March 31st, 2018 § Comments Off on Quotation Marks Don’t Soften a Slur in Chicago § permalink
Now there is a redaction, an editor’s note, and an author’s apology. But for roughly 24 hours between Wednesday and Thursday this week, in a theatre review in the Chicago Reader, the racially incendiary “n-word” was part of the text online.
The review, by Justin Hayford, was of the Court Theatre’s current production of the stage adaptation of the 1967 film Guess Who’s Coming To Dinner. The slur is spoken, once, during the play itself, by a black father to his black son. When the word first appeared in the Reader, it wasn’t presented as a quote, but rather as Hayford’s paraphrase of that moment in the play.
Within hours of the review going online, outrage flared, with multiple advocates conferring and venting on social media with one another and sharing the communications they had begun to share with the Reader. Their efforts led to a fairly quick reaction from the publication, or rather reactions, because at first, the piece was altered to place the entire phrase containing the word in quotes, suggesting that Hayford was citing a line in the text. Subsequently, in a second edit, the quotes were shifted to only include the word itself in quotes. Finally, on Thursday afternoon, the word was wholly redacted, appearing as “[vile racial epithet]”, with the actual snippet of a quote – different than what Hayford had previously written – from the play appearing in the text, marked off with quotation marks.
“Although the character in the play uses the N-word, I could have conveyed the horror of the stage moment without quoting the word at all, as many of you rightly pointed out. I might have used “vile racial epithet” instead. I clearly underestimated the hateful and hurtful nature of that word’s appearance in print, even when citing a character’s use of it.”
The editor’s note on the piece itself now reads:
“During the play, one of the characters uses a racial slur. Although the offensive language came directly from the script, we should have not printed it. We have removed the offensive word. We apologize.”
Given the relatively rapid time lapse from offense to apology, some might feel that the issue has been put to rest. But that fails to recognize the significance of the initial insult and the ham-fisted way in which the Reader tried, twice, to rationalize and qualify the primary word choice.
With any professional publication, even though the ranks of editors and copy editors have been reduced in recent years throughout the field, it’s simply not possible that Hayford’s review appeared online without at least one other person at the Reader having read it and approved it. The backtracking and ultimate contrition only began when the furious reaction set in.
When quotation marks went up around Hayford’s original clause containing the slur, it was ostensibly to make clear that the word was part of the text. But Hayford’s failure to provide an accurate quotation from the script completely undermined the effort, and in a review of some 440 words, was a phrase of less than 10 sufficient context to justify that particular quote, with that word, the only quote in the review? As it came clear that Hayford was not citing the script, the quotes were shifted to only the word in question, stripping it of any context and making impossible to acknowledge it as coming from the script. On that basis, quotes could have also surrounded Hayford’s use of the word “and.”
Having learned of the online upset during this period of multiple revisions, but prior to the final version, Edwin Eisendrath, CEO of the Chicago-Sun Times, which owns the Reader, reached out to Richard Costes, an active advocate in the Chicago theatre community, who had been posting about the review on Facebook and e-mailing the leadership at the publication. Eisendrath wrote, in part:
“The concerns, later summarized in in the e-mail you sent, are disturbing, and prompted some digging. In fact, we have confirmed that the awful racial epithet quoted in the review is in the script and was part of the performance. The reviewer felt the scene was a powerful part of the play, and included it in the write-up. . .
You are also right that the word and the subject are painful. Theatre, as all arts do, treats in painful subjects [sic]. Sometimes artists are more successful and sometimes less successful in their efforts. Reviewing these efforts can be tricky when the reviewer wants to convey the experience of the performance.”
Leaving aside the condescension of the CEO explaining the purpose and effect of theatre to someone in the theatre, it is clear that the initial plan at the Reader was to justify each successive choice – until they reached a point when they realized the position wasn’t defensible. As a matter of free speech, they had the right to print what they did, but it took a lot of voices crying out to bring the Reader to the point where the powers that be understood that in this case was a serious ethical lapse to deploy the slur.
Why “in this case”? If, in an essay-length review, a critic writing about this piece, or perhaps one of August Wilson’s plays, included a sustained quotation, or several, in which the word was fully contextualized, then it might be seen as part of a comprehensive critique and clear part of the author’s voice. It does appear – just once – in Todd Kreidler’s stage adaptation, but the brief quotation strips the word of the context of a scene or the speaker, let alone a two-hour anti-racism work.
Only weeks ago, the Reader was engulfed in controversy when this same racial slur was used in the headline of an article about gubernatorial candidate J.B. Pritzker. The Reader, appropriately, backtracked there as well; in fact, it fired the editor responsible. So it’s impossible to think that anyone working for the Reader hadn’t already been made aware of the incendiary nature of the n-word, even if they had never encountered it and its ugly history before (which is, of course, highly doubtful).
The Chicago Reader gave extraordinary service to the theatre community with its groundbreaking expose of Profiles Theatre in June 2016. In fact, their sensitivity there only throws the pain and anger prompted by the Guess Who’s Coming To Dinner review into higher relief. They have absolutely done better in the past and, if their writers, their editors and their publisher have actually learned something from making the same gaffe twice in two months, they will do better in the future. But they have to prove it.
Another Chicago voice heard clearly during the immediate outrage over the review was that of playwright Ike Holter, whose Facebook page became a rallying point against the use of the slur. Among his many posts was this thought, which might serve as a guide to all future editors and writers considering the use of the n-word and its impact:
“If a black person is mad at the word, assume it is on a level of hurt, pain and fear that you will never understand. Do not tell them to “Calm Down” or “Be Quiet”. either support them or leave them alone. When we hear that word from a non black person, it hits an invisible bone in our body. You don’t want to know what it feels like, so don’t act like you do.”
One last note: Hayford’s review, with the slur intact, sans apology, appears in print in this week’s Chicago Reader. Even if there’s an editor’s note next week, nothing can take that back.
March 31st, 2018 § Comments Off on Quotation Marks Don’t Soften a Slur in Chicago § permalink
Now there is a redaction, an editor’s note, and an author’s apology. But for roughly 24 hours between Wednesday and Thursday this week, in a theatre review in the Chicago Reader, the racially incendiary “n-word” was part of the text online.
The review, by Justin Hayford, was of the Court Theatre’s current production of the stage adaptation of the 1967 film Guess Who’s Coming To Dinner. The slur is spoken, once, during the play itself, by a black father to his black son. When the word first appeared in the Reader, it wasn’t presented as a quote, but rather as Hayford’s paraphrase of that moment in the play.
Within hours of the review going online, outrage flared, with multiple advocates conferring and venting on social media with one another and sharing the communications they had begun to share with the Reader. Their efforts led to a fairly quick reaction from the publication, or rather reactions, because at first, the piece was altered to place the entire phrase containing the word in quotes, suggesting that Hayford was citing a line in the text. Subsequently, in a second edit, the quotes were shifted to only include the word itself in quotes. Finally, on Thursday afternoon, the word was wholly redacted, appearing as “[vile racial epithet]”, with the actual snippet of a quote – different than what Hayford had previously written – from the play appearing in the text, marked off with quotation marks.
“Although the character in the play uses the N-word, I could have conveyed the horror of the stage moment without quoting the word at all, as many of you rightly pointed out. I might have used “vile racial epithet” instead. I clearly underestimated the hateful and hurtful nature of that word’s appearance in print, even when citing a character’s use of it.”
The editor’s note on the piece itself now reads:
“During the play, one of the characters uses a racial slur. Although the offensive language came directly from the script, we should have not printed it. We have removed the offensive word. We apologize.”
Given the relatively rapid time lapse from offense to apology, some might feel that the issue has been put to rest. But that fails to recognize the significance of the initial insult and the ham-fisted way in which the Reader tried, twice, to rationalize and qualify the primary word choice.
With any professional publication, even though the ranks of editors and copy editors have been reduced in recent years throughout the field, it’s simply not possible that Hayford’s review appeared online without at least one other person at the Reader having read it and approved it. The backtracking and ultimate contrition only began when the furious reaction set in.
