CBS filed a motion Thursday to throw out a lawsuit challenging its diversity hiring practices for writers on the show “SEAL Team,” arguing that it has a First Amendment right to hire who it wants.
Brian Beneker, the longtime script coordinator on the show, sued in February, arguing that he had been repeatedly passed over for writing jobs because he is a straight, white man.
Beneker has the backing of America First Legal, which is run by Stephen Miller, an adviser to former President Trump. The organization has sought to challenge diversity, equity and inclusion programs — which it terms “anti-white discrimination” — in the entertainment industry and elsewhere in corporate America.
In its motion, CBS argued that it has a constitutional right to decide who will speak on its behalf, which supersedes anti-discrimination law.
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“CBS’s alleged decision to prioritize diversity in its writers’ rooms is protected by the First Amendment because — as Beneker’s complaint recognizes — who writes for a creative production like ‘SEAL Team’ affects the stories that ‘SEAL Team’ tells,” wrote Molly Lens, a partner at O’Melveny & Myers. “So limiting CBS’s ability to select the writers of its choice — as Beneker seeks to do here — unconstitutionally impairs CBS’s ability to shape its message.”
In a similar case, Disney argued last month that it had a First Amendment right to fire “Mandalorian” actor Gina Carano after she made a post on social media that allegedly trivialized the Holocaust.
Disney and CBS each cite the same cases — Boy Scouts of America v. Dale and Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, among others — for the proposition that the government cannot force a private entity to hire someone to express views it disagrees with.
Lens is also among the attorneys representing Disney in the Carano case.
In both cases, the defense cited a race discrimination lawsuit filed against ABC in 2011 over its failure to cast a Black man in “The Bachelor.” The judge threw out that case, citing the producers’ First Amendment right to make their own casting decisions.
In 2020, CBS set a goal of having Black, Indigenous, and People of Color (BIPOC) representation reach 40% in its writers rooms in 2021-22 and 50% in 2022-23.
A report by the Writers Guild of America West found that BIPOC writers made up 37% of overall TV series staffing in 2020, up from 13.6% a decade earlier.
Beneker’s lawsuit alleged that CBS’s goal amounted to an illegal hiring quota. The suit alleged that white, heterosexual men needed “extra qualifications” to be hired as staff writers, such as military experience or previous writing credits, compared to nonwhite, female or LGBTQ writers, who did not need such qualifications.
The suit alleged that the hiring policy violates the Civil Rights Act of 1964. The suit seeks an order barring CBS from implementing the policy, and requiring the show to hire Beneker as a producer.
CBS does not claim that the First Amendment makes it immune from anti-discrimination laws. But it does contend that the First Amendment prevails when hiring for positions — like writers or actors — that involve expressive conduct.
“The First Amendment rule of speaker’s autonomy gives CBS, and CBS alone, the right to decide what stories to tell in its television programming,” Lens wrote. “And it has the corresponding right to select which writers are best suited to tell those stories.”
