Overt Racial Discrimination in Casting and the First Amendment

A federal district judge in the Southern District of New York held last week that overt, intentional racial discrimination in the casting of a Broadway show is not actionable under Title VII of the Civil Rights Act and equivalent New York state law because the decision of who to appear on stage in a play is an artistic decision protected by the First Amendment. While the alleged decisions by the producers of Hadestown are reprehensible if true, the district court is correct that stage productions are protected by the First Amendment and that casting decisions are part of the artistic expression. At the same time, the potential sweep of this decision — that any casting decision is completely insulated from anti-discrimination law, and indeed that any racial discrimination based on the end content of expressive activity is protected by the First Amendment — is far too broad and would eviscerate much of anti-discrimination law. In this essay, I discuss the fact pattern, the decision, and why I think courts should take a more nuanced approach that actually looks at how much abiding with anti-discrimination law would actually impair free expression in the specific context at issue.

Allegations of Overt, Explicit Racial Discrimination by the Producers of Hadestown

The fact pattern in this case, Moore v. Hadestown Broadway LLC, No. 23-CV-4837 (S.D.N.Y. March 7, 2024), involves shockingly grotesque allegations of racial discrimination. At the outset, I want to note that this is a decision on a motion to dismiss for failure to state a claim on which relief can be granted. What that means is that the court has not engaged in any fact-finding at all, but simply treats all of the allegations in the complaint as true. As a result, we must not treat the allegations as proven for extrajudicial purposes — parties make allegations in legal filings all the time that turn out to be false. Not every chorus member who loses a job and blames it on racial discrimination was in fact discriminated against based on race. However, in this case, at least some of the evidence of racial discrimination appears incontrovertible — emails sent by senior decision-makers to the entire cast or all the African-American members of the cast and the like. Because all of the allegations have to be treated as true for the purposes of this legal motion, the court’s decision doesn’t try to sort out what’s clearly true from what’s assumed to be true. That’s important, however, in thinking about how we ought to respond to the alleged actions by the Hadestown producers — who I think at best created an impression of racist decision-making — outside the context of the litigation.

For some background based on my viewing of the musical, Hadestown is a Broadway musical retelling the Orpheus and Eurydice myth. It has a quasi-nineteenth century frontier vibe to its fantasy setting — Orpheus takes a train to Hades, and Hades (the place) has a strong company-town feel, with Hades (the god) as a rich and oppressive capitalist. Nothing about the show is overtly about race. I think the closest it comes to touching on race is the song “Why We Build the Wall,” in which Hades sings that they must continue to build a wall to keep out the enemy, identified as poverty, who wants to take what they have and the enemy does not, specifically the prosperity of having jobs building the wall. In the current context, while the song mostly sounds about capitalism and employment and empty goals, it’s hard to not also perceive that as related to immigration and efforts to build a wall on the Mexican-U.S. border. Immigration, in turn, is hard to separate from race. My point is that there is some implicit connections that can be drawn to race, but it’s at several levels removed from direct reference. This isn’t Showboat or Strange Loop or any number of other shows where race is a major topic and theme.

In any event, the producers of Hadestown noticed that their casting decisions had resulted in a production where all of the Workers (the chorus of the show) were black and Orpheus and Hades were both white. They sent an email to all the members of the cast and then another to the black members of the show’s company apologizing for inadvertently creating the impression of a “white savior” story, even though that wasn’t their intent and they didn’t view Orpheus or Hades as a white savior. To be clear, the idea of these characters as “white saviors” is patently ridiculous — Orpheus is the protagonist and greatly gifted, but he can’t save anyone, not even himself, because of his own failings. That’s the tragedy of the whole story (and part of the stupid valorization of tragedy in theater, but that’s a whole different angle of criticism). As for Hades, he is quite literally and explicitly “the Man” holding the workers down. A storyline about a rich and powerful white man oppressing a group of black workers (and also some white people like Orpheus) is in no way a “white savior” story. Also, some of the leads were people of color — at the time of the incident in question, Eurydice was played by a Latina actress of Filipino and Mexican ancestry, Persephone was played by a biracial actress, and Hermes was played by Andre De Shields, a highly prominent Black actor who won a Tony for the role after 2 previous nominations. But, despite this, the producers decided that a play with a black chorus and several white leads was a bad look, and apologized to the entire cast and then sought to address the concern.