When quotation marks went up around Hayford’s original clause containing the slur, it was ostensibly to make clear that the word was part of the text. But Hayford’s failure to provide an accurate quotation from the script completely undermined the effort, and in a review of some 440 words, was a phrase of less than 10 sufficient context to justify that particular quote, with that word, the only quote in the review? As it came clear that Hayford was not citing the script, the quotes were shifted to only the word in question, stripping it of any context and making impossible to acknowledge it as coming from the script. On that basis, quotes could have also surrounded Hayford’s use of the word “and.”
Having learned of the online upset during this period of multiple revisions, but prior to the final version, Edwin Eisendrath, CEO of the Chicago-Sun Times, which owns the Reader, reached out to Richard Costes, an active advocate in the Chicago theatre community, who had been posting about the review on Facebook and e-mailing the leadership at the publication. Eisendrath wrote, in part:
“The concerns, later summarized in in the e-mail you sent, are disturbing, and prompted some digging. In fact, we have confirmed that the awful racial epithet quoted in the review is in the script and was part of the performance. The reviewer felt the scene was a powerful part of the play, and included it in the write-up. . .
You are also right that the word and the subject are painful. Theatre, as all arts do, treats in painful subjects [sic]. Sometimes artists are more successful and sometimes less successful in their efforts. Reviewing these efforts can be tricky when the reviewer wants to convey the experience of the performance.”
Leaving aside the condescension of the CEO explaining the purpose and effect of theatre to someone in the theatre, it is clear that the initial plan at the Reader was to justify each successive choice – until they reached a point when they realized the position wasn’t defensible. As a matter of free speech, they had the right to print what they did, but it took a lot of voices crying out to bring the Reader to the point where the powers that be understood that in this case was a serious ethical lapse to deploy the slur.
Why “in this case”? If, in an essay-length review, a critic writing about this piece, or perhaps one of August Wilson’s plays, included a sustained quotation, or several, in which the word was fully contextualized, then it might be seen as part of a comprehensive critique and clear part of the author’s voice. It does appear – just once – in Todd Kreidler’s stage adaptation, but the brief quotation strips the word of the context of a scene or the speaker, let alone a two-hour anti-racism work.
Only weeks ago, the Reader was engulfed in controversy when this same racial slur was used in the headline of an article about gubernatorial candidate J.B. Pritzker. The Reader, appropriately, backtracked there as well; in fact, it fired the editor responsible. So it’s impossible to think that anyone working for the Reader hadn’t already been made aware of the incendiary nature of the n-word, even if they had never encountered it and its ugly history before (which is, of course, highly doubtful).
The Chicago Reader gave extraordinary service to the theatre community with its groundbreaking expose of Profiles Theatre in June 2016. In fact, their sensitivity there only throws the pain and anger prompted by the Guess Who’s Coming To Dinner review into higher relief. They have absolutely done better in the past and, if their writers, their editors and their publisher have actually learned something from making the same gaffe twice in two months, they will do better in the future. But they have to prove it.
Another Chicago voice heard clearly during the immediate outrage over the review was that of playwright Ike Holter, whose Facebook page became a rallying point against the use of the slur. Among his many posts was this thought, which might serve as a guide to all future editors and writers considering the use of the n-word and its impact:
“If a black person is mad at the word, assume it is on a level of hurt, pain and fear that you will never understand. Do not tell them to “Calm Down” or “Be Quiet”. either support them or leave them alone. When we hear that word from a non black person, it hits an invisible bone in our body. You don’t want to know what it feels like, so don’t act like you do.”
One last note: Hayford’s review, with the slur intact, sans apology, appears in print in this week’s Chicago Reader. Even if there’s an editor’s note next week, nothing can take that back.
September 28th, 2017 § Comments Off on Telling James Franco’s lawyer, “Your client does not have any valid claim” § permalink
This summer, when an attorney for actor James Franco sent New York’s People’s Improv Theatre a cease and desist letter regarding the venue’s planned presentation of the play James Franco and Me, PIT’s response was to cancel the booking. At the time, Kevin Broccoli, author and performer of JF and Me had no legal representation, and so the stories that emerged were that Franco had successfully shut down the production, as highlighted in numerous media outlets, including The New York Times and Rolling Stone.
Among the organizations that stepped in to assist Broccoli were the Arts Integrity Initiative and the Dramatists Legal Defense Fund, and in August, DLDF secured the pro bono services of the law firm Davis Wright Tremaine to represent Broccoli in an effort to insure his play could be seen. Yesterday, DWT responded in writing to Thomas Collier, the attorney at Sloane, Offer, Weber and Stern, who had sent the original cease and desist, asserting that it was without foundation and that Broccoli may present the play and companies may produce it under the protections offered by the First Amendment.
In a statement to Arts Integrity, Broccoli said, “I’m truly amazed at the amount of support my play has received since July when this story broke. I’m very grateful to Davis Wright Tremaine, especially Nicolas Jampol and Kathleen Cullinan, who have been working tirelessly, and to Dramatists Legal Defense, who helped connect me with them. Right now it appears that there’s an opportunity to do the play at several theaters across the county, including New York, and that’s really been my goal from the beginning.”
Jampol’s letter to Collier asks for a response within two weeks. The full text, with all legal citations and footnotes, appears below. It makes for fascinating reading and important information for playwrights.
* * *
We represent playwright Kevin Broccoli in connection with your client James Franco’s attempt to pressure theatrical venues into cancelling performances of Mr. Broccoli’s play James Franco and Me (the “Play”). In particular, we write in response to your July 7, 2017 cease-and- desist letter to the People’s Improv Theater, which resulted in the cancellation of several performances of the Play.
For the reasons explained below, we are confident that your client does not have any valid claim in connection with the Play. Contrary to the assertions in your letter, the First Amendment provides playwrights and other creators of expressive works – including both your client and Mr. Broccoli – with robust protection against the claims you threatened. Put simply, Mr. Broccoli does not need Mr. Franco’s permission to perform the Play, and will perform the Play as he desires. Mr. Broccoli also reserves the right to take legal action if your client continues to interfere with his contractual relationships with theatrical venues.
The Play
In the Play, a character named Kevin – which is based upon, and typically played by, Mr. Broccoli – sits in a hospital waiting room while his father is dying. The “James Franco” character stays with Kevin during the agony and tedium of awaiting a loved one’s fate in a lonely and impersonal waiting room. Their wide-ranging discussion tackles numerous topics like art, passion, sexual identity, and death, while engaging in a critical exploration of Mr. Franco’s films and television projects, including 127 Hours, Spring Breakers, Pineapple Express, Rise of the Planet of the Apes, General Hospital, Spiderman, Oz the Great and Powerful, and This Is the End, among others.
In addition to exploring Mr. Franco’s works, the Play parodies the public perception of Mr. Franco as a passionate, eccentric actor and artist who fully invests himself in his work. In one scene, for example, the “James Franco” character describes how he emotionally cut off his arm in preparation for his role as Aron Ralston in 127 Hours. In other scenes, the character vehemently disclaims any interest in money, highlighting Mr. Franco’s perception as someone who is not simply interested in pursuing projects for maximum financial gain – he believes in the art, and strives for something more than wealth creation.
Apart from examining Mr. Franco’s career and public perception, the Play also uses the “James Franco” character as a vehicle to explore Mr. Broccoli’s own feelings about life, death, his career, and his relationship with his father against the looming sense of mortality in the hospital waiting room. As one review explained, “this play becomes a kind of meta commentary on life, celebrity, loss, failure and friendship.”1
While not relevant to whether Mr. Franco could establish a valid claim against Mr. Broccoli in connection with the Play, the fact is that Mr. Broccoli is a long-time admirer of Mr. Franco and his work, and the portrayal is overwhelmingly positive. The Play specifically refers to Mr. Franco as “one of the most spontaneous and unique performers of his generation,” and explains that if Mr. Franco “stands for anything, it’s artistic simplicity.”
