The Ninth Circuit Court of Appeals may consider whether entertainment industry employers’ First Amendment rights provide a strong enough defense in employment disputes involving off-hours social media posts. The case highlights the clash between employees’ lawful off-hours political expression and employers’ brand credibility.
The First Amendment has traditionally given strong protections to expressive employers, such as those in the entertainment and media industries, allowing them to control casting and messaging. But in California, these protections are weighed against the state’s strong employment laws regarding employee political activity. This tension is at the heart of Carano v. The Walt Disney Company, a lawsuit the studio is seeking to certify as an interlocutory appeal to be heard by the U.S. Court of Appeals for the Ninth Circuit because the issue raises fundamental constitutional questions in an area where the Supreme Court and the Ninth Circuit regularly issue new precedent.
In Carano’s case, the plaintiff alleges that her former employer violated California law that protects employees from retaliation for engaging in political activities outside of the workplace. She also claims that the company wrongfully fired her for her political views, and finally, that she suffered sex discrimination because her male co-stars did not face retaliation for making political statements on social media.
In July 2024, a federal court in California denied a film company’s motion to dismiss a lawsuit against an actor from the hit show The Mandalorian, raising the question of whether entertainment company employers’ First Amendment rights provide strong enough protection in employment disputes. The district court noted that California’s employment laws, which provide broad protections for employees, may limit the First Amendment defense, but noted that the First Amendment also protects speech in the entertainment industry. Specifically, there was discussion in the district court about whether an entertainment company’s artistic freedom justified firing an actor for an off-the-job social media post, especially if the post was not directly related to the show itself.
Key arguments from the expressive subject
Disney argues that casting decisions are an essential part of artistic expression and are protected by the First Amendment, which protects individuals and organizations from government action that infringes on free speech. As an “entity that creates speech products,” Disney claims it enjoys “the right to determine what is said in its films.” [its] The Court has argued that expressive organizations can restrict “their art and the manner in which it is expressed,” including the individuals who perform or create that art. The Court has argued that lawsuits challenging these decisions would chill artistic freedom, and has relied on precedents such as the Supreme Court’s decisions in Boys Scouts of America v. Dale (2000) and Green v. Miss United States (2022), as well as the Southern District of New York’s recent decision in Moore v. Hadestown Broadway LLC (2024). All of these decisions have affirmed that expressive organizations have the right to control the messages they communicate to the public, including the individuals they choose to represent them.
In Dale, the U.S. Supreme Court ruled that the Boy Scouts had the right, as an expressive entity, to exclude an openly gay leader (Dale) because he publicly advocated for LGBTQ+ rights. Dale’s presence conflicted with the group’s message. The court found that forcing the group to keep Dale would violate the group’s right to free expression because it would undermine the group’s ability to express its intended values and beliefs. Similarly, Disney argues that the plaintiff’s social media, as a public figure, interferes with the company’s artistic expression and that allowing her to remain would undermine its message of inclusivity and respect. Disney argues that Dale should fall within the present case because actors such as the Boy Scouts’ leader represent the group’s public persona. Thus, Dale provides that “the First Amendment must respect the group’s claims about the nature of expression,” and further that the group’s views about what undermines that expression, including state employment laws regarding casting decisions, must also be respected.
In Green v. Miss United States of America, the Ninth Circuit ruled that pageant organizers had a First Amendment right to exclude transgender contestants from the competition. The Court found that because pageants are expressive, they are permitted to enforce their interpretation of femininity and exclude individuals who do not meet their standards, and that First Amendment protections extend to the creative decisions of private companies. Disney’s defense hinges on this principle: just as the pageant defined the concept of femininity, Disney argues that it should be free to choose who represents its productions.
In Moore v. Hadestown Broadway LLC, the Southern District of New York dismissed a racial discrimination claim at the pleading stage. The court found that the First Amendment protects the right of Broadway theatre productions to cast actors of a particular race based on the producers’ views of the impact of the casting on the expressive content of the artistic work. The plaintiff, a black actor, claimed that he had been cast in a “workers’ choir” but was fired in order to increase the racial diversity of the choir. The show’s proponents made this decision because they were concerned that with an all-black choir and the two stars, Orpheus and Hades, white, the show would appear to be a “white saviour story”, which was not the message intended by the show’s creators. The court found that “in staging the musical, Hadestown’s creative decisions about what story to tell are [including casting] This falls squarely within the protection of the First Amendment.”
By comparison, the Eleventh Circuit recently rejected Fearless Fund’s First Amendment defense in a legal challenge by Fearless Fund Management LLC to a grant contest for black women entrepreneurs. In that case, the court found that Fearless Fund violated Section 1981 of the Civil Rights Act of 1866’s prohibition on race-based preferential treatment in contracts and exceeded First Amendment protections for expressive conduct. Although Fearless Fund argued that the grant contest was a charity and thus granted protected expressive conduct, not a contract, the court found that the program likely exceeded free speech protections because it did not accept applications from business owners who were not black or women.
Broader impacts on representational employers
For employers, including companies in the media and entertainment industry, the dispute is not about whether a firing or hiring decision was unfair, but about an expressive subject’s right to control their message. The Carano case illustrates how the scope of the First Amendment defense can be broadened to include outside-the-workplace conduct that threatens an expressive subject’s creative speech.
In an era when actors’ personal social media activity becomes intertwined with their public personas, entertainment companies face new challenges in brand management. Disney argues that employees’ off-hours social media behavior can directly impact their brand and artistic message. “The message of any performative art cannot be separated from its principal performer; this is a principle even more salient today, when many performers cultivate their own strong public personas through their extensive online activities,” Disney wrote. [lower] The Court’s dissenting decision misconstrues both the scope of artistic expression and the First Amendment’s limitations on state interference with such expression — at least, that’s how any reasonable jurist would conclude.”
This case also demonstrates that workplace policies must be enforced fairly. The plaintiff’s sex discrimination claim was based on her allegation that her male co-stars received no punishment for posting political opinions on social media. It is an important practice that employers are encouraged to apply all policies and rules consistently, uniformly, and without discrimination.
It will be important for entertainment industry employers to watch whether the Ninth Circuit will hear this case and, if so, how it will resolve the conflict between employment law and artistic expression. A ruling in Disney’s favor would (once again) secure a First Amendment defense and allow employers to exercise greater control over their employees’ public speech when it affects the company’s representational goals and image. On the other hand, a ruling in the plaintiffs’ favor could signal that employers need to create more nuanced employment policies regulating off-workplace conduct.
Regardless of whether this case makes it to the Ninth Circuit, employers in the entertainment and media industries will need to pay close attention to this evolving legal environment, where employees’ social media activity is blurring the lines between personal and professional.