Back to the Drawing Board! Legislating Hollywood. A Regulation that Resolves the Film Industry’s Conflict between the First and Fourteenth Amendments

The United States Department of Justice “contended that equal employment opportunity in the broadcast industry could ‘contribute significantly toward reducing . . . discrimination in other industries’ because of the ‘enormous impact . . . television . . . [has] upon American life.’” Courts have also recognized that “communities . . . ‘[must] take an active interest in the . . . quality of [television programming because television] has a vast impact on their lives and the lives of their children.’” Unfortunately, even though the government acknowledged that nondiscriminatory hiring and diverse programming are important, Hollywood continues to promote an insular culture that excludes minorities from influential behind-the-camera and on-screen positions. Although the government established agencies, such as the Federal Communication Commission (FCC), to ensure networks and stations operate in the public’s interest, my research revealed that minorities are still vastly underrepresented in the film industry. My research study confirmed that minority representation remained nearly stagnant between 2010 and 2014, and that the White majority continued to dominate as directors, casting directors, screenwriters, actors, and actresses. These results suggested that America’s existing regulatory schemes have been unable to break the cycle of bias among film creators; and that the lack of diverse perspectives in Hollywood have minimized the number of casting calls seeking non-White talent and perpetuated the inaccurate, stereotypical portrayal of minorities. As a result, society’s members developed negative implicit biases about minorities that strengthened the bamboo ceiling in the film industry and prevented people of color from succeeding as professional artists. The courts believe that “communities throughout the . . . country . . . must bear [the] final responsibility for the quality and adequacy of television service” and that members of the “public [should not] feel . . . they are unduly interfering in the private business affairs of others” because the public has a direct interest in the television programming. However, recent decisions, such as Claybrooks v. ABC and Adarand Constructors, Inc. v. Pena, suggest that courts sometimes fail to recognize the public’s desire to promote anti-discrimination in employment and diversity, especially when these interests conflict with an individual’s freedom of expression. This article urges the public to hold Congress and the judiciary responsible for ensuring children are exposed to a diverse portrayal of minority experiences on screen and providing minorities with the equal opportunity to earn a reasonable living in entertainment—America’s most influential industry. Our judges need more direction from Congress to establish a precedent that properly balances our country’s First Amendment and anti-discrimination values because, currently, the courts are failing to stop discrimination in Hollywood despite Congress’s passage of Title VII and Section 1981. Entertainment leaders also need congressional guidance because the industry has not eliminated its improper practices through self-regulation. Thus, this article presents a legislative solution that can reduce the film industry’s prejudicial actions without interfering with artists’ right to express their views. Part I reviews the regulatory history of the broadcast, cable, and film industries. This section also uses statistics to explain why legislative action is necessary to promote nonstereotypical appearances of minorities in films and employment of minorities in front of and behind the camera. Part II examines the constitutionality of a content-based regulation that requires casting calls to be race neutral. This section argues that casting calls with a preference for actors or actresses of a particular race constitute unlawful speech under Title VII 2000(e), and similar to obscene and commercial speech, these discriminatory employment advertisements deserve minimal or no protection under the First Amendment. Thus, even if no legislation was passed, Hollywood’s current hiring practices are illegal. Part III argues that even if the court applies strict scrutiny, the regulation is constitutional because eliminating discriminatory casting calls serves the compelling government interests of (a) protecting a minority’s right to earn a living in Hollywood and (b) shielding America’s children from developing implicit biases after constant exposure to the discriminatory portrayals of minorities on screen.