Mr. Franco Has No Viable Right-of-Publicity Claim
The First Amendment protects Mr. Broccoli from any right-of-publicity or misappropriation claim in connection with the “James Franco” character in the Play. Under well-established law, celebrities simply do not enjoy absolute control over the use of their name and likeness, particularly in an expressive context, such as a play.2 Mr. Franco has benefited from this principle in numerous of his works with characters that were based on, or inspired by, real people and events.
In Sarver v. Chartier, 813 F.3d 891, 896 (9th Cir. 2016), for example, an Army sergeant brought right-of-publicity claims against the producers of the film The Hurt Locker, which featured a fictional character that the plaintiff contended was based on him. In affirming the dismissal of the claims, the court explained that “The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art, be it articles, books, movies, or plays.” Id. at 905. Almost four decades earlier, in Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860, 862 (1979), Rudolph Valentino’s nephew sued over a television movie titled Legend of Valentino: A Romantic Fiction, a fictionalized version of his uncle’s life. In rejecting the claim, Chief Justice Bird wrote for the majority of the court in a now-widely-cited concurrence3 explaining that the First Amendment protected the film against plaintiff’s cause of action for misappropriation of Valentino’s name and likeness:
Contemporary events, symbols and people are regularly used in fictional works. Fiction writers may be able to more persuasively, or more accurately, express themselves by weaving into the tale persons or events familiar to their readers. The choice is theirs. No author should be forced into creating mythological worlds or characters wholly divorced from reality. The right of publicity derived from public prominence does not confer a shield to ward off caricature, parody and satire. Rather, prominence invites creative comment. Surely, the range of free expression would be meaningfully reduced if prominent persons in the present and recent past were forbidden topics for the imaginations of authors of fiction. Id. at 869.4
Without these critical protections, content creators would be required to obtain approval from any real person – or such person’s estate – depicted in a television series, motion picture, or theatrical production, which would allow them to veto controversial or unflattering portrayals. This would place a significant restriction on the marketplace of ideas and would have prevented the production of acclaimed films such as Spotlight, The Social Network, and Selma. As mentioned above, Mr. Franco himself is no stranger to depicting real individuals, including in Milk, Lovelace, and Spring Breakers, among many others.
Mr. Broccoli uses the “James Franco” character to comment on Mr. Franco’s career and public perception, while using it as a vehicle to explore Mr. Broccoli’s feelings about his own life and work, among other topics. In other words, in addition to dealing with a matter in the public interest – Mr. Franco and his career – the Play uses the character to enable Mr. Broccoli to “more persuasively, or more accurately, express [himself].” Guglielmi, 24 Cal. 3d at 869. See also Comedy III Productions, 25 Cal. 4th at 397 (explaining that “because celebrities take on personal meanings to many individuals in the society, the creative appropriation of celebrity images can be an important avenue of individual expression”). As a result, the Play enjoys broad protection under the First Amendment and against any potential right-of-publicity claim that Mr. Franco might assert.5
Mr. Franco Has No Viable Trademark-Infringement Claim
The Lanham Act and state trademark law do not exist to imbue trademark owners and celebrities with the unrestricted power to prevent the unauthorized use of their marks or names in expressive works. Instead, trademark law is “is intended to protect the ability of consumers to distinguish among competing producers, not to prevent all unauthorized uses” of a mark. Utah Lighthouse Ministry v. Found. for Apologetic Info., 527 F.3d 1045, 1052 (10th Cir. 2008). Based on the Play, no reasonable viewer would be confused into thinking that Mr. Franco had sponsored or approved the Play – in fact, the Play makes clear that the “James Franco” character is a fictionalized version of Mr. Franco, and there is absolutely nothing in the Play that suggests or implies that Mr. Franco himself had any involvement in the Play. The implausibility of consumer confusion would bar any trademark-infringement claim here.
Even if Mr. Franco could somehow establish the elements of a Lanham Act claim, it would still fail because the Play is an expressive work entitled to full First Amendment protection. When a Lanham Act claim targets the unauthorized use of a mark in an expressive work, the traditional likelihood-of-confusion test does not apply because it “fails to account for the full weight of the public’s interest in free expression.” Mattel v. MCA Records, 296 F.3d 894, 900 (9th Cir. 2002). Instead, such claims must pass the Rogers test, which bars any Lanham Act claim arising from an expressive work unless the use of the mark “has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.” Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989). The Rogers test is highly protective of expression, and has since become the constitutional threshold for Lanham Act claims arising from the unauthorized use of marks within expressive works.6
The first prong of the Rogers test is satisfied if the alleged mark as any artistic relevance to the underlying work. See Rogers, 875 F.2d at 999. Courts have interpreted this requirement to mean that “the level of artistic relevance of the trademark or other identifying material to the work merely must be above zero.” Brown v. Electronic Arts, Inc., 724 F.3d 1235, 1243 (9th Cir. 2013) (brackets omitted). The second prong of the Rogers test is satisfied unless the defendant’s work makes an “overt claim” or “explicit indication” that the plaintiff endorsed or was directly involved with the work. Rogers, 875 F.2d at 1001 (“The title ‘Ginger and Fred’ contains no explicit indication that Rogers endorsed the film or had a role in producing it”). This requirement of an “overt claim” applies even where consumers mistakenly believe there is some connection between the mark owner and the expressive work. See, e.g., ETW, 332 F.3d at 937 n.19 (finding that a painting of Tiger Woods did not expressly mislead consumers despite survey evidence that sixty-two percent of respondents believed the golfer had “an affiliation or connection” with the painting “or that he has given his approval or has sponsored it”).7
Because the Play is an expressive work entitled to full First Amendment protection, the Rogers test would apply to any trademark claim Mr. Franco might bring. It is beyond dispute that Mr. Franco’s name is artistically relevant to a play that examines his career and public persona. Moreover, the Play does not make any explicit claim that Mr. Franco endorsed or was affiliated with the Play. To the contrary, Mr. Broccoli made clear in press interviews that the “James Franco” role would be played by different actors – not Mr. Franco8 – and never made any statement or suggestion that Mr. Franco sponsored or was otherwise involved with the Play. Accordingly, because the Rogers test is easily satisfied, the First Amendment bars any trademark-infringement claim by Mr. Franco.9
Mr. Franco Must Cease Interfering with the Exhibition of the Play
We request that Mr. Franco stop interfering with Mr. Broccoli’s right to exhibit the Play, and Mr. Broccoli expressly reserves his right to pursue a claim for such interference. Despite the fact that he can rightfully exhibit the Play without Mr. Franco’s permission, Mr. Broccoli is still an admirer of Mr. Franco, and is willing to engage in dialogue with him or his representatives regarding any specific objections he has to the Play or whether any particular disclaimer would alleviate Mr. Franco’s concerns. Like Mr. Franco, Mr. Broccoli is dedicated to his artistic craft, and despite his legal right to exhibit the Play without Mr. Franco’s permission, he would prefer to focus his time and energy on the Play, and not this dispute.
2 As one court explained in affirming the dismissal of a right-of-publicity claim arising from a film, “[t]he industry custom of obtaining ‘clearance’ establishes nothing, other than the unfortunate reality that many filmmakers may deem it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits such as this one.” Polydoros v. Twentieth Century Fox, 67 Cal. App. 4th 318, 326 (1997).
3See Comedy III Productions v. Gary Saderup, 25 Cal. 4th 387, 396 n.7 (2001) (recognizing that Chief Justice Bird’s concurrence “commanded the support of the majority of the court”).
4 Chief Justice Bird also explained that it would be “illogical” if the First Amendment allowed the defendants to exhibit the film, but prohibit them from using Valentino’s name in advertising for the film. Id. at 873. See also Polydoros v. Twentieth Century Fox Film Corp., 67 Cal. App. 4th 318, 325 (1997) (holding that the use of the plaintiff’s name and likeness in a film was not an actionable violation of the right of publicity, and thus “the use of his identity in advertisements for the film is similarly not actionable”).
5 The transformative-use defense would provide another layer of constitutional protection against a right-of-publicity claim because Mr. Franco’s likeness is “one of the ‘raw materials’ from which an original work is synthesized,” and his “likeness is so transformed that it has become primarily the defendant’s own expression.” See Winter v. DC Comics, 30 Cal. 4th 881, 888 (2003).
