Disney, Media Giants Testing Free Speech Shield in Bias Cases

Walt Disney Co. and other employers in the entertainment and media industries are testing a First Amendment defense in court to escape employment discrimination claims, arguing that certain workplace decisions are tied to their right to control their brand message.

These cases are pushing federal courts to examine the boundaries of the First Amendment, which traditionally protects expressive entities, as employers use it to justify their decisions related to artistic expression that are based on protected characteristics like race, gender, and religion.

“Currently, the case law is very narrow and is likely to remain that way with the focus on how artistic decisions need to be respected, a theme that goes back decades,” said Michael Selmi, a law professor at Arizona State University who specializes in employment discrimination and civil rights. “I do not anticipate that employers more generally will receive any protection from claims of discrimination based on the First Amendment defense.”

But unique facts in litigation may influence how courts assess the reach of this defense, particularly in instances where plaintiffs invoked a state law that has broader or unique protections, he said.

As the case law develops further, employers may avoid future liability risks by applying internal policies addressing worker conduct that may affect their expressive goal consistently and uniformly in a non-discriminatory manner.

Media and entertainment industry companies must be thoughtful and document their legitimate business reasons before taking any adverse employment action, said Tara Toevs Carolan, a labor and employment partner at Tarter Krinsky & Drogin LLP.

Emerging Disputes

In February, former “The Mandalorian” star Gina Carano accused Walt Disney Co. of firing her for voicing her social and political views in social media posts that the company deemed to be antisemitic and transphobic. It’s among a handful of new cases testing the rights of expressive entities to control their brand and artistic message.

The suit—funded by Elon Musk—may also test the applicability of a California statute, which, unlike federal anti-bias law, protects workers’ rights to be politically active outside of their workplace without retaliation from their employer.

Employees don’t generally enjoy protections for off-work speech, Selmi said. But there’s a patchwork of laws governing an employer’s ability to restrict or regulate employee off-duty conduct.

A California federal judge recently denied Disney’s bid for the US Court of Appeals for the Ninth Circuit to quickly review whether the First Amendment protects its ability as an artistic entity to make casting decisions by removing someone whose speech allegedly harmed its expression. This isn’t purely a question of law, and granting interlocutory review wouldn’t advance the case toward termination, the judge said.

The media and entertainment conglomerate’s request cited recent cases, including Green v. Miss United States of America and Moore v. Hadestown Broadway Ltd. Liability Co., which held that expressive entities have the right to control their public message, including the choice of individuals who represent them.

Another California federal judge separately rejected CBS Entertainment, CBS Studios, and Paramount Global’s request to toss a lawsuit accusing them of unlawfully denying a White heterosexual man career opportunities because of his race, sex, and sexual orientation.

The suit accused the companies of illegally giving hiring and promotion preference to individuals who are non-White, LGBTQ+, or female and lack his level of experience. CBS countered that it has a First Amendment right to select writers whose work shapes its artistic enterprise.

‘Slippery Slope’

Cases outside of the artistic expression context also highlight the intricate interplay between free speech and civil rights advocacy, legal scholars have told Bloomberg Law.

A broad judicial endorsement of the First Amendment defense protecting actions based on protected characteristics could potentially be weaponized to undercut civil rights goals that support historically underrepresented communities, they said.

The US Court of Appeals for the Eleventh Circuit expressed this view in a now-settled case blocking a grant contest for Black women entrepreneurs it found to be in violation of Section 1981 of the 1866 Civil Rights Act, which bans race discrimination in the making of contracts.

Venture capital fund Fearless Fund Management LLC argued that its grant contest isn’t a contract, but rather charitable giving that’s protected expressive conduct highlighting the importance of Black-women-owned businesses to the economy. The grant program went beyond legally expressive conduct because it’s racially exclusionary, the court said, likening it to a White business owner’s decision to fire all of his Black employees, which would be equally unacceptable.

“I agree that it’s a slippery slope in terms of how” courts are going to analyze and determine under what circumstances they’re going to allow the First Amendment defense in the artistic expression context, Carolan said. “In terms of whether we’re going to see it outside of the media and entertainment industries will be interesting to watch.”

Selmi said a non-expressive entity that “seeks to defend discrimination claims by arguing it has a First Amendment right to discriminate is almost certain to lose that argument.”

“The existing case law has carved out a very limited First Amendment defense against discrimination claims. Keeping the doctrine confined to inherently expressive activities is likely the best way to mediate” any potential conflict between free speech protections for expressive entities and employees’ rights to non-discriminatory workplaces, he said.

As workplace discrimination claims regarding polarizing issues become more common in the digital age, companies generally face new challenges in managing their brand, said Neil Rosenbaum, a veteran litigator at Clark Hill PLC who specializes in First Amendment law.

“I think it’s really public relations and brand protection as much as anything else,” he said. It helps companies “distance themselves” from controversial figures who might undermine their artistic message or values, Rosenbaum said.