement in casting would violate New York’s law against discrimination in employment. Assuming that McLaughlin is correct that New York really does forbid racially-exclusive casting, the question becomes: can the New York law stand?

A Revival of Bakke Arguments?

I know of no test cases yet, but it looks likely some disappointed white actor will bring one sometime soon, much as Allan Bakke challenged affirmative action in medical school admissions a generation ago. And when that actor’s suit is brought, I predict the right of theatrical employers to discriminate will be upheld, because the precedents supporting it are in place. But whatever happens, it’s a fascinating problem. Actually two problems.

The first problem, in a nutshell, is this. Except in community theaters, casting is an employment decision as well as an artistic one. Employers are not supposed to discriminate racially in hiring decisions, under federal and state law everywhere. There is, however, a long tradition of making exceptions for discrimination in recruitments where membership in a particular category (ability, gender, age, etc.) is a “BFOQ,” a bona fide occupational qualification. Indeed, the Equal Employment Opportunity Commission’s regulations specifically make gender a BFOQ for casting decisions “for authenticity.” But there is no similar protection for race-based decisions. And in a world where racially unconventional casting is the norm, as any theater critic will tell you it now is, how can any racial casting decision be defended as having been made “for authenticity”? In an era where Idris Elba is being considered for the part of James Bond, audiences no longer expect or require that kind of authenticity.

First Amendment vs. Commerce Clause and Equal Protection

I therefore suspect that the “authenticity” argument would fall before racial non-discrimination laws. But a stronger argument exists. No one would dispute that a theatrical production is artistic expression, protected by the First Amendment.[3] And it would be frivolous to claim that, even in an era of public acceptance of unconventional casting, the effect of this protected expression is the same when unconventional casting occurs. Audiences will notice, and the experience and the message will be different. Hence, if antidiscrimination laws, whether federal or New York ones, are being invoked to force unconventional casting, we have a direct conflict between First Amendment principles and Commerce Clause and/or Equal Protection ones.

There has been a decided tilt in jurisprudence over the last generation to resolve such conflicts in favor of the First Amendment. Religious schools were allowed to reinforce their (First Amendment) Free Exercise Clause-based message by terminating religion teachers who violate their churches’ prohibitions against extramarital sex, even when those prohibitions facially violate Commerce Clause-authorized pregnancy discrimination laws.[4] And the state equal protection-based New Jersey public accommodations law had to yield to the First Amendment associational rights of the Boy Scouts when they ousted an advocate of LGBT freedoms from membership[5] in keeping with their since-abandoned exclusion of gays.

There certainly remains some countervailing authority. In 2002, a Texas strip club, though purveying First Amendment-protected performances, was told it could not discriminate against African American dancers.[6] An Atlanta strip club recently found it could not terminate a dancer for being pregnant.[7] In these cases, then, Commerce Clause-based antidiscrimination statutes trumped First Amendment concerns. But the theater is all about speech, whereas exotic dancing, though properly protected as a kind of speech, isn’t speech, really. Plays and musicals are much closer to core concerns the Free Speech and Assembly clauses exist to protect, and I’d look for greater protection.

While all this remains to be worked out, there will be some dramatic moments (in the generic sense of the word) before the bench. But my crystal ball says that the courts will end up allowing the exclusion of whites from certain roles in front of the footlights.

__________________

[1]. There is a shameful history, especially in Hollywood, of not considering non-whites for non-white roles, whether we’re discussing Mickey Rooney in yellowface in Breakfast at Tiffany’s (1961), or Laurence Olivier’s excruciating blackface in Othello (1965), or the casting of most of the Thai parts in The King and I (1956). But what I am discussing here is whether whites should be considered at all for non-white parts.

[2]. As of September 3, 2016, that language is absent from the “Auditions” part of the website.

[3]. The First Amendment protection of theater was mentioned in dicta in a case concerning a high school drama teacher terminated for allowing mild swearing in shows her students staged. Webb v. Lake Mills Cmty. Sch. Dist., 344 F. Supp. 791 (N.D. Iowa 1972).

[4]. Dias v. Archdiocese of Cincinnati, No. 1:11-CV-00251, 2012 U.S. Dist. LEXIS 43240 (S.D. Ohio Mar. 29, 2012). Federal laws forbidding discrimination in private employment rely on the Commerce Clause, not the Equal Protection Clause, for their constitutionality. However, it is typical that state laws forbidding employment discrimination rest on equal protection or equal protection-like clauses of state constitutions for their constitutionality. The federal Equal Protection Clause has been held not to enable Congress to legislate against discrimination by private actors.

[5]. Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000).

[6]. Gordon v. JKP Enters., 2002 U.S. App. LEXIS 29270 (5^th Cir. 2002).

[7]. Newby v. Great Am. Dream, Inc., No. 1:13-CV-03297-TWT-GGB, 2014 U.S. Dist. LEXIS 182342 (N.D. Ga. Dec. 18, 2014). Pregnancy, not being a matter of the “authenticity” shielded from the influence of antidiscrimination laws, thus is analytically in the same place as race, which, as noted, is not shielded by “authenticity” either. Interestingly, the Newby court mused in a footnote that the club might have been able to fire the dancer for loss of sex appeal.

Copyright (c) Jack L. B. Gohn

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