6See, e.g., Cliffs Notes v. Bantam Doubleday Dell, 886 F.2d 490, 495 (2d Cir. 1989) (holding that “the Rogers balancing approach is generally applicable to Lanham Act claims against works of artistic expression”); ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 n.11 (6th Cir. 2003) (explaining that the Rogers test is “generally applicable to all cases involving literary or artistic works where the defendant has articulated a colorable claim that the use of a celebrity’s identity is protected by the First Amendment”); E.S.S. Entm’t 2000 v. Rock Star Videos, 547 F.3d 1095, 1099 (9th Cir. 2008) (“Although [the Rogers test] traditionally applies to uses of a trademark in the title of an artistic work, there is no principled reason why it ought not also apply to the use of a trademark in the body of the work.”); Univ. of Alabama v. New Life Art, 683 F.3d 1266, 1278 (11th Circ. 2012) (expressing “no hesitation in joining our sister courts by holding that we should construe the Lanham Act narrowly when deciding whether an artistically expressive work infringes a trademark,” and applying Rogers to “paintings, prints, and calendars”).
7 Similarly, the Rogers court found that the defendants did not expressly mislead despite evidence that “some members of the public would draw the incorrect inference that Rogers had some involvement with the film.” 875 F.2d at 1001. The court explained that any “risk of misunderstanding, not engendered by any overt claim in the title, is so outweighed by the interests in artistic expression as to preclude application of the Lanham Act.” Id.
9 Any unfair-competition claim would fail for the same reasons as a right-of-publicity or trademark-infringement claim. See, e.g., Kirby v. Sega of America, 144 Cal. App. 4th 47, 61-62 (2006) (where First Amendment barred plaintiff’s misappropriation and Lanham Act claims, it also barred her unfair-competition claim).
Does anyone remember last summer’s TheTaming of the Shrew in Central Park? It opened with an entirely non-Shakespearean beauty pageant and talent show, led by a buffoonish figure costumed to look very much like a billionaire presidential candidate who has owned, and exploited, beauty pageants of his own. Coming in a production in which the entire cast was women, in a play that is widely considered to be misogynist in our era, it was a broad parody, a buffoonish portrayal of a political figure who had yet to consolidate his electoral power. But there was no mistaking that this was meant to be Donald J. Trump.
Now Trump is president and, by all accounts, he is once again on stage at The Public Theater’s Delacorte Theater—or rather Julius Caesar is on stage costumed to evoke the now-president, complete with a fashionable spouse who reportedly speaks in an Eastern European accent. Because Caesar is – as we all know – killed, the layering of present day politics in America over a 400-year old play (set even centuries) earlier is being said by some to have crossed a line. Lumped together with Kathy Griffin’s less classically oriented gory political theatre in which she posed with a bloody head, strongly implied to be that of the president, The Public’s Caesar quickly became a target for such media outlets as Breitbart and Fox News, even drawing a certain Donald Jr. into Twitter commentary.
“I wonder how much of this ‘art’ is funded by taxpayers?,” tweeted the presidential scion. “Serious question, when does ‘art’ become political speech & does that change things?” A Fox News tweet, headlined “NYC Play Appears to Depict Assassination of @POTUS,” was appended.
The tweet itself, for those inclined to look at such things analytically, undermined itself with its intellectual flabbiness. There is no hard line between art and politics, no absolute moment when one becomes the other. The Public Theater is hardly a stranger to melding the two, with shows ranging from Hair in the 1960s to Hamilton in 2015. It staged David Hare’s Stuff Happens and Tony Kushner’s The Intelligent Homosexual’s Guide. Always socially minded, it is at least as outspoken as ever under the leadership of Oskar Eustis, the proud and vocal product of a left-wing youth. Indeed, there has been very little at The Public during Eustis’s tenure that hasn’t been easy to examine through a political prism.
Yesterday, when pressure from Breitbart, from Fox, from the Trump family, reached a point when it may have seemed to them politically, corporately, and publicly untenable from a perceptual angle to underwrite (with many others) the production, Delta Airlines disavowed The Public, pulling their support from the theatre entirely. Bank of America followed suit, but somewhat more guardedly, only pulling their support of Caesar itself. In doing so, they gave the production – for which tickets are free – vastly more attention than it had already received. Even as theatre die-hards were focused on The Tony Awards, the story of the Trump-like Caesar exploded in the media.
In statements and tweets, Delta stuck to a singular sentiment:
No matter what your political stance may be, the graphic staging of Julius Caesar at this summer’s Free Shakespeare in the Park does not reflect Delta Air Lines’ values. Their artistic and creative direction crossed the line on the standards of good taste. We have notified them of our decision to end our sponsorship as the official airline of The Public Theater effective immediately.
Bank of America stated:
Bank of America supports arts programs worldwide, including an 11-year partnership with The Public Theater and Shakespeare in the Park. The Public Theater chose to present Julius Caesar in such a way that was intended to provoke and offend. Had this intention been made known to us, we would have decided not to sponsor it. We are withdrawing our funding for this production.
In a report for Deadline, Jeremy Gerard noted that the airline’s support fell in the $100,000 to $499,000 category of sponsorship; airline arts support typically takes the form of vouchers for flights or a bank of so much value that can be used to acquire tickets, though it’s possible that there was cash involved. Certainly, that’s the likely case with Bank of America, which like many corporations has philanthropic arms, though in recent years corporate philanthropy has become inextricably linked with marketing and public relations.
Does The Public have the absolute right to stage the works it chooses and in the manner it sees fit? Yes, it certainly does. It is an independent not-for-profit organization, and what it chooses to produce, to share with audiences, is entirely the responsibility of the staff and, by extension, the board of directors. Does it have an absolute right to sponsorship or donations from any particular organizations? No. That is the result of fundraising, of a cost benefit analysis on the part of any potential sponsor or donor. If they like the work, the mission, the initiatives, of The Public – or any arts organization – individuals, government sources, foundations and corporations may choose to support it.
But there’s no mistaking the actions of Delta and Bank of America as anything but political acts as well, cloaked in the guise of corporate sensitivity. While they have not said exactly what line has been crossed by Caesar, it doesn’t seem that it’s about blood or even gore. Shakespeare is filled with violence and its results, though typically in service of a larger message. But with their decision to publicly pull funding, and even sever a long relationship in the case of Delta, these corporations are saying to those who take offense at an obviously fictional portrayal of Julius Caesar as a Trump stand-in that they don’t countenance such things, that they are shocked, shocked to find politics on stage at The Public, even a mock assassination, and don’t want to be a part of it.
As a number of sources online have noted, Delta’s outrage seems rather selective. In 2012, The Guthrie Theatre and The Acting Company staged and toured a Julius Caesar with a slim black actor being “murdered” in the Senate as Caesar, midway through the Obama presidency. Some critics remarked on the parallel to the then-president, but Delta’s sponsorship there was unruffled. Why was the death of one presidential doppelganger OK while another crossed a line? I suspect the corporate PR department of Delta is unlikely to answer that question.
By pulling their support, have Delta and Bank of America censored Caesar and The Public? Are any First Amendment rights being trampled? On an absolute level – no. Media commentary cuts both ways. The participation of a member of the governing family, however, which has blended the personal and the political in countless ways, is the kernel of official censorship. Yet the show goes on (although it ends its brief run this week) and, so far as any reports have indicated, neither company attempted to get the production altered to make it more palatable to their tastes. Indeed, it’s unclear whether either company has had any representatives see Caesar in the park, or have made their decision, cloaked behind corporate statement, based solely on the media coverage.
Will there be a backlash to the actions of these companies? Will those who support The Public and free expression in the arts now make their feelings known to these companies, and others that might jump on the bandwagon? It’s very likely. It’s also possible that those who support these decisions will affirm it as well. People will refuse to fly Delta and keep their money with Bank of America, even as others will opt in to the carrier and the financial institution. Beyond merely expressing support and dissent, the era of dueling boycotts is probably upon us. Delta and B of A may find they have become the preferred outlets for the right and even the alt-right. By making this choice in their support, and withholding of support, of the arts, they have become politically-tinged corporations, aligned with a certain point of view.
