CBS Defends ‘SEAL Team’ Diversity Hiring From ‘Anti-Whiteness’ Lawsuit
CBS filed a motion Thursday to dismiss a lawsuit challenging its diversity hiring practices for writers on the show “SEAL Team,” arguing that they have a First Amendment right to hire whomever they want.
Brian Beneker, the show’s longtime script coordinator, sued in February, alleging that he was repeatedly denied writing jobs because he is white and straight.
Beneker is backed by America First Legal, run by Stephen Miller, an adviser to former President Trump. The organization has sought to challenge diversity, equity and inclusion programs — which it calls “anti-whiteness” — in the entertainment industry and elsewhere in corporate America.
In its lawsuit, CBS argues that it has a constitutional right to decide who speaks on its behalf, which overrides anti-discrimination laws.
“CBS’s well-meaning decision to prioritize diversity in the writers’ room is protected by the First Amendment because—as Beneker’s complaint acknowledges—who writes for a creative work like ‘SEAL Team’ will influence the stories that ‘SEAL Team’ tells,” wrote Molly Lens, a partner at O’Melveny & Myers. “Therefore, restricting CBS’s ability to select writers at will—as Beneker seeks to do here—unconstitutionally undermines CBS’s ability to shape its message.”
In a similar case, Disney argued last month that it had a First Amendment right to fire “Mandalorian” actress Gina Carano after she posted a social media post that allegedly belittled the Holocaust.
Disney and CBS both cited the same case — Boy Scouts of America v. Dale and Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, among others — to suggest that the government cannot force a private organization to hire someone to express views it disagrees with.
Lens was also one of the attorneys representing Disney in the Carano case.
In both cases, the defense cited a racial discrimination lawsuit filed against ABC in 2011 for not casting a black man on “The Bachelor.” The judge dismissed that lawsuit, citing the producers’ First Amendment right to make their own casting decisions.
In 2020, CBS set a goal of 40% Black, Indigenous, and People of Color (BIPOC) representation in its writers room by 2021-22 and 50% by 2022-23.
A report by the Writers Guild of America West found that BIPOC writers made up 37% of all television writers in 2020, up from 13.6% a decade earlier.
Beneker’s lawsuit alleges that CBS’s goal amounts to an illegal hiring quota. The lawsuit alleges that white, heterosexual men need “additional qualifications” to be hired as writers, such as military experience or previous writing experience, compared to non-white, female, or LGBTQ writers, who do not need such qualifications.
The lawsuit alleges that the hiring policy violates the Civil Rights Act of 1964. It seeks an injunction to prevent CBS from implementing the policy and to require the show to hire Beneker as a producer.
CBS does not claim that the First Amendment makes the show immune to anti-discrimination laws. But the show does assert that the First Amendment prevails when hiring for positions—like writers or actors—that involve expressive behavior.
“The First Amendment programming rule of speaker autonomy gives CBS, and CBS alone, the right to decide what stories to tell on its television,” Lens writes. “And the show has a corresponding right to choose which writers are best suited to tell those stories.”