They then, according to the complaint, engaged in the worst possible approach to fix this problem. Rather than seek to include black actors in more of the major leading roles, they decided instead to fire some of the black actors in the chorus and replace them with white chorusmembers. A dance captain informed the plaintiff that the producers intended to replace her with a white chorusmember. To put it more bluntly, as the stage manager (a supervisory employee of the producers) apparently did in an email, they decided that there were “too many Black people on stage.” Id. at 5 (quoting an email from Beverly Jenkins quoted in the complaint). The plaintiff, Kim Moore, lost her job, as did another black chorusmember, and white actors got those jobs instead.

The Court’s Decision: The First Amendment Protects Overt Racial Discrimination in Casting Decisions

Kim Moore brought a law suit in federal court, alleging three basic theories under each of state and federal employment law: 1. Intentional discrimination in employment on the basis of race; 2. Discrimination in employment through creating a hostile work environment on the basis of race; and 3. Retaliation against her for complaining about racial discrimination. (I’m simplifying because the exact details of the various statutes don’t matter very much.) Judge Loretta Preska, a Republican judge generally viewed as conservative, was assigned the case and ruled on a motion under Federal Rule of Civil Procedure 12(b)(6), which allows defendants to get cases thrown out if the plaintiff would not have a meritorious claim even if the plaintiff proved everything they allege in the complaint. Judge Preska concluded that, while the allegations would easily support a claim of discrimination on the basis of race under the statutes, decisions about which actors to hire are an intrinsic part of the storytelling engaged in by theater productions and are thus protected by the First Amendment. She thus dismissed the claims based on intentional racial discrimination in employment. Judge Preska also held that while some of the statements alleged (notably the “too many Black people on stage” statement) could support a claim based on a hostile work environment, the statements were too isolated and in an overall context that did not appear adequately hostile to support a hostile worke environment claim, and dismissed those claims as well. Finally, Judge Preska concluded that Moore’s allegations that she had complained about racial discrimination, that black castmembers who complain about racial discrimination were viewed as trouble-makers, and that retaliation for her complaints was part of the motivation for firing her did sufficiently state a cause of action and could proceed to discovery and trial. A retaliation claim doesn’t need to rely on a valid underlying claim of discrimination, as long as the underlying claim of discrimination is reasonable. I note that this may be an empty partial victory — while there is evidence of retaliation here, if the defendants can argue that they didn’t fire her based on retaliation but rather because of her race, without that creating any liability, it will be hard for her to prevail on the retaliation claim if discovery doesn’t turn up a smoking gun.

The Difficulties in Drawing Lines Based on the First Amendment and Racial Discrimination

This case, like many recent high-profile cases such as 303 Creative LLC v. Elenis, 600 U.S. 570 (2023) (the Supreme Court case about a website creator who successfully asserted a First Amendment right to not create wedding websites for same-sex couples), requires courts to weigh the government interest in preventing invidious discrimination against First Amendment protections of free expression. Tensions between anti-discrimination laws and the First Amendment aren’t a new problem — when Congress debated the Civil Rights Act of 1964, opponents argued that prohibiting racial discrimination in public accommodations and in employment would infringe property rights, violate First Amendment rights of freedom of association, and in a particularly twisted argument amount to forced servitude in violation of the Thirteenth Amendment’s prohibition on slavery. At the time, the Supreme Court gave arguments like this the back of its hand, rejecting them without substantial analysis. The serious arguments then were all about whether the Civil Rights Act was within Congress’s power under the Commerce Clause, or whether the connection to interstate commerce was too attenuated. See, e.g., Katzenbach v. McClung, 379 U.S. 294(1964) and Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). In today’s context, however, the Supreme Court has demonstrated a much higher willingness to permit discrimination based on claims of free speech under the First Amendment.

