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BET has First Amendment right to tell transgender on-screen TV personality to dress differently on-screen

So held a California trial court in Sessoms v. BET Networks, Inc. (Cal. Super. Ct. Apr. 17, 2014) (tentative ruling Apr. 16, adopted Apr. 17 by the judge).

That constitutional point seems right to me, including as to other kinds of discrimination; for a similar case involving alleged race discrimination in selecting contestants for “The Bachelor,” see this post. But I think that controlling how a person dresses on-screen, within the visual speech product that the producer is creating, without controlling how the person dresses, looks, or acts off-screen, is especially clearly protected by the First Amendment — just as a parade organizer’s controlling what banners appear in a parade is protected by the First Amendment, even when the organizer discriminates against banners of gay, lesbian, and bisexual groups.

The trial court’s conclusion that the BET Networks’s action wasn’t even a violation of state statute, because Sessoms was only required to change his wardrobe, and wasn’t dismissed or demoted, doesn’t strike me as right. California law bars employers from discriminating based on “gender expression,” defined to include “a person’s gender-related appearance and behavior.” Telling a man to change to more male-gender-conforming clothes on the job would, I think, be forbidden by the state law. But I agree with the court that the First Amendment allows a television program to dictate how its employees look when on-screen, whatever state law might say.

(It’s important for this, of course, that the case involves a defendant controlling the content of fully protected speech that it creates. No First Amendment defense would be available when the defendant isn’t speaking, or if the defendant is simply engaging in commercial advertising for its own products or services. Thus, a clothing store would not, I think, have a First Amendment exemption from anti-discrimination law when it is just trying to create a particular “look” among its salespeople.)

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

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