Who Tells Your Story: The Legality of and Shift in Racial Preferences Within Casting Practices

Expressing racial preferences in casting calls and hiring practices is nothing new. Producers of television shows, movies, and Broadway musicals have regularly and explicitly sought to hire actors and actresses with certain physical characteristics, including race, in casting their productions. And, given that the industry seemingly accepted this standard when it favored white talent, the public heard little about it. To the extent controversy arose, courts quelled concerns in a swift and easy fashion, without consideration of the societal harms or impacts that stereotyped or limited portrayals of minorities in entertainment could have on the public’s perception of people of color. Indeed, courts have regularly upheld producers’ preferences to significantly limit the number of minority actors or actresses in a production under First Amendment principles. When Hamilton opened on Broadway in July 2015, it was met with resounding success. Many aspects of the musical were unique: dialogue occurred entirely in rap verse; the story concerned a real-life historical figure; the show’s writer, Lin-Manuel Miranda, starred as the lead character; and, notably, the cast was almost entirely nonwhite. The show’s final number, entitled “Who Lives, Who Dies, Who Tells Your Story?” leaves the audience with the lingering question of who should, and will, tell Hamilton’s story. By intentionally casting primarily nonwhite talent to portray historical figures—many of whom, in reality, were white—Miranda seemingly answers the question, at least as it applies to his show. But in doing so, numerous critics have questioned whether Hamilton’s casting policies have crossed a line beyond the First Amendment’s protections and violated existing anti-discrimination statutes. This Article argues that the decision to cast primarily nonwhite talent in Hamilton falls squarely within the scope of First Amendment protections; the race of the cast is integral to telling the show’s underlying story and conveying the critical message that America is a nation of immigrants. In drawing this conclusion, however, this Article questions whether there are societal and policy-based reasons to reform our approach towards race-based casting on a broader scale. Considering existing data that shows a disparity of casting opportunities for actors and actresses of color, this Article takes the position that casting practices that discriminate against minorities ought to be reformed. After examining several potential methods for challenging these practices via statutory reform, this Article ultimately concludes that other culturally normative methods would likely be more effective in influencing casting practices. The creative community (especially screenwriters), audiences, and the public at large have immense power when it comes to casting roles and can greatly influence casting decisions. This Article proposes several steps these groups can take to effectively promote diversity in casting and ensure that diverse representation in the entertainment industry becomes a business necessity and, accordingly, a reality