Judge Preska’s reasoning extends the idea of 303 Creative that the core question in whether the First Amendment protects discrimination on the basis of race is whether the discrimination is directly related to protected expressive conduct. Under her approach, the question is essentially is the decision to discriminate expressive conduct? Because stage shows are creative works of art protected by the First Amendment’s protections of free speech — a legal conclusion that should be obvious — and because “casting the performers who appear on stage comprises a significant part of [artistic decision-making],” Judge Preska concludes that the Hadestown producers are protected by the First Amendment even if their firing of the plaintiff was based entirely on race. She distinguishes between restrictions on speech where speech is entirely incidental to, for example, an employment relationship (for example, prohibiting an employer from putting up a sign soliciting workers that says “Whites only”), as opposed to restrictions on employment that end up restricting inherently expressive decisions. In the case of a musical, Judge Preska described the personnel on stage as part of the story that is being told, such that a requirement to not discriminate on the basis of race constitutes a burden on core First Amendment speech, not an incidental burden. And once she concluded that it burdened free expression, her analysis was done.

Before I get into the details of why I disagree with Judge Preska’s approach, I want to start by discussing the pervasive nature of racial discrimination in casting decisions. In most fields, the idea of directly and openly discriminating on race is, correctly, understood as completely unacceptable — both illegal and deeply immoral. With regards to casting, however, the practice remains so common that it is still perfectly normal for casting calls to specify the race of the actor that is being looked for. Indeed, some casting calls specify the race of a character specifically in an effort to ensure “authentic representation” of the character and the character’s race. Furthermore, while specifying sex in casting decisions is sometimes statutorily permitted under federal sex discrimination law — there is a statutory carve-out for jobs for which gender is a “bona fide occupational qualification,” frequently shortened as a “BFOQ” — the BFOQ carve-out applies only to discrimination on the basis of “religion, sex, or national origin,” not to discrimination on the basis of race. 42 U.S.C. Sec. 2000e-2(e). (A separate provision provides a BFOQ exception from age discrimination laws.) While sex would provide a BFOQ for many castmembers — Barbie must be played by someone who can present plausibly as a woman — even if race is a BFOQ in acting, the statute provides no exception. Thus, any protection for the historically routine and still ongoing discrimination in casting actors must be based on Constitutional rights grounded in the First Amendment.

It is easy to create extreme cases where requiring compliance with anti-discrimination legislation would trample on First Amendment rights. Imagine an author actively solicits the opportunity to write articles on pressing issues for any magazine that will pay them to do so. In their articles, they express a bigoted, homophobic, sexist perspective grounded in their understanding of Roman Catholic theology. While the author often receives commissions directly from magazines, they also hold themselves out to the general public to write articles to be placed in publications. A same-sex couple seeks to commission an article written by this author to appear in a magazine targeted at progressive Roman Catholics, describing their relationship and arguing that the Catholic Church should recognize relationships like theirs as equal in moral weight to heterosexual marriages. I take it as obvious that, despite the fact that the author holds themself out as providing a writing service to the general public, they can nonetheless refuse to write an article with a viewpoint they view as morally wrong. In this example, the viewpoint is wrong, but precisely what the First Amendment protects is the ability to engage in speech without government interference regardless of whether the viewpoint of the speech is correct. The First Amendment protects me from being forced to espouse fascist sentiments against my will, and it protects fascists from being forced to express a belief in liberal democracy. And simply because someone is paid to engage in speech doesn’t eliminate their First Amendment rights to decide what speech they wish to engage in.

From that perspective, the underlying basis of 303 Creative is correct: the First Amendment means that the government can’t force people to engage in core expressive activity that they disagree with (or to not engage in speech that they agree with). That’s why I believe that in a case like 303 Creative, where Colorado stipulated that the website designs were personalized for each customer and represented the expressive activity and artistry of the webdesigner, the majority correctly held that enforcing an anti-discrimination statute would violate the First Amendment. The dissent’s argument that once someone engages in speech for the general public for pay, their speech becomes simply another aspect of commerce that the government can regulate to provide equality in access to public accommodations cuts far too broadly.