The true danger here is that supporters of the arts will begin to interrogate possible beneficiaries of their intent for each and every undertaking, keeping funds from organizations and initiatives that might be aligning themselves politically by making any comment, right or left, Republican or Democrat, liberal or conservative. After all B of A judges that the production set out to “provoke and offend.” No doubt Eustis wanted to provoke, that’s his stock in trade. But offend? That’s less clear.
Will the fear of media backlash force organizations to choose between commenting in any manner through their work on what the prevailing issues of the day may be and gaining public or private funds to do their work? Could this be the harbinger of a forced conservatism in the arts, because so many companies cannot survive without the infusion of donated funds?
It’s worth noting that the National Endowment for the Arts felt it necessary to make clear it had not supported The Public’s Julius Caesar:
The National Endowment for the Arts makes grants to nonprofit organizations for specific projects. In the past, the New York Shakespeare Festival has received project-based NEA grants to support performances of Shakespeare in the Park by the Public Theater. However, no NEA funds have been awarded to support this summer’s Shakespeare in the Park production of Julius Caesar and there are no NEA funds supporting the New York State Council on the Arts’ grant to Public Theater or its performances.
The issue evolving with Caesar in Central Park is the canary in the coal mine, and an emblem of the potentially Faustian bargain one strikes when asking for major donations. Fortunately, The Public can sustain itself even with hundreds of thousands of dollars of lost support, but they are among the largest of theatres in the country. Indeed, they may take a page from the political playbook and raise new funds off of this action against their work. But smaller companies might not be so well positioned, resulting in a flight to safer work to avoid what has just happened. Strangely enough, it is the commercial theatre, which relies solely on ticket sales for revenue, which may be in the safer position to make political statements, as was the case with the cast of Hamilton sharing thoughts with Mike Pence. Their contract is directly with the audience, and if the work finds partisans for partisan messages, then the shows will run.
Vastly more people will hear about the Trumpian Caesar than can possibly see it. They will form opinions based on media accounts, and they can and will debate whether it’s right or wrong, proper or improper, wise or foolish to stage a show in which a presidential stand-in in killed, even in the context of a classic work, taught in many high schools, where few will be surprised by the emperor’s untimely end. But the actions of Delta and B of A, especially at a time when the administration in Washington has expressed a desire to shutter both the National Endowments for the Arts and Humanities, risk being the first steps in a new cultural McCarthyism. That serves no one who believes in free expression, whatever they have to say, no matter how ugly or difficult what they have to express may be to hear, no matter what their politics may be. Everyone should be concerned.
UPDATE: June 12, 2017, 5:30 pm: The Public Theater released a statement this afternoon in response to the controversy surrounding Julius Caesar. It reads, in full:
We stand completely behind our production of Julius Caesar. We recognize that our interpretation of the play has provoked heated discussion; audiences, sponsors and supporters have expressed varying viewpoints and opinions. Such discussion is exactly the goal of our civically-engaged theater; this discourse is the basis of a healthy democracy. Our production of Julius Caesar in no way advocates violence towards anyone. Shakespeare’s play, and our production, make the opposite point: those who attempt to defend democracy by undemocratic means pay a terrible price and destroy the very thing they are fighting to save. For over 400 years, Shakespeare’s play has told this story and we are proud to be telling it again in Central Park.
UPDATE: June 12, 2017, 7:00 pm: The Dramatists Legal Defense Fund has issued a statement of support for The Public Theater. It reads, in part:
Good taste is a matter of opinion and an “intention to provoke” may be an integral part of a play’s mission. The works of Shakespeare are replete with representations of regicide, and potentially objectionable and graphic violence of all sorts, but Delta doesn’t appear to have had a problem with the “values” or “taste” of such depictions before. The fact is that, for hundreds of years, this particular play has been understood to be a critique of political violence, not an endorsement of it. As director Oskar Eustis explained, “Julius Caesar can be read as a warning parable to those who try to fight for democracy by undemocratic means. To fight the tyrant does not mean imitating him.” So those criticizing this production for endorsing violence against President Trump seem to be willfully misinterpreting it, for their own political ends.
UPDATE: June 13, 2017, 8 am: From Oskar Eustis’s remarks before the opening night performance of Julius Caesar on June 12:
Julius Caesar warns about what happens when you try to preserve democracy by non-democratic means and again, spoiler alert, it doesn’t end up too good. But at the same time, one of the dangers that is unleashed by that is the danger of a large crowd of people manipulated by their emotions, taken over by leaders who urge them to do things that not only are against their interest, but destroy the very institutions that are there to serve and protect them. This warning is a warning that is in this show and we’re really happy to be playing that story for you tonight.
What I also want to say, and in this I speak, I am proud to say for The Public Theater past, present and I hope future, for the staff of The Public Theater, for the crews at The Public Theater, for the board of directors of the Public Theater, for Patrick Willingham and myself, when I say that we are here to uphold the Public’s mission, and The Public’s mission is to say that the culture belongs to everybody, needs to belong to everybody, to say that art has something to say about the great civic issues of our time and to say that like drama, democracy depends on the conflict of different points of view. Nobody owns the truth. We all own the culture.
April 5th, 2017 § Comments Off on In Minnesota, Change Play’s Title Or Lose A Production? § permalink
Poster for Langston Hughes’s “Mulatto” in 1935
If you happen to have been giving any thought to producing Langston Hughes’s 1935 play Mulatto at the Ames Center in Burnsville MN, save yourself some time and either move on to another play or another venue. Why? Because the Ames Center is uncomfortable with the word “mulatto,” and won’t approve it in the title of an offering in their building. Hughes’s stature, and the fact that the Black Repertory Group in Berkeley play produced the show as recently as 2015, probably wouldn’t make any difference.
How do we know this, since the scenario above is hypothetical, in addition to being awfully specific? Because the city-owned Ames Center recently vetoed a production of the play Caucasian-Aggressive Pandas and Other Mulatto Tales, by biracial actor and playwright Derek “Duck” Washington, to be produced by the Ames Center’s resident theatre company, the Chameleon Theatre Circle. The Center cited “mulatto” as the problem, saying they would only allow the play to be done if the word was removed from the title. Caucasian-Aggressive Pandas had already been a hit at the Minnesota Fringe Festival in 2016, after first being produced locally in 2015. That it is Washington’s exploration of his own heritage and his relationship to a relatively archaic racial term, one which is admittedly at its root derogatory in nature, was no defense as far as the Center was concerned. Washington refused to alter the title.
Partly as a result of the dispute over Washington’s play, but with other factors at play as well, Chameleon, a 19-year-old professional non-Equity company which has been a tenant in the Ames Center’s black box theatre since it opened in 2009, will not be renewing their relationship with the venue. Chameleon is currently seeking a new home base in the greater Minneapolis area. The future life for Caucasian Aggressive Pandas is uncertain.
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Multiple dictionary definitions of “mulatto” designate it as both a dated and offensive word, which specifically denotes someone who is the child of one white parent and one black parent. While The Atlantic headlined an article “Mulatto is not a cool word” in 2016, they did so in writing about a website and video series entitled “Evoking The Mulatto”, which describes itself as “examining black mixed identity in the 21st century, through the lens of the history of racial classification in the United States.” At the same time, some worry about the ongoing trope of “the tragic mulatto,” explored by many sources, including The Root back in 2011. It is not as loaded as the n-word, but it’s not a word to be thrown about thoughtlessly.
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Kirsten Wade, Matthew Kessen, Derek “Duck” Washington, Suzanne Victoria Cross and Ted Femrite in “Caucasian Aggressive Pandas and Other Mulatto Tales” (Photo by Bob Alberti)
The dispute over the play came to light when, after several months of negotiations between Chameleon and the Ames Center for their year to year contract, told Washington for certain in mid-March that the play would not be permitted to go forward without a title change. Washington had previously informed Scott Gilbert, chair for season selection for the company, that he would not change it.
