Conflict Between First Amendment and Discrimination on Broadway

JOOTB_FinalThe Broadway musical "Hadestown" recently provided the stage for a conflict between the First Amendment and discrimination laws.  Spoiler alert – the First Amendment won.

Plaintiff Kim Moore is a black woman who works as an actress. The Defendant is a company that produces and stages "Hadestown," a musical that runs on Broadway.  In January 2020, Defendant hired Ms. Moore to perform as an actress in its production of the Musical.  Plaintiff played the role of "Worker #1" as part of the Musical's "Workers Chorus," as well as other parts in the Musical.  As of November 2021, the Workers Chorus consisted exclusively of black cast members.  On November 23, 2021, David Neumann, a choreographer and supervisor for Defendant, emailed the entire cast of the Musical to apologize for the fact that the Musical was conveying a "white savior story" due to the exclusively black Workers Chorus.  In his email, Mr. Neumann stated that he, director Rachel Chavkin, and Liam Robinson, another Hadestown executive, were "commit[ted] to open dialogue regarding ongoing casting decisions and the ramifications of what that looks like in our particular story."  Specifically, Neumann noted that "certain arrangements of actors on stage (a white Orpheus, a white Hades, and a Worker Chorus of all Black performers)" may have told "an unintended and harmful 'white savior' story."  

In response to Mr. Neumann's email, Ms. Moore complained to Colette Luckie, an employee of Defendant's responsible for human resources, regarding the discrimination that she and other cast members in the Workers Chorus faced on the basis of their race. On November 24, 2021—the day after Mr. Neumann emailed the entire cast of the Musical to apologize for the Musical's "white savior story"—Timothy Reid, a supervisor and dance caption for the Musical, informed Plaintiff that Defendant was seeking to replace her in the cast with a white woman.  That day, Plaintiff lodged a second complaint about the racial discrimination she faced from Defendant. Defendant terminated Plaintiff on December 5, 2021.  On December 7, 2021, a white actress replaced Plaintiff in the role of Worker #1.  In 2023, Ms. Moore filed her lawsuit claiming racial discrimination and retaliation. 

On its face, Ms. Moore's claim had merit.  She was part of a protected class, was qualified for her job and was replaced based on her race.  Those facts weren't even in dispute.  But this is where the First Amendment came in.  Defendant argued that "permit[ting] governmental intrusion into the creative and artistic process would plainly violate the First Amendment's guarantees of free speech and free expression, and the prohibition against compelled speech."  . . .  "According to Defendant, [Ms. Moore's] effort to enforce anti-discrimination statutes through the instant lawsuit amounts to an unconstitutional violation of Defendant's right to make creative decisions about casting."

The court agreed.  It found that "Defendant was making its casting decisions with an eye toward how the racial composition of the Musical's cast affected the story Hadestown was telling on-stage. Defendant's executives were aware that the arrangements of actors on stage expressed a message that departed both from the text of the Musical's script and from what Defendant intended to express when it staged the Musical and thereafter sought to change those casting arrangements to change the unintended expression. This clearly implicates Defendant's exercise of its creative expression and artistic decisions."

The court concluded that that "enforcing [Ms. Moore's] four claims for racial discrimination would abridge Defendant's right to free speech that is guaranteed by the First Amendment. Hadestown's creative decisions about what story to tell when it stages the Musical fall squarely within the protection of the First Amendment."  Accordingly, the Court dismissed Ms. Moore's claims for racial discrimination. 

But the news wasn't all bad for Ms. Moore.  The Court did not dismiss her claims for retaliation.  On those claims, the Court concluded "[t]here is nothing [Ms. Moore] alleges in her Amended Complaint . . .  that would lead the Court to conclude that Defendant's alleged decision to terminate Plaintiff for engaging in such protected activity was related in any way to the "inherently expressive" artistic decisions it makes with respect the cast it puts on stage. Instead, the facts . . . that support her retaliation claims amount only to allegations that Hadestown chose to fire an employee who had lodged a complaint to its human resources employee."

The case will now come down to why Ms. Moore was replaced.  If it was because of her race, the First Amendment applies. If it was because she complained, the First Amendment isn't in play. 

About The Author

Jack Greiner | Faruki Partner