But while I agree with the outcome in 303 Creative, the test cannot simply be whether someone’s activity involves creative expression at all. The race of the people writing articles for a magazine or newspaper can affect the nature of their expression and how it’s received. An article opposing slavery by Frederick Douglass is not equivalent to one written by Harriet Beecher Stowe, regardless of the substance and writing of the piece. We can see this continues to affect people’s reception of speech by the ongoing use of pseudonyms, sometimes picked to conceal or create a false impression of the gender or race of an author, in publishing: who the market thinks the author is becomes part of the speech. And choosing what articles to include, what voices to highlight, and what prominence to give them is absolutely an exercise of free speech by the editors and publishers of a newspaper or magazine. Should we conclude from this that no anti-discrimination laws can be applied to any media organization, even if they overtly discriminate on the basis of race in hiring writers and journalists on subjects having little to nothing to do with race? Surely not.

Even if one were to accept the argument that no laws against racial discrimination in employment can be applied to any media organization, the line drawing problem doesn’t stop there. Restaurateurs make a variety of artistic decisions in running their restaurants. They choose artwork for the walls, interior decoration, and dress codes for the service staff to create the vibe and expression that they want. They carefully plate food to create a beautiful aesthetic, and they have certain dishes served in specific ways for theatrical effect. In some cases, as with the Chicago restaurant Esme’s collaborations with artists for specific menus, the artistic expression is presented front and center as a focus of the restaurant. In others, the artistry of the restaurant is less obvious, but nonetheless still present. And of course, who the staff of a restaurant are has an effect on the artistic presentation of the restaurauteur’s vision. Does that mean that discriminating on the basis of race in hiring waiters is suddenly protected speech that cannot be restricted by employment law without infringing on the First Amendment? Perhaps we should extend that even further to protecting the expressive decision of a barbecue stand to provide indoor seating for white customers, with a largely African-American waitstaff, while requiring African-Americans who want the same food to pick it up from a separate take-out window. The vibe, waitstaff, interior decoration, and food preparation is part of a restaurateur’s creative expression, and understanding a choice of clientele as also part of that expression recognizes the reality of the entire meal experience as forming part of the restaurateur’s artistry. Of course, I’ve constructed this example to precisely describe Ollie’s Barbecue, the subject of Katzenbach v. McClung, one of the initial cases upholding the Civil Rights Act against Constitutional challenge.

Or to use a different example, with a different political valence: Universities exist to engage in and nurture protected expression under the First Amendment. They hire faculty on the basis of their assessments of the quality of the faculty member’s speech and on their assessment of the curricular and research needs of their departments. Content-based decisions on who to hire — “we want a scholar who writes on the role of trade in the Mediterranean world in the pre-modern period” or “we want a mathematician who studies topology” or “we want an outstanding saxophonist with performance experience on both saxophone and clarinet who can support instruction in both classical and jazz styles” — are the name of the game. (The degree to which those decisions are and ought to depend on viewpoint remains hotly contested, of course, but even to the extent that a university engages in viewpoint discrimination in hiring and firing, it may be protected by the First Amendment when it does so.) None of that implies that university employment decisions should be beyond the reach of anti-discrimination law, despite the fact that who the university decides to put in front of classrooms is a core part of how the university engages in speech. We can even go beyond the example of employment law — a major part of how a university fosters and engages in speech is through its student body. Choices about who will be part of that student body have major effects on the speech that the university creates, and the racial composition of the student body becomes part of that speech. Universities have long defended affirmative action on the basis that creating a diverse student body was essential to the educational mission of the universities, but the Supreme Court has been increasingly skeptical and hostile to affirmative action in the admissions context until functionally prohibiting it in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023).

Perhaps the universities only needed to invoke free speech and the First Amendment, and they would have prevailed. Certainly, a claim that their decisions about how to construct a class constitutes an important part of their expressive conduct seems to me at least as strong as the claim the Hadestown producers make in this case. Casting a show is of course an important part of the producers expressive conduct — but racial discrimination after inadvertently casting an entirely black chorus with some (but not all) white leading roles in a show that has little to nothing to do with race and takes place in a phantasmagoric setting whose date and location is unclear and mythical is less key to their expression than constructing an incoming class is to a university’s.

I’m not actually suggesting that Students for Fair Admissions would have come out differently if only Harvard had had the sense to argue its case based on the First Amendment. Instead, my point is that trying to determine whether anti-discrimination law needs a First Amendment exception based on general features of the speech is a hopeless cause. Inevitably, that leads only to decisions that suggest that anti-gay bigots are protected against anti-discrimination law because anti-gay bigots are sympathetic and understandable to the Republican majority of the Supreme Court, while efforts to include more black voices in the figurative chorus of a university’s student body are not, because the same majority of the Supreme Court is hostile to what it understands the effects of affirmative action to be.

