Green v. Miss USA

Docket number: 21-35228 (9th Cir.)

Hamilton Lincoln Law Institute filed an amicus brief in the Ninth Circuit on behalf of Pinnacle Peak Pictures in support of the First Amendment rights of Miss United States of America. Miss USA, which annually orchestrates a women’s beauty pageant, was sued by a trangender activist seeking to compete in violation of the pageant’s rules limiting contestants to natural born females (among other criteria) in order to promote its message of empowering women. The district court ruled in favor of Miss USA, holding that the First Amendment protected the pageant’s right to free association. Green appealed to the Ninth Circuit.

Pinnacle Peak argued in an amicus brief in support of Miss USA that forcing the pageant to accept contestants who directly contravene the mission of its organizations would infringe upon the pageant’s rights, along with the rights of filmmakers, musicians, artists, and related entities to freely produce content consistent with their beliefs.

On November 2, 2022, the Ninth Circuit affirmed in favor of Miss USA, holding that forcing the pageant to include Green would infringe the pageant’s free speech rights.

The panel adopted the free speech framework from the HLLI amicus, and discussed at length the Broadway production of Hamilton, which Pinnacle Peak cited as an example of the creative importance of casting choices. The Ninth Circuit agreed that Hamilton‘s decision to cast white Founding Fathers with actors of color was “central to the message of the musical itself.” If the state could usurp that right, it would violate “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” The opinion relied heavily on the parallels between pageantry and movie/theatrical productions that HLLI brief featured prominently

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