The Left’s Discrimination Double Standard: Artistic Freedom for Me, But Not for Thee

By Jeremy Tedesco | December 13, 2016 | 9:22am EST
(AP Photo/Alex Brandon)

Dr. Martin Luther King, Jr., in his renowned and timeless Letter from a Birmingham Jail, identified one of the hallmarks of injustice: culturally and politically powerful groups saying others must comply with a law that they are unwilling to make binding on themselves. Today’s purveyors of injustice? Progressive leftists who demand that everyone’s speech—except their own—be coerced by nondiscrimination laws.

Small business owners whose religious convictions lead them to conscientiously object to promoting same-sex wedding ceremonies know this all too well. Just ask Carl and Angel Larsen, owners of Telescope Media Group, a video production company in Minnesota. The Larsens aren’t in the wedding industry yet, but they want to start producing films telling stories that celebrate marriages between one man and one woman.

But the Larsens can’t tell the stories they want to tell because Minnesota says its nondiscrimination law, which includes sexual orientation as a protected class, requires them to also tell stories celebrating same-sex marriages. Put simply, the state is telling the Larsens that they must violate their deepest-held religious convictions about marriage as a condition to exercising their fundamental free speech rights. Rather than subject themselves to punishment under the law (which could include substantial fines and damages and up to 90 days in jail), the Larsens filed a pre-enforcement lawsuit to protect their constitutional freedom to speak only the message about marriage they want to speak.

Leftists will predictably decry the Larsens. They will bemoan their alleged flouting of the law and trot out catchy slogans like “religion is not a license to discriminate” and “if you open a business you must serve everyone equally” to reinforce their message that compliance with nondiscrimination laws is mandatory, not optional. But these speech-coercing laws and shame-inducing slogans are for you and me. Not for them.

Examples of this double standard abound. For example, fashion designer Sophie Theallet recently invoked her right to “artistic freedom” as a “family-owned company” in announcing her refusal to design clothes for the next first lady, Melania Trump. Theallet does not want her creative talents to promote or be associated with political views with which she disagrees.

Leftists praised Ms. Theallet’s stand, yet some nondiscrimination laws—including the one in D.C., where Mrs. Trump will have need for many beautiful clothing ensembles—bar discrimination based on political affiliation, i.e., “belonging to or supporting a political party.” So why isn’t Ms. Theallet being lambasted for brazenly announcing her intention to flout D.C.’s nondiscrimination law? Because government-mandated orthodoxy is apparently for the little people, not those who agree with the leftist cultural and political powerbrokers.

But as double standards go, the real whopper comes to us from Disney and the American Broadcasting Corporation, which Disney owns. Before diving into Disney’s stunning hypocrisy, recall that the company made headlines earlier this year by opposing a Georgia bill that (gasp) protected the right of ministers to decline to solemnize same-sex marriages and the right of religious organizations to ensure that their facilities are not used for same-sex wedding ceremonies. Apparently “triggered” by Georgia’s razor-thin protections for ministers and religious institutions that object to same-sex marriage, Disney vowed to “take [its] business elsewhere should any legislation allowing discriminatory practices be signed into state law.”  Sadly, Georgia’s governor caved to this leftist grandstanding and vetoed the bill.

But just a few years before beating its social-justice-warrior chest over compliance with nondiscrimination laws in Georgia, Disney’s company ABC found itself facing a lawsuit charging it with engaging in race discrimination in casting for the popular “The Bachelor” and “The Bachelorette” reality television series. The case, Claybrooks v. American Broadcasting Companies, was brought by two African Americans who unsuccessfully applied to be on “The Bachelor.” It involved a claim of race discrimination under 42 U.S.C. § 1981, a federal nondiscrimination law that is the legislative cousin of the 13th and 14th amendments.

The case involved some ugly facts. In 24 iterations of the shows, ABC had always selected a white bachelor or bachelorette. Further, ABC rarely selected non-white “suitors,” and even when they did, those suitors were consistently eliminated early. Even worse for ABC, the plaintiffs alleged that the shows’ producers stated in news articles that they feared “potential controversy stemming from an interracial romance,” which they believed would alienate their predominately white audience. For ABC and Disney, everyone had a chance at the final rose ceremony except African Americans. It seems ABC and Disney weren’t in the game for the right reasons. The plaintiffs then hit ABC right between the eyes for this apparent discrimination:

“With such a massive viewership, Defendants have the opportunity to help normalize minority and interracial relationships by showcasing them to mainstream America on The Bachelor and The Bachelorette. Instead, by discriminatorily refusing to cast people of color in the lead roles (as well as in the role of suitor), Defendants play into the perceived racial fears of their audience and perpetuate outdated racial taboos.”

ABC did not cave. Instead, it alleged that it had a First Amendment right to control the content of its creative film productions, including casting decisions, because of their impact on the shows’ message. Put another way, ABC asserted that the First Amendment protected its freedom not to promote a message of social acceptance for interracial relationships through “The Bachelor” and “The Bachelorette.”

A federal judge agreed and dismissed the plaintiffs’ lawsuit. The judge ruled that forcing ABC to hire non-white bachelors or bachelorettes would change the shows’ message in a manner the First Amendment forbids. The shows’ producers had the right to craft and control their message, which included casting decisions.

Carl and Angel Larsen find themselves in almost exactly the same position as ABC in Claybrooks: under threat of a nondiscrimination law’s enforcement if they exercise their artistic freedom. In stark contrast, the Larsens would never object to promoting interracial marriages through their film services, while ABC waged First Amendment warfare to secure its right to avoid promoting such relationships through its shows.

The Left’s hypocrisy truly knows no bounds. They endlessly malign people like the Larsens, who simply want to avoid promoting same-sex marriages because of their religious belief that marriage is between one man and one woman, by comparing them to racists who object to interracial marriage. Yet when Disney’s ABC raised a First Amendment defense to casting non-whites on “The Bachelor” or “The Bachelorette” because it did not want to promote a message of tolerance for interracial relationships, what did the Left say? Nothing.

Let’s be clear. Nondiscrimination laws are not unjust. In fact, they serve important and laudable purposes. What is unjust is how the Left has twisted these laws into speech-coercing tools for those who disagree with their political and cultural goals, while exempting themselves from similar treatment. Such an unjust approach to applying the law has no place in a free society.

Jeremy Tedesco is senior counsel with Alliance Defending Freedom and represents the Larsens and Telescope Media Group in their lawsuit against Minnesota officials over their application of the state’s Human Rights Act.


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