Back to the Drawing Board! Legislating Hollywood
| Publication year | 2019 |
Back to the Drawing Board! Legislating Hollywood
Christina Shu Jien Chong
University of California, Irvine School of Law, cchong@law.uci.edu
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The United States Department of Justice "contended that equal employment opportunity in the broadcast industry could 'contribute significantly toward reducing . . . discrimination in other industries' because of the 'enormous impact . . . television . . . [has] upon American life.'"2 Courts have also recognized that "communities . . . ' [must] take an active interest in the . . . quality of [television programming because television] has a vast impact on their lives and the lives of their children.'"3 Unfortunately, Hollywood continues to promote an insular culture that excludes minorities from influential behind-the-camera and on-screen positions.4
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Although the government established agencies, such as the Federal Communications Commission (FCC), to ensure that networks and stations operate in the public's interest, my research revealed that minorities are still vastly underrepresented in the film industry.5 My research study confirmed that minority representation remained nearly stagnant between 2010 and 2014 and that the white majority continued to dominate as directors, casting directors, screenwriters, actors, and actresses.6 These results suggest that America's existing regulatory schemes are unable to break the cycle of bias among film creators and that the lack of diverse perspectives in Hollywood minimizes the number of casting calls seeking non-white talent and perpetuates the inaccurate, stereotypical portrayal of minorities.7 As a result, society's members develop negative implicit biases about minorities that strengthen the bamboo ceiling in the film industry and prevented people of color from succeeding as professional artists.8
The courts believe that "communities throughout the . . . country . . . must bear [the] final responsibility for the quality and adequacy of television service" and that members of the "public [should not] feel . . . [that] they are unduly interfering in the private business affairs of others" because the public has a direct interest in television programming.9 However, recent decisions, such as Claybrooks v. ABC and Adarand Constructors, Inc. v. Pena, suggest that courts sometimes fail to recognize the public's desire to promote antidiscrimination in employment and diversity, especially when these interests conflict with an individual's freedom of expression.10
This article urges the public to hold Congress and the judiciary responsible for ensuring children are exposed to a diverse portrayal of minority experiences on screen and providing minorities with the equal opportunity to earn a reasonable living in entertainment—
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America's most influential industry. Our judges need more direction from Congress to establish a precedent that properly balances our country's First Amendment and antidiscrimination values because, currently, the courts are failing to stop discrimination in Hollywood despite Congress's passage of Title VII and § 1981.11 Entertainment leaders also need congressional guidance because the industry has not eliminated its improper practices through self-regulation.12 Thus, this article presents a legislative solution that can reduce the film industry's prejudicial actions without interfering with artists' right to express their views.
Part I reviews the regulatory history of the broadcast, cable, and film industries.13 This section also uses statistics to explain why legislative action is necessary to promote nonstereotypical appearances of minorities in films and employment of minorities in front of and behind the camera.14 Part II examines the constitutionality of a content-based regulation that requires casting calls to be race neutral.15 This section argues that casting calls with a preference for actors or actresses of a particular race constitute unlawful speech under Title VII, and similar to obscene and commercial speech, these discriminatory employment advertisements deserve minimal or no protection under the First Amendment.16 Thus, even if no legislation is passed, Hollywood's current hiring practices are illegal. Part III argues that even if the Supreme Court of the United States applies strict scrutiny, the regulation is constitutional because eliminating discriminatory casting calls serves the compelling government interests of (1) protecting a minority's right to earn a living in Hollywood and (2) shielding America's children from developing implicit biases after constant exposure to the discriminatory portrayals of minorities on screen.17
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I. The Broadcast, Cable, and Film Industries
Although free speech absolutists claim that regulating the entertainment industry violates the First Amendment, past regulatory actions by the legislative and judicial branches suggest otherwise.18 This section provides a brief overview and history of the regulations in the broadcast and cable industries that are relevant to this article and explains why legislative action is necessary.