Both G.J. Clayburn, Chameleon’s board chair, who represented the company in negotiations, and Brian Luther, executive director of the Ames Center, which is operated by the company VenuWorks for the city of Burnsville, agreed that part of the annual contract renewal between the companies includes the submission of titles. Luther described this process as a matter of insuring that at least 50% of the titles in the Chameleon season would, he said, “have the opportunity to sell tickets,” referencing the need for a “balanced season.” Neither Luther nor Clayburn cited any contractual language that permitted the Ames Center to simply veto work over title or content so long as this threshold was met.
In response to the final decision, Washington decided to send an open letter to Luther at the Ames Center, as well as to the mayor, the city manager and the city council. It read in part:
I was really excited by the proposal to bring the show to Burnsville as I had so many people come up to me after performances or throughout the Fringe Festival telling me they wished I could bring the show out of the city to their home towns in the suburbs. They felt it would be very valuable to their communities and that this tale of race would have a positive impact on their residents regardless of their demographic background. This made Burnsville an optimal place to launch the show after two successful runs in Minneapolis…
I’m told that members of the city took concern with the word “mulatto” being in the play’s title. Mulatto is a word that represents someone that is the offspring of a white parent and a black parent. It is deemed by many to be a derogatory word, as its origins stem from a Spanish or Portuguese work for mule, which is the cross between a horse and a donkey. The show does not ignore the word’s derogatory origins and in fact addresses them in the first few minutes of the show. In a large way discussing those origins is a lot of what the show is about. As a person who is both black and white it is a word I still hear even if it isn’t quite as present in the modern vernacular. I put a lot of thought behind this word when writing this show. Could I have changed it “Mixed Race Tales”? Possibly, but it is a show specifically about my experiences of being both black and white. I felt like saying “Mixed Race Tales’ included a much larger subset of people whose experiences may or may not have represented my own….
So when I was asked by the city if I would change the title, I said no. Not only did it not make sense for the show, it also meant it would be difficult to leverage the show’s previous success operating under that title. Before the Fringe I did have one or two people express concern about the word which I believe I was able to lessen with a few sentences of conversation.
It should be noted that all parties acknowledge that Washington had no direct communication with any city officials. He spoke with Scott Gilbert, who spoke with the company’s executive producer Andrew Troth and with Clayburn, and Clayburn spoke with Luther at the Ames Center. Did Luther communicate with city officials about the show’s title? In an e-mail to Arts Integrity, Luther wrote, “Ames Center staff handles all show and performance decisions. However, if questions arise that may impact the City more generally, we make sure City representatives are aware. The decision regarding this show was ours, but the City supported that decision.”
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Derek “Duck” Washington in his play “Caucasian-Aggressive Panda and Other Mulatto Tales” (Photo by Bob Alberti)
As noted above, no one could cite contractual language which gave the Ames Center approval of titles due to the nature of of their content, only that a certain number would be perceived as generally marketable. In confirming that, Luther wrote, “There was no intention to censor the show, or stop it from being performed. The only concern was with the use of an offensive term in the title. Being our facility is owned by a public entity, we need to be mindful of what goes up on our marquees, in our publications, displays, etc. It is a reflection of the entire City. As you can imagine, it’s a challenge to balance the rights of members of our community (who may not wish to be subjected to language they find offensive), with artistic license. We made what we thought was the most appropriate decision for our facility.”
Despite his assertion that there was no intention to censor, that’s precisely what the Ames Center did. Indeed, as the property of a government entity, which did not stipulate conditions under which Chameleon would not be permitted produce a show beyond specific sales concerns for a portion of their season, their apparently successful effort to quash the work since they could not alter it is an act of suppression of speech.
It would be interesting to know what the Center or the City might make of Branden Jacobs-Jenkins An Octoroon, a critically acclaimed, widely produced work that utilizes another archaic and derogatory term for a mixed race individual. Even with their right to determine what’s marketable, the only programming caveat in the contract, Ames would be hard pressed to say that it’s not a popular title right now. As it happens, Chameleon performed The Vagina Monologues the year before they moved to the Ames Center. Would Luther and his staff have been similarly cautious about putting that title on his marquee? Clearly some people have taken exception to the term for a woman’s genitalia being made part of everyday parlance in the way that show most certainly has done.
Both Clayburn and Washington mentioned that earlier this year, a performance by the comedian Ralphie May at the Ames Center had been controversial, with Washington specifically noting that the local Native American community had been upset over some portion of its content; no one cited the specific material to which objection was taken. But one performance should not cause the Ames Center to retreat into safety. In the case of Caucasian-Aggressive Pandas, there was the opportunity, with plenty of advance time, to contextualize the work, rather than suppressing the voice of a mixed race artist whose very work, based in his own experience, was grappling with the implications of the word he chose to use in his title. A performing arts center afraid of work and discussions about race is an arts venue out of step with creative and social conversations that pervade the country.
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Andrew Troth, executive producer of Chameleon Theatre Circle, in an e-mail, wrote that Chameleon won’t have a singular venue for their next season and that, “Nobody knows right now what Chameleon’s situation will be after that.” He explained that Pandas is not currently scheduled as part of their upcoming season because of their vagabond status. “Part of the appeal if co-producing [Pandas] with us,” he wrote, “was the opportunity to present it outside of Minneapolis, where he has already had two successful runs of the show. Having walked away from our resident status in the Ames Center, and given the absence of alternate venues in close proximity, it is not clear that we will be able to offer that benefit in the future.”
He went on to write:
I will say this much on a personal basis: I find nothing to contradict or disagree with in Duck’s public letter. I consider him a friend, I admire his work, I was excited to include his show in Chameleon’s intended season, and I utterly disagree with the decision by management at Ames and the City to disallow it. It is my view that in deciding to move our productions elsewhere, Chameleon has exercised the only leverage available to us in response to the Ames Center’s multiple points of disagreement with our season plan.
Certainly Chameleon has stood up for their rights to produce work they feel is worthy, and will now struggle through the process of finding a new home for their work to insure its creative integrity in the future. But in the meantime, Duck Washington’s opportunity to reach new audiences with Caucasian-Aggressive Pandas and Other Mulatto Tales is on hold, as a result of the Ames Center’s effort to avoid giving offense to anyone. In doing so, they censored the work; they wouldn’t permit it on their small stage or on their signage, because avoidance was simpler than engaging with the work and supporting the artist and his collaborators.
The Ames Center may be a beautiful facility, but it has demonstrated that it is one without a core commitment to all manner of arts, only those which are broadly popular and anodyne. That doesn’t serve the arts nor does it serve their community. Because they imposed their will without benefit of a contractual agreement to permit such oversight, they have violated the free speech rights of Washington and of the Chameleon company. What will they deprive Burnsville of next?
Update, May 4, 2017: Chameleon Theatre Circle today announced their dice-show 2017-18 season, which will be produced in a number of venues in the greater Minneapolis area following, their break with the Ames Center in Burnsville MN. The season will conclude, as originally planned, with Caucasian-Aggressive Panda and Other Mulatto Tales by Duck Washington, directed by Jena Young, in the Black Box Theatre at the Bloomington Center for the Arts in Bloomington MN. The new home for Pandas is less than ten miles away from the censorious Ames Center.
Correction, April 5, 2017: Andrew Troth was originally referred to as artistic director of Chameleon. His correct title now appears above.
New York, NY, November 3, 2016 – Music students at The Juilliard School gave a well-received sunrise performance – “God Loves Jazz” – this morning on West 65th Street, on the eastern side of the entrance to the storied performing arts academy on the Lincoln Center campus. Their instrumentation included brass, wind and string performers. The Juilliard contingent was joined by students from the nearby La Guardia High School for Performing Arts, who added vocals to certain musical selections, which included “The Star Spangled Banner,” “Amazing Grace,” “When The Saints Go Marching In” and “Take The A Train.”