I hope it’s not lost on anyone that Judge Preska held in this case that a decision firing an African-American castmember because of her race (accepting the allegations of the complaint as true) was protected by the First Amendment. As in 303 Creative, this represents a decision protecting discrimination against a historically heavily discriminated against class, while in Students for Fair Admissions, the Court was highly concerned about policies that would hurt white applicants — a class who have historically benefited from discrimination. (The original claim in Students for Fair Admissions was about discrimination against Asian-American applicants, but it’s hard to realize that by reading the majority opinion.) The Hadestown producers were ostensibly motivated by anti-racist thinking (wanting to avoid a “white savior” narrative), but their actual action was to discriminate against African-Americans. They could have addressed the “white savior” appearance by recasting Orpheus — but that would have required them to actually promote opportunities for African-American performers, instead of paying lip-service to opposing white supremacy while taking overtly racist employment actions — and in a context where the statement by the stage manager about “too many Black people on stage” raises serious questions about whether their motivation was actually just racism. Concerns about whose ox is being gored will necessarily become a key part of these considerations when courts apply categorical approaches, and its hard to not see a pattern in which the current courts are more concerned about the harms to free speech caused by government efforts to fight historical patterns of oppression on the basis of race and sexual orientation than efforts to rectify those patterns of oppression.

The Advantages of a Less Categorical Balancing Approach

Instead of applying Judge Preska’s approach of determining whether the defendant is engaged in a type of activity protected by the First Amendment — staging musicals in this case — and then applying a categorical rule that impairment of artistic decisionmaking is inherently prohibited, courts should instead actually examine the degree of impairment of free speech at issue. Some restrictions minimally affect free speech — while I firmly believe that much of the artistry of restaurateurs is indeed protected by the First Amendment, forbidding racial discrimination in restaurant staffing decisions only incidentally affects that expression. In light of the compelling government interest in fighting racial discrimination and the commitment to equality represented by the Thirteenth, Fourteenth, and Fifteenth Amendments (the post-Civil War amendments), incidental effects of anti-discrimination laws on free expression should be understood as permissible, just like the incidental restrictions on First Amendment rights involved in prohibiting racially restrictive job listings. Even when the activity is more clearly protected free expression — say, the music of an orchestra or the production of a newspaper section devoted to local news — the racial composition of the workforce producing the speech is often not a major part of the free expression involved. In those cases, the application of anti-discrimination law should be uncontroversial. Yes, the identities of the people playing in an orchestra are part of the art. But, in general, their racial background is not an important part of the art.

Sometimes, however, racial composition is key to speech. If a magazine wants to hire a columnist to write about race in America, it might well think that a writer like Ta-Nehisi Coates brings something to the table that a similarly skilled white writer does not, and racial discrimination because of its effect on the free expression of the magazine (which necessarily includes who is speaking for the magazine on topics of race) would be protected by the First Amendment. Few people would argue with First Amendment protection for a filmmaker that requires that a black actor be cast to play Malcolm X in a biopic. And sometimes art is specifically about the race of the people involved — consider Kehinde Wiley’s “Officer of the Hussars,” which reimagines Theodore Gericault’s 1812 work with a modern African-American subject instead of the white military officer in the original. A decision to stage a Shakespeare play with an all-black cast makes a statement and a meaningful artistic choice about how the perception of art changes based on race, as would an ill-advised decision to stage August Wilson’s Fences with an all-white cast. Conversely, when neither the musical itself nor the deliberate casting decisions of a musical like Hadestown involve race, in a phantasmagoric setting where there is little reason to think of race as having importance to the work, a decision to discriminate based on race should be understood as pure and simple discrimination. In a case like this, the producers of Hadestown could argue as a factual matter that race is key to their art, and the judge or jury who acts as a finder of facts could decide on whether that argument is actually convincing. But simply concluding that a musical is free expression protected by the First Amendment, and that casting decisions are part of the artistic expression of the producers, both of which are indubitably true, should not be sufficient to shelter musical producers from having to comply with any aspect of anti-discrimination employment law.

