Cable Giant Charter Is Using Hamilton as a Defense for Exclusionary Discrimination
An article title came up on The Hollywood Reporter today called “White Actors Suing Hamilton for Discrimination? Supreme Court Hears Warning” and it instantly grabbed my attention. The issue of Hamilton being possibly discriminatory against white actors is a narrative that has been brought up from time to time. However, as I began reading the article, the headline and the piece itself didn’t exactly sync up. Here’s why.
Charter Communications, one of the biggest cable operators in the nation, is being sued by Byron Allen’s Entertainment Studios Network over its refusal to uphold its promise to carry shows from the Network. Byron Allen is a Black businessman and the founder, owner, chairman, and chief executive officer of the U.S. television production company Entertainment Studios.
Charter is facing “$10 billion in claimed damages, the plaintiff has survived both a motion to dismiss and subsequent review from the Ninth Circuit.” Entertainment Studios’ claim of racial animus being the root of this failed promise has been sustained despite all Charter’s attempts to say otherwise.
So what exactly is the connection between his lawsuit against Charter and the Broadway hit sensation? Charter’s main defense is the First Amendment because, of course, they say that they have the right to include racial considerations among the factors in making editorial determinations as to what programming to carry on their network.
This has been rejected by both U.S. District Court Judge George H. Wu and the Ninth Circuit, who made the following statement regarding this defense:
“Our analysis here is limited to cases of discriminatory contracting based on a plaintiff’s race, not contracting based on a plaintiff’s viewpoint. A bookstore’s choice of which books to stock on its shelves, or a theater owner’s decision about which productions to stage, or a cable operator’s selection of certain perspectives to air, are decisions based on content, and not necessarily on the racial identities of the parties with which they contract (or refuse to contract). Here, by contrast, Plaintiffs plausibly pleaded that Charter refused to contract with Entertainment Studios due to racial animus, and they must ultimately prove that Entertainment Studios’ racial identity, separate and apart from the underlying content of its programming, was a factor in Charter’s decision.”
In their petition to the highest court in the land, Charter is saying this a “false dichotomy” because “Although decisions about content are often unrelated to the characteristics of the speaker (and generally should be), clearly that is not always the case when it comes to editorial decisions in circumstances where race and content are related,” states the petition.
Charter brings up that Invisible Man and The Color Purple would be very different works if written by white men (you don’t say) and then brings in Hamilton:
“The musical Hamilton is notable for its creator’s decision to cast exclusively minority actors as the Founding Fathers. A refusal to contract with a white actor to play George Washington cannot be made an antidiscrimination violation without profoundly undermining First Amendment values.”
Now, where is that “I have to laugh” Lady Gaga gif?
Ahh thank you.
So Charter is arguing that they have the editorial right as a network to discriminate against Black networks because of the First Amendment, and when the judges disagreed with them, their defense was “but Black people do their own Black-y things and Hamilton made the creative decision to have non-white actors in most of their roles so what’s the dif?”
Can I get the gif one more time?
Hamilton isn’t excluding white people from the casting. First of all, there is King George and members of the ensemble, but fundamentally, the non-white cast was chosen to reflect the people who have been erased from history playing the founding fathers who participated in their marginalization.
Agree with that choice or not, it is being done with intent to highlight and give an opportunity to actors who have historically had limited opportunities to be in roles like this. I love musicals, but they are still really white, and Hamilton is a rare exception to that.
Using that musical as a red herring is so frustrating because it is legitimately using something meant to be inclusive to protect something that is attempting to exclude. I have to laugh.
Charter also brings up Hurley v. Irish American Gay Group of Boston, which said that parade organizers in Boston “couldn’t be compelled to include the participation of a gay group,” a defense that has been used often by companies and shows when called out for not being inclusive, like how The Bachelor and The Bachelorette never went to non-white individuals.
Charter concludes by saying, “[I]t would allow even an objectively terrible white actor to bring an action for being denied a part in Hamilton even if factors other than race would provide an obvious explanation for why the actor would not get a part as a Founding Father in the minority cast of Hamilton (or in any kind of cast for any other play). Left in place, the Ninth Circuit’s reasoning will have a devastating chilling effect on the free speech rights of all speech platforms—from magazines, to websites, to bookstores and theaters—that select and promote speech originally produced by others.”
Using Hamilton and what it has meant for Black and Brown audiences as a justification for a flimsy First Amendment argument is frustrating, because once again, it’s an attempt to take something made by a marginalized group, in response to their marginalization, and use it against other people of color.
The Hollywood Reporter starting off its article with “Is Hamilton creator Lin-Manuel Miranda at risk for being sued by only casting African-Americans in the role of George Washington in his award-winning musical? According to a new petition before the Supreme Court, he very well might be” just glosses over the fact that Charter’s argument to that effect is in bad faith in the first place.
(via The Hollywood Reporter, image: Theo Wargo/Getty Images)
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