Over the past few years, the future of studios’ ability to assert First Amendment protections in casting decisions appeared to be compromised thanks to a couple of high-profile decisions from courts overseeing discrimination lawsuits filed by actors. The most recent came last year when a court rebuffed Disney’s bid to dismiss a case over Gina Carano’s firing from The Mandalorian in a ruling that explored whether free speech allows private companies to fire employees who publicly clash with their values. Before that was an order by another court advancing a lawsuit from Brent Sexton against Apple Studios, finding that the company may have discriminated against him by pulling a deal for him to star at Andrew Johnson in Manhunt for refusing the COVID-19 vaccine.
But on Friday, California’s Second Appellate District reversed that ruling under a California law that allows for the early dismissal of claims intended to chill free speech. The decision shores up the understanding in most cases that casting choices can constitute speech and are therefore subject to some First Amendment protections. “Apple’s action was not some minor choice about using nails versus screws to build a set,” the order stated. “Casting Johnson was a significant part of retelling a transforming American disaster.”
In 2022, Apple Studios began preproduction work for Manhunt, a miniseries following the government’s search for John Wilkes Booth after Abraham Lincoln was assassinated. With transmission of COVID-19 in full swing at the time, the company elected to issue a blanket mandatory vaccination policy. Among the factors that went into that decision was the belief that fully vaccinated productions were at decreased risk of being suspended and that the series was slated to shoot in Georgia, which imposed less restrictive virus measures, meaning cast and crew faced an increased risk of exposure.
This was a problem for Sexton, best known for his roles in Bosch, The Killing and Deadwood who was offered a $595,000 deal for the role of Johnson. He accepted but asked for a medical exemption, citing a prior health condition that his doctor said made it dangerous for him to receive the vaccine. Apple rejected the request and pulled the offer. Sexton later sued, claiming that the way Apple, which didn’t respond to requests for comment, implemented its vaccination policy was unconstitutional.
Apple moved to dismiss the lawsuit under California’s anti-SLAPP stutate, which is intended to protect free speech against frivolous lawsuits on matters of public importance, but in a surprising decision at the time, the court sided with Sexton. It marked one of the few rulings advancing a complaint from an actor who took issue with a studio’s refusal to provide accommodations for refusing to receive the COVID-19 vaccine.
In Friday’s order, the panel stressed that the lawsuit implicated public issues. “Apple’s decision to join the industry-wide agreement about vaccinations, and Apple’s vaccine condition on Sexton’s offer, contributed to public discussion of vaccination policy,” wrote Associate Justice John Shepard Wiley Jr. “In the face of a public debate over vaccination policy, Apple took a stand: it made vaccines mandatory on this set. Apple charted a path through the minefield and staked out a rigorous position.”
The justices also pointed to the show’s depiction of Johnson’s legacy, explaining that representations of the past in historical films, like Birth of a Nation or Gone With the Wind, can “pose potent current public issues.” The reasoning keeps in line with other cases at the intersection of the First Amendment and casting choices. This includes a lawsuit from writer and producer Stanley Wilson, who was fired by CNN for plagiarism. In that case, the California Supreme Court found that “a television producer’s decision about whom to cast in a program can constitute part of the message conveyed.” The court concluded in another lawsuit against CBS over an episode of CSI: Crime Scene Investigation that “[t]he creative process must be unfettered, especially because it can often take strange turns.” It added, “We must not permit juries to dissect the creative process in order to determine what was necessary to achieve the final product and what was not, and to impose liability.”
In a statement, Scott Street, a lawyer for Sexton, said the ruling “disregards the law in multiple ways” and that the Supreme Court should review the case. He added that the “anti-SLAPP statute was not enacted to protect big companies from its employees when they sue to challenge discrimination.”
In another court, this one federal, Carano successfully argued that her discrimination lawsuit against Disney and Lucasfilm shouldn’t be dismissed because the companies can’t claim First Amendment protections. While the studios engage in activities related to free speech, including the creation of The Mandalorian, U.S. District Judge Sherilyn Peace Garnett found that they don’t necessarily enjoy protections related to “expressive association,” which shields the right to join — or in this case, not join — with individuals who may promote certain perspectives.
Disney argued there’s a First Amendment right to choose employees who properly convey its values, even when those choices would otherwise violate state anti-discrimination laws. It stressed that the state can’t force employers engaged in “expressive activity,” — in Disney’s case movies and TV shows — to communicate its message through speakers like Carano who allegedly impair its ability to properly express its values, which it said include respect, integrity and inclusion. The First Amendment, it claimed, entitles it to protect its speech in the Star Wars series from association with views that it and many viewers considered offensive and contrary to its message.
There’s no federal anti-SLAPP statute, but Disney still sought an immediate appeal of the order under its belief that the lawsuit should’ve been dismissed. That request was turned down, with a trial slated to start in September.
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