Almost as if to disrupt the spirited, seemingly spontaneous concert, a trio of outlandish performance artists, purporting to represent a so-called “church,” took up a location opposite the students, on the west side of the entrance, each brandishing multiple placards quoting select bible verses and claiming that God opposes, specifically, LGBTQ and Jewish people. One wore a hoodie displaying the URL of a website which is apparently dedicated to the principle that God hates America. Fortunately, despite the strenuous yet charmless vocal efforts of the “church” group, the Juilliard performance more than overwhelmed any effort to disrupt it.
A number of New York police officers attended the performance to insure that the sidewalk would not be blocked for passers-by. To achieve that objective, the NYPD cordoned off each performance group using the often-seen “bicycle rack” dividers. The three “church” representatives, who seemed to revel in their one-note portrayals, were spaciously accommodated with room to spare in their pen. The Juilliard/La Guardia contingent grew sufficiently large that the police obliged them by twice expanding their area, which was initially equal in dimension to that provided to the “church,” and still other students massed outside of it. At its peak, roughly five dozen people were in the Juilliard performance space.
A highlight of the Juilliard set was a new arrangement of a vintage pop tune. Quite remarkably, sheet music revealed that the piece was titled in tribute to the so-called church, almost as if the simultaneous performance was expected. Its name: “Rick Rolling The Westboro Baptist Church.”
The students may well have been missing class or giving up precious sleep to entertain the public, but their exuberance and skill met with great approval from those who were lucky enough to happen upon the performance. The music even inspired one Juilliard dance student to display her skills by dancing on a bench just across 65th Street from the musicians. As the for the “church,” their reactionary, confrontational act, which they have been performing around the country, could be mistaken as a parody of small minded hate group, if only there were any levity or wit to their repetitive text.
While the streets of New York are open to all for self-expression, The Juilliard students showed that they are more than ready for the appraisal of both New York residents and tourists. The competing act met with no visible or vocal approval. The ragtag performance art “church” troupe might do well to go back to where they came from, where perhaps they might find more like-minded audiences.
Addendum, November 3, 12:30 pm: I did not mean to cast aspersions on Kansas, as I truly had no idea where this “church” is actually from until I received some responses to this post. I was employing the time-worn riposte, “Why don’t you go back to where you came from?” figuratively, not literally.
To be clear from the very start, two points. Judi Honoré, the owner of Shakespeare Books & Antiques in Ashland, Oregon, has every right to display anything she chooses in the window of, or for that matter anywhere in, her store. The Oregon Shakespeare Festival, also located in Ashland, Oregon, has every right as an organization to express its institutional opinion about events locally or nationally as it sees fit, and to align its business practices accordingly.
These rights, however, came into conflict this summer, when a window display of banned books at Shakespeare Books & Antiques, which has been in place (albeit with rotating inventory) for the past several years, was perceived by members of the OSF company as making a racial commentary about a current OSF production. Specifically, the origin of the dispute arose from the juxtaposition of an edition of Little Black Sambo to a collection of L. Frank Baum’s Oz books, while OSF was producing The Wiz, the retelling of The Wizard of Oz with an all-black cast.
The controversy has extended throughout the summer, and continues to simmer. OSF is still developing plans for a town hall meeting intended to allow members of the community to share their opinions of what has emerged from expressions of discomfort over the window display and its significant aftermath. But before that happens, on Monday October 31, Shakespeare Books & Antiques will close. So how did this come to pass, that ideals of social consciousness and free speech became seemingly oppositional positions?
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For those unfamiliar with the children’s storyLittle Black Sambo, it recounts a simple, non-realistic tale of a child who is sequentially threatened by a group of tigers into parting with all of his clothes, then driven up a tree, after which the tigers fall to squabbling and end up chasing one another by their tails at the base of the tree until they somehow melt into butter, which is then brought home by the child and used by his mother to make pancakes for the family. The book, by Helen Bannerman, first appeared in 1899 in England, and has been republished and retold in numerous editions ever since.
While the original preface stated that it was written by “an English lady in India, where black children abound and tigers are everyday affairs,” some versions employ illustrations more evocative of Africa, while others conflate the two. The depiction of Bannerman’s little boy and his family has also varied widely, from relatively realistic to grossly stereotypical, with some editions employing iconography more akin to those often seen in the early 20th century American South, as also seen in a 1935 animated short based on the story.
Within decades of its appearance, LBS, while one of the relatively few children’s books with a black protagonist, was increasingly perceived as racist. Langston Hughes cited the book as being of the “pickanninny variety,” writing that the name “Sambo” was “amusing undoubtedly to the white child, but like an unkind word to one who has known too many hurts to enjoy the additional pain of being laughed at.” Even after LBS began to be removed (and banned) from schools and libraries, the name was taken up by a chain of US restaurants, started in California in 1957 as their brand, growing to more than 1,100 outlets by the 1970s before collapsing (after an attempted rebranding) in the 80s.
New editions of LBS have continued to emerge, with some making efforts to address the racial portrayals, particularly with regards to the illustrations, including some which have sought to more accurately bring accuracy to the setting of India. But the name remains a racial slur in the minds of many people, as it already was when the book was first published.
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Portion of banned books display at Shakespeare Books & Antiques in Ashland, Oregon in September 2016
The context for the display in the Shakespeare Books & Antiques (SBA) window is provided by two signs. The first, shown within a frame in the display itself, reads:
BOOKS REFLECTING THE HISTORY OF RACISM IN THE UNITED STATES
Our position is that these books should still be available to read during these critical time [sic]. As Scott Parker-Anderson so eloquently wrote for the Library of Congress, “The truth about the past can make people uncomfortable, but it does not change the truth. There were slaves, they were treated horribly, and called horrible names. Those are the facts, that cannot be changed. REMEMBER, those that forget the past are doomed to repeat it.”
The second sign, affixed to the window, reads:
BANNED BY SOMEONE, SOMEWHERE, SOMETIME
We believe attempts to censor ideas to which we gave access, whether in books, magazines, plays, works of art, television, movies or songs are not simply isolated instances of harassment by diverse special interest groups. Rather, they are a part of a growing pattern of increasing intolerance which is changing the fabric of America. Censorship cannot eliminate evil, it can only kill freedom. We believe Americans have the right to buy, stores have the right to sell, and authors have the right to publish constitutionally protected material.
In a photo of the SBA window dating from the start of the dispute, two LBS books can be seen: one an edition of the original story, the second an apparent sequel by a wholly different author and illustrator, Little Black Sambo and the Monkey People. It is the former which is placed adjacent to the Oz books and a framed list of the many Oz titles. Also visible, but only by their spines, are Uncle Tom’s Cabin and a collection of the Uncle Remus stories.
Describing other parts of the display, Honoré, in an interview, said, “The Color Purple may have been there at the time, but I’m really not sure.” She went on to list the aforementioned books, as well as two copies of Huckleberry Finn and To Kill A Mockingbird.
The placement and proximity of LBS and the Oz books first came to light when four ASF company members, including actors from The Wiz company, which at the time was still in rehearsal, went to speak with Honoré in June. The accounts of the conversation given by Honoré and Ashley Kelley, one of the actors present, are fairly similar.
In Honoré’s description:
Middle of July, four actors were outside looking in my window. I didn’t know they were actors, they were just four black people. I went outside like I usually do and said, ‘Can I explain to you why any of these books are banned?’ and they said, ‘We’re actors in a play called The Wiz, which is playing here, and it’s an all-black cast and we object to the fact that you have Uncle Tom’s Cabin, Little Black Sambo, Huck Finn, To Kill a Mockingbird, these books right next to the Wizard of Oz book. Why do you have them that way? What kind of message are you trying to send?’
I said, ‘I’m not trying to send any message, they’re all just banned books. They said, ‘Well, we feel you’re trying to send some kind of a message,’ but I still don’t know to this day what kind of message I was supposed to be sending. I honestly don’t. But they saw me sending some horrible message by having them in that order. So I said, ‘Why don’t you come in and what we’ll do together is we’ll move them. If you’re that offended and you feel bad about it, we’ll move them together.’
