An actor, who had been slated to play former President Andrew Johnson in an Apple TV series concerning the hunt for Lincoln assassin John Wilkes Booth, can't sue the entertainment studio for firing him from the cast because he refused to get a Covid shot, an appeals court said.
On March 28, a three-justice panel of the California Second District Court of Appeal sided with Apple Studios LLC - the company Apple created to handle its original movies and television programs for its streaming channel - in the dispute with actor Brent Sexton over the company's decision to cut him from the cast of their series, "Manhunt."
In the decision, the appeals court said the studio had no obligation to cast an actor who had refused to abide the studio's rules regarding vaccinations, saying to find otherwise would violate the company's speech rights.
"Apple's casting was conduct in furtherance of free speech in connection with two public issues: a prominent entertainment company (1) voted with its feet in the vaccination controversy and (2) decided how to portray an enigmatic figure in American history," the justices wrote.
"... Sexton's position boils down to his claim that he had a right to impose a potentially deadly risk on coworkers so he could act in 'Manhunt.' No precedent supports this claim."
The decision reverses the order of a Los Angeles County Superior Court judge, who had denied Apple's motion to toss the lawsuit on the grounds that the suit violated its rights under California's law banning lawsuits designed to limit others from speaking on so-called matters of public concern.
Such lawsuits are known as strategic lawsuits against public participation, or SLAPPs.
Sexton had filed suit against Apple Studios in 2023, about a year after the studio retracted its offer to cast him in their coming new television series.
The series, "Manhunt," would focus on the pursuit of John Wilkes Booth following the assassination of President Abraham Lincoln after the Civil War.
According to court documents, Sexton in 2022 auditioned for and was offered the role of Andrew Johnson, who served as Lincoln's vice president and succeeded Lincoln as president following his death.
Sexton is a Hollywood veteran, who has made many appearances in a host of film and television projects. He is perhaps best known for roles on the television series "Deadwood," "Life," "The Killing" and "Bosch."
According to court documents, Sexton would have appeared in seven episodes, and was set to be paid $595,000 for his work on the series.
According to court documents, however, Apple withdrew the offer after Sexton indicated he had not received a Covid vaccine, which Apple said was required for everyone working on the set of its projects.
According to court documents, Apple said its rules were in accordance with federal and state public health guidance and were designed to minimize the risk of Covid outbreaks on set, which could slow production of the big budget TV series.
Even though evidence has since indicated the Covid shots neither prevented anyone from becoming infected with the virus that causes Covid, nor prevents them from spreading the virus, Apple said it believed the rules were needed and they refused to relent.
Court documents indicate Sexton had requested accommodations, including increased testing and possible masking while working on the series, Apple refused, saying it did not believe testing could prevent Covid outbreaks, nor would actors appearing on camera be able to wear masks, as the series was set in the 1860s.
In his lawsuit, Sexton accused Apple of violating his rights and discriminating against him on the basis of his vaccination status and medical history.
Apple responded by seeking to have the lawsuit tossed, notably arguing the lawsuit amounted to an effort by Sexton to punish the studio for siding with those pushing vaccine mandates in the aftermath of the Covid-19 pandemic.
The studio said it had a constitutional right to "speak" in that way and Sexton's lawsuit violated California's anti-SLAPP law.
After an L.A. County judge rejected Apple's anti-SLAPP reasoning, the company appealed and found a more welcoming audience before the Second District.
In the ruling, the justices said Apple, indeed, had every right use vaccination status to decide who to cast in creative roles in their series, and particularly for consequential historical figures, like Andrew Johnson.
"... The undisputed testimony of an Apple executive was that, after internal consultations, Apple determined its planned role required the actor playing Johnson to be 'unmasked and in close proximity to other employees during hair and make-up sessions as well as during performances, so social distancing was not possible without changing the creative requirements of the role,'" the justices wrote.
"The challenged activity was not merely logistical. It was also creative," the justices said.
The justices continued: "Apple’s decision to join the industry-wide agreement about vaccinations, and Apple’s vaccine condition on Sexton’s offer, contributed to public discussion of vaccination policy. In the face of a public debate over vaccination policy, Apple took a stand: it made vaccines mandatory on this set. Apple charted a path through the minefield and staked out a rigorous position."
The justices also rejected Sexton's claim Apple's decision amounted to illegal discrimination.
Essentially, the justices said Sexton's decision to refuse to be vaccinated made him ineligible to work on the show. Therefore, Apple did not legally discriminate against him by cutting him from the cast.
The decision was authored by Justice John Shepard Wiley Jr. Justices Elizabeth A. Grimes and Victor Viramontes concurred.
Sexton was represented by attorneys John W. Howard and Scott J. Street, of JW Howard/Attorneys, of San Diego. The JW Howard organization has been associated with current U.S. Health and Human Services Secretary Robert F. Kennedy Jr.
Apple was represented by attorneys Emma Luevano, Stephen A. Rossi and Rebecca Benyamin, of Mitchell Silberberg & Knupp, of Los Angeles.