BACK TO THE DRAWING BOARD: LEGISLATING HOLLYWOOD!
A Solution to the Lack of Diverse Programming and Employment Discrimination
in Hollywood that Compiles with the First Amendment.
Christina Shu Jien Chong
Assistant Professor, University of San Francisco
The U.S. Department of Justice “contended that equal employment opportunity in the broadcast industry could ‘contribute significantly toward reducing and ending discrimination in other industries’ because of the ‘enormous impact…television [has] upon American life.’” Courts have also recognized that “communities ‘owe a duty to…take an active interest in the scope and quality of [television programming because these services] have a vast impact on their lives and the lives of their children.’” Unfortunately, even though the government acknowledged that non-discriminatory hiring and diverse programming is important in the film industry, Hollywood continues to promote an insular culture that excludes minorities from influential behind-the-camera and on-screen positions.
Although the government established agencies, such as the FCC, to ensure networks and stations operate in the public’s interest, my recent study revealed that minorities are still underrepresented in film. The results confirmed that minority representation remained nearly stagnant between 2010 and 2014; and the White majority continued to dominate the industry. The lack of diverse perspectives in Hollywood minimizes the number of casting calls seeking non-White talent and perpetuates inaccurate, stereotypical portrayal of minorities. As a result, society’s members develop negative implicit biases about minorities that strengthen the bamboo ceiling and prevent people of color from succeeding as artists.
The courts believe that “individual communities throughout the country…must bear final responsibility for the quality…of television service” and that members of the “public should not feel they are unduly interfering in the private business affairs of others” because the public’s interest in the television programming is direct. However, recent decisions, such as Claybrooks v. ABC and Adarand Constructors v. Pena, suggest that courts sometimes fail to recognize the public’s desire to promote anti-discrimination and diversity, especially if these interests conflict with an individual’s freedom of expression.
This article urges the public to hold Congress and the judiciary responsible for creating a film industry that ensures children are exposed to a diverse portrayal of minority experiences and that provides minorities with the equal opportunity to earn a reasonable living in entertainment, America’s most influential industry. Our judges need direction from Congress to establish a precedent that properly balances our country’s First Amendment and anti-discrimination values because, currently, the courts have failed to stop discrimination in Hollywood despite Congress’s passage of Title VII and Section 1981. Entertainment leaders also need congressional guidance because the industry has not eliminated its improper practices through self-regulation. Thus, this article presents a legislative solution that can reduce the film industry’s prejudicial actions without interfering with an artist’s right to express his or her views.
Part I reviews the regulatory history of the broadcast, cable, and film industries. This section also uses statistics to explain why legislative action is necessary to promote non-stereotypical appearances and employment of minorities. Part II examines the constitutionality of a content-based regulation that requires casting calls to be race neutral. This section makes two arguments. First, casting calls with a preference for actors or actresses of a particular race constitute illegal speech under Title VII 2000(e); and, similar to obscene and commercial speech, these discriminatory employment advertisements deserve no protection under the First Amendment. Second, if the court applies strict scrutiny, the regulation is constitutional because eliminating discriminatory casting calls serves the compelling government interests of (a) protecting a minority’s right to earn a living in Hollywood and (b) shielding America’s children from developing implicit biases influenced by the discriminatory portrayals of minorities. Part III discusses how Congress can use its commerce clause and spending powers to promote people of color by funding projects and exhibitions of films featuring minority directors, screenwriters, actors, and actresses. Finally, Part IV discredits any statutory construction and procedural challenges to the solutions in Part II and III, such as the law is too vague, overbroad, or an invalid prior restraint.
 Metro Broadcasting, Inc. v. F.C.C., 497 U.S. 547, 555 (1990)
 Office of Communication of United Church of Christ v. F.C.C., 359 F.2d 994, 1003 (D.C. Cir. 1966).
 Chong, Christina Shu Jien, Where are the Asians in Hollywood? Can §1981, Title VII, Colorblind Pitches, and Understanding Biases Break the Bamboo Ceiling? (August 23, 2016). Asian Pacific American Law Journal, Vol. 21, issue 1, p. 29-79 (2016); Univ. of San Francisco Law Research Paper No. 2016-18. Available at SSRN: https://ssrn.com/abstract=2828261.
 Office of Communication of United Church of Christ v. F.C.C., supra note 2, at 1003.
 Chong, Where are the Asians in Hollywood? Can §1981, Title VII, Colorblind Pitches, and Understanding Biases Break the Bamboo Ceiling?, supra note 3.