A. An Overview of the Broadcast and Cable Industries
Broadcast television (TV), also known as over-the-air broadcasting or terrestrial TV, began in 1927 and is an industry where networks deliver programs to the public for free.19 The networks transmit TV signals by radio waves to a receiver, such as an antenna.20 Because the radio frequency spectrum is limited, most governments require a station license to prevent networks from broadcasting over each other's airwaves.21 Broadcast TV was the only method of TV delivery until cable TV was popularized in the 1950s.22 The major networks in the United States are ABC, CBS, Fox, and NBC.23
Unlike broadcast TV, cable TV is a system where programs are delivered through coaxial cables to individual receivers of paying subscribers.24 Cable operators, such as AT&T and Comcast, deliver programming from four sources: (1) retransmission of broadcast
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stations; (2) programs purchased from cable networks, such as ESPN, Fox News, USA, TBS, and Disney; (3) programs created by the cable operator itself; and (4) programs on third-party and government-owned access channels.25 The program sources for each network vary but are usually produced by independent companies, such as Viacom, CBS, NBCUniversal, Time Warner, Twenty-First Century Fox, Disney, and British Broadcasting Corporation Worldwide.26
B. Regulation of the Broadcast Industry
Early regulation of the entertainment industry suggests that Congress did not view the freedom of speech as an unlimited right.27 Instead, Congress feared that without governmental control "the public interest might be subordinated to monopolistic domination in the broadcasting field."28 Similarly, the Supreme Court believes that the medium of broadcast has the "special characteristic" of scarcity, which "calls for more exacting regulation."29 In recent years, over-the-air broadcasting has transitioned to delivering TV signals via cable or satellite, but the government still regulates the broadcast industry to ensure efficiency and diversity.30 This section discusses the powers of the FCC and how its history suggests that the entertainment industry is subject to regulation.
1. The Radio Act of 1927 and the Communications Act of 1934
To prevent chaos over radio frequencies, the Radio Act of 1927 created a unified and comprehensive regulatory system for the broadcast industry and the Federal Radio Commission (FRC).31 The Radio Act of 1927 gave the FRC the power to deny licenses to
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stations that made exclusivity agreements with networks, which is an example of Congress approving indirect regulation of private dealings.32
TV became available in the late 1920s,33 but Congress did not replace the FRC with the FCC until the Communications Act of 1934.34 The Communications Act authorizes the FCC to regulate the radio and TV industries and requires the FCC to grant broadcasting licenses that are in the "public convenience, interest, or necessity."35
Although the FCC cannot edit broadcasts that it deems inappropriate, it can review the content of past and future broadcasts through the license-renewal36 and license-granting processes.37 When granting initial licenses, the FCC can forecast the station's performance, but when analyzing renewals, the FCC must focus on the broadcaster's past actions.38 If a broadcaster failed to promote operations and programs that furthered the public interest of its listeners then the FCC can deny the broadcaster's renewal application.39
Currently, the FCC's licensing power is broad and applies to both noncommercial and commercial broadcasters40 ; its powers are not limited to the engineering and technical aspects of regulating frequencies, hours, and licensees.41 For example, the FCC does not have unfettered censorship power over broadcast communications,42 but it can regulate the broadcast of obscene, indecent, or profane language 43 Congress's decision to provide vast powers to the FCC
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suggests an effort to regulate an industry that was dominated by the majority and excluded minority viewpoints.
2. The FCC's Employment and Diversity Goals
In addition to using its licensing powers to further the public's interest, the FCC promotes three basic concepts in its regulatory decisions to encourage diversity: (1) nondiscrimination in employment, (2) affirmative action, and (3) proper discovery of community problems.44 Despite the FCC's explicit efforts to encourage diversity, Hollywood still remains dominated by the majority,45 which further supports the idea that legislative attention is necessary. This section discusses the three FCC diversity goals and explains how the FCC's efforts, although...
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