Focusing on the actual effect on the actual speech and whether the impact of the law in a specific case has the effect of primarily regulating an employment relationship or access to a public accommodation (permitted) or of requiring or prohibiting speech strikes an appropriate balance between the equally compelling government interests. That’s not how free speech jurisprudence is usually structured, in part because of the need for clarity in advance with regard to free speech to avoid chilling protected speech that might be construed as unprotected. Nonetheless, it reaches a better balance between the concerns about permitting free speech while also about promoting equality and the human rights of all people. When weighing claims that implicate both the First Amendment and anti-discrimination law, we need to be concerned both about chilling protected speech and about under-deterring invidious discrimination. And while there will always be edge cases where protected speech might be chilled, workable rules based on the actual effects on speech could be constructed. The racial composition of an orchestra will almost always be irrelevant to their art, notwithstanding the fact that an orchestra’s output is core protected expression. Likewise, the racial or gender composition of the staffing of a media organization will generally not be protected from anti-discrimination law by the First Amendment. Conversely, the gender of a reporter assigned to cover a beat about sex discrimination does meaningfully affect the expression — especially if the reporter is writing pieces in which the identity of the writer is made key to the protected speech, like in an editorial column.

Of course, selecting a reporter for that specific beat on the basis of sex might already be protected as a “bona fide occupational qualification.” So this approach would be essentially recognizing a Constitutional BFOQ First Amendment exception — a “bona fide free-speech qualification,” if you will. And just like a BFOQ does not apply to any claimed justification for sex discrimination — most restaurants can’t discriminate on the basis of sex in hiring waitstaff, even though restaurants engaged in sex work or quasi-sex work like topless bars and Hooters can sometimes successfully argue that sex is a BFOQ — merely claiming that race is a qualification for casting does not inherently provide protection. With the ordinary development of the law, a “bona fide free-speech qualification” approach will quickly result in a set of clear cases — casting decisions in works that have central textual treatments of race, bona fide; hiring decisions for orchestras under ordinary performance circumstances, not bona fide — while still leaving flexibility to address the occasional outlier examples.

A categorical approach will necessarily be both over and under-inclusive — permitting discrimination with neither an artistic purpose nor a significant artistic effect if it falls into a category like “casting musicals” that is generally permitted while actually infringing on free speech rights in narrow contexts where race actually is relevant, even when they fall in a general category where hiring decisions based on race would not be viewed as an aspect of free speech. For example, while a university obviously engages in protected speech, and the racial identity of professors can form part of that speech, I doubt that Judge Preska or many other jurists would be willing to consider racial discrimination in faculty hiring decisions as a part of that protected speech. However, in hiring an African-American Studies professor, the race of the professor may actually be relevant to the free speech rights of the university in a way where the race of a Mathematics professor will essentially never be — and focusing on the actual effects on the speech gets at that in a much better way than a categorical approach.

Applying this approach to Hadestown would easily allow the claim to proceed beyond a motion to dismiss. Perhaps the Hadestown producers could show that they did not in fact make their decision based on race. Or perhaps they could persuade a fact-finder that in their case, the race of the cast is a major artistic decision that importantly affects the art they are making, even though the text of the work doesn’t mention race at all, the setting is unclear and phantasmagoric but doesn’t suggest a setting in which race is central, and the cast is multiracial without any clear racial connotations in casting overall. Having seen their show, I find that highly implausible, but they might be able to produce evidence that would persuade a fact-finder. But they should not get a blank check to discriminate in casting, simply because casting is an important artistic decision and theater productions have First Amendment protections.

In the meantime, I can only recommend that people not attend Hadestown. While we should always take allegations in a complaint as allegations, not as proof of their claims, the quotes from the emails in the complaint make it seem likely that the Hadestown producers discriminated on the basis of race, at least to some extent. We can then as individuals oppose racist speech by refusing to give it our money, just like how we can oppose racist speech in other contexts. (My advice in this case is made easier by the fact that I don’t think Hadestown is particularly worth watching apart from the concerns about a production that sees a problem in “too many Black people on stage”— it does some neat things with music in parts, and has a couple of great songs, but it’s on balance not great. But even if it were, we should take actions to oppose racism in stage productions.)