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Eugene Volokh

Theater Producers Have First Amendment Right to Choose White Actor Instead of Black

From Moore v. Hadestown Broadway Ltd. Liab. Co., decided Thursday by Judge Loretta Preska (S.D.N.Y.):

Plaintiff Kim Moore is a black woman who works as an actress. Defendant is a company that produces and stages "Hadestown," a musical that runs on Broadway …. On or about January 30, 2020, Defendant hired Plaintiff to perform as an actress in its production of the Musical. Plaintiff played the role of "Worker #1" as part of the Musical's "Workers Chorus," as well as other parts in the Musical. In the Musical, the Workers Chorus consists of several actors who perform their roles as "Workers" within the Workers Chorus.

As of November 2021, the Workers Chorus consisted exclusively of black cast members, including Plaintiff. As a result, on November 23, 2021, David Neumann, a choreographer and supervisor for Defendant, emailed the entire cast of the Musical to apologize for the fact that the Musical was conveying a "white savior story" due to the exclusively black Workers Chorus.

In his email, Mr. Neumann stated that he, director Rachel Chavkin, and Liam Robinson, another Hadestown executive, were "commit[ted] to open dialogue regarding ongoing casting decisions and the ramifications of what that looks like in our particular story." Specifically, Neumann noted that "certain arrangements of actors on stage (a white Orpheus, a white Hades, and a Worker Chorus of all Black performers)" may have told "an unintended and harmful 'white savior' story." Neumann wrote that, although he, Chavkin, and Robinson did not "view Orpheus as a white savior" in the Musical and "[t]he 'text' of Hadestown may not speak about race," the particular arrangement of the Hadestown cast on stage had nonetheless expressed a "white savior story" because the actors are the Musical's "storytellers" who "become[ ] the story" on stage each performance through their selves, voices, and bodies….

On or about November 24, 2021—the day after Mr. Neumann emailed the entire cast of the Musical to apologize for the Musical's "white savior story"—Timothy Reid, a supervisor and dance caption for the Musical, informed Plaintiff that Defendant was seeking to replace her in the cast with a white woman.

If the facts were as alleged, the court concluded, that was race discrimination, but it was protected by the First Amendment; seems quite correct to me:

A live theater performance, such as the Musical produced and staged by Defendant, constitutes expressive and artistic speech that qualifies for First Amendment protection.,,, The sequence of events Plaintiff describes in her Amended Complaint, with context supplied from Mr. Neumann's emails, demonstrates that Defendant was making its casting decisions with an eye toward how the racial composition of the Musical's cast affected the story Hadestown was telling on-stage. Defendant's executives were aware that the arrangements of actors on stage expressed a message that departed both from the text of the Musical's script and from what Defendant intended to express when it staged the Musical and thereafter sought to change those casting arrangements to change the unintended expression. This clearly implicates Defendant's exercise of its creative expression and artistic decisions….

Deciding whom to cast in a theatrical performance is, of course, an employment decision. Plaintiff argues in her opposition brief that the First Amendment does not affect her claims because employment discrimination laws like the ones pursuant to which she brings this suit "regulate conduct … not speech." …

[But t]he decisions Hadestown makes about whom to cast for which roles—its employment decisions—are inherently expressive because they are tied to the story it intends to tell and its creative expression…. Regulating Defendant's casting decisions thus imposes more than an incidental burden on its speech and implicates its constitutionally protected speech….

[T]he First Amendment forbids the government from "tell[ing] a newspaper in advance what it can print and what it cannot" or "forc[ing] [it] to respond to views that others may hold," and "forc[ing] all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe." Under the same principles, the First Amendment likewise forbids compelling a theater company to stage a performance in a manner that expresses a story the theater company does not wish to tell….

The court concluded, though, that plaintiff could go forward with her separate claim that she was fired in retaliation for objecting to the defendant's actions:

Although the Court holds … that Defendant's casting decisions are protected by the First Amendment, that protection applies only insofar as Defendant made such casting decisions to tailor the Musical's message. Defendant's casting decisions can only be "inherently expressive," such that they warrant First Amendment protection, if Defendant made them specifically to change the story the Musical conveyed on stage.

Plaintiff's bases her retaliation claims upon her allegations that Defendant terminated her on December 5, 2021, in response to the complaints of racial discrimination she had made in the two weeks prior. There is nothing Plaintiff alleges in her Amended Complaint, or anything apparent on the face of Mr. Neumann's emails, that would lead the Court to conclude that Defendant's alleged decision to terminate Plaintiff for engaging in such protected activity was related in any way to the "inherently expressive" artistic decisions it makes with respect the cast it puts on stage. Instead, the facts Plaintiff pleads to support her retaliation claims amount only to allegations that Hadestown chose to fire an employee who had lodged a complaint to its human resources employee. Such an alleged retaliatory firing is in no way related to the artistic storytelling that confers certain First Amendment protections upon Defendant….

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