Honoré notes that in moving the books, they were never removed from the window, but merely relocated away from the Oz books.
Via e-mail, Kelley described the encounter with Honoré as follows:
We went inside to talk to Ms. Honoré and we proceeded to have a peaceful conversation. We asked her what the inspiration was for the display and she began explaining the history of the books, not understanding what we meant. I told her specifically that I’m sure it wasn’t intentional but unfortunately the display as it stands is making negative commentary about the people in her community. Still not understanding, I explained to her that The Wiz was happening across the street which is the African American version of The Wizard of Oz.
She claimed she didn’t know there was such a version or that OSF was doing it. I told her that THAT was why we are offended by the display, the placement of these books that exploited African Americans next to the entire Wizard of Oz collection. I stressed again that I didn’t believe it was intentional but that unfortunately whether she knew or not it was making a statement. She kept defending why she had the black books to us and I in turn responded by telling her it wasn’t about the fact that she had those books and that I understand why she has them in the first place. My only issue was that they were next to all the Oz books…that’s all.
She finally understood and asked me what to do. Then SHE came up with an idea to move the books from the window and asked us if we would like to help. We said yes, walked inside with her and helped her move the books elsewhere. After that we stood with her for a while talking about her background and had a very pleasant conversation. We introduced ourselves. I thanked her for listening and for talking to us. We hugged and left her store.
After this, I sent an email to my cast to tell them about the positive experience I had with Ms. Honoré and that it was a very proud moment especially with all the horrible things happening with people of color all over the country and even in our town.”
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Shakespeare Books & Antiques (from their website)
If that had been the end of the issue, with hugs, it would indeed stand as a positive moment for all concerned. But things quickly became complicated.
Ashley Kelley expressed surprise as to the fallout, writing:
It was brought to my attention weeks later that the display had been put back and that Ms. Honoré was upset with me for telling people what happened at OSF…which I didn’t understand because the email was a positive representation of her and the bookstore because we were able to peacefully talk and come to a solution. Then all of a sudden there were SO many people involved and the story seemed to shift to “we asked her to remove the books from the store.” which was NOT the conversation at ALL.
I was honestly very disappointed in how such a positive moment turned sour based off of lack of communication it seems. I was under the impression that everything was handled after my initial encounter with her. Little did I know there were more conversations, other emails, letters, etc. that I had no involvement in.
Claudia Alick, the community producer at OSF, who also chairs the company’s Diversity and Inclusion Planning Council, said in an interview that after learning of the encounter, she had discussed the conversation at the bookstore between the company members (three of whom were actors and one staff member, per OSF’s press office) and Honoré in a “healthy conversation” with Cynthia Rider, OSF’s executive director, who indicated that she wanted to speak with Honoré. Alick said she then went home to prepare an agenda for that conversation.
That same day, Rider called Honoré, asking to meet and discuss what had occurred. Honoré says that Rider said, “I’d like to discuss with you your banned book — she didn’t say banned book, she said your public window display — and protecting my staff. That was her exact language.” Honoré then describes her decision not to wait for a meeting with Rider at the store, and instead closing the shop and heading straight to OSF to ask for an immediate meeting with Rider. She ultimately met with Rider and with general manager Ted DeLong in an impromptu session. Alick had already left the OSF campus.
Julie Cortez, communications manager of OSF, relating Rider’s impression of the meeting, wrote that, “While Cynthia says Judi seemed upset when she arrived, by the end of the meeting their relationship seemed cordial.” Honoré describes the meeting as more problematic, saying, “I knew I was in deep trouble when Ted DeLong [OSF’s general manager, who also attended] said he thought Huck Finn was a horrible book.” Honoré says she was asked to remove the books from the window.
Further describing the meeting, Honoré recalled, “I said, ‘If you have a group of students and they’re really dumb and you keep telling them they’re really smart they will become smart. Vice versa if you have a group of students who are really smart, you keep telling them they’re dumb they will become dumb. If you have a sweet little town like Ashland and you keep calling us racist, it will become racist. I think the positions you guys have been taking have been incorrect.’ I don’t think they appreciated that much.”
* * *
Some may recall that Ashland and Oregon Shakespeare Festival were in the news this summer for another racially based incident, which was widely shared on social media and subsequently reported in mainstream media outlets. In that case, a man verbally attacked a black actor in the OSF company as she walked down the street, shouting, “It’s still an Oregon law. I could kill a black person and be out of jail in a day and a half. The KKK is still alive here.”
News reports indicated that the man who threatened the actress was likely a local homeless man who was known to the Ashland Police for other aggressive actions. The police determined, according to a report in the Mail Tribune, that “no crime had been committed,” even as they were “decrying this hateful speech.”
Asked about that incident, vis a vis the conversations over her window, Honoré was dismissive, saying, “One black actress was apparently yelled at by our town schizophrenic who said horrible things, but he yells at everybody, including me. If I don’t give him a dollar, he’ll say something like, ‘I’m going to kill you.’” She went on to volunteer, “They said the police officers were picking them up for no reason whatsoever, and they had to ride around in a car with a white person or they felt like they’d be targeted and get picked up. None of that is true. I mean I know our little sweet town and that doesn’t seem to happen here. And then they also said that if they go into a store and they’re asked more than once, ‘Can I help you,’ they’re being targeted for shoplifting.”
However, that incident happened in late June, subsequent to the meeting between Rider and Honoré, but before the dispute between SBA and OSF became widely known.
* * *
Immediately following the meeting between Honoré and Rider, Honoré says she went back to her store, upset at learning about the e-mail that was circulated and Rider’s original request to come to the bookstore and discuss the display. So she returned LBS to its original location in the window.
“Honestly, I felt like I was either sandbagged, slapped in the face or backstabbed, when they went back to OSF after I felt I had done something really nice for them. After I had temporarily moved it, then I put it back where it was. But that was for maybe a day, and then I thought better of it and I moved them way to the end again.”
Claudia Alick subsequently visited the store and had her own conversation with Honoré, who Alick says recounted her studies in college (Honoré attended UC Berkeley in the late 60s and early 70s, where she wrote her thesis on sexism and racism in textbooks) and repeatedly protested, “I am not a racist.”
Alick says that after listening to Honoré for ten minutes, she interjected, “I never said you were a racist. Nobody said you were a racist. Those words haven’t come out of anybody’s mouth. I just wanted to know what was the decision made, because I think that I might have a different understanding of that decision, because you put the display back and I’m confused by that. And so then there was another ten minutes where she finally admitted that she was pissed and those were her words. She was pissed at the actors for – and in her words it was for – ‘sending nasty e-mails about me.’”
In a separate interview, OSF artistic director Bill Rauch spoke to the issue of leveling charges of racism at anyone:
[LBS] is a much beloved story for many, many people, especially older people who either had it read to them by their parents or read it to their own children. That’s come up again and again and again. Some of the emotion people have felt has been that by OSF saying, ‘We do not support the juxtaposition of those original racial caricature drawings on the cover of that book being juxtaposed next to The Wizard of Oz,’ they felt that we were personally attacking a story that was a beloved part of their childhood and therefore somehow calling them racist for liking that story.
Alick says she informed Honoré that, “It’s interesting that you said those e-mails were nasty. I can share with you that it was just them sharing their own personal experience and they didn’t say anything that was negative or nasty about anyone. It was actually pretty generous and kind framing and language that was used to describe what happened.”
According to Alick, after further conversation with Honoré about how the display might prove troubling not just to artists but to any persons of color walking down the street, Honoré asked, “What do you want us to do?” Alick says she responded, “No, we’re not going to tell you what to do. I just wanted to get clarity about what you were doing. You get to decide what you’re going to do.”
Alick says she was aware of other OSF staff members having one-on-one discussions with Honoré, emphasizing that they were private, personal communications. But Alick says that, “[Honoré] started coming to the festival, and stopping people of color and – I’m going to use the word harassment – harassing them, saying ‘Aren’t you in The Wiz? Well this, this and this.’ She did the same thing to me, where she stopped me on the street and had just a really kind of gross exchange with me that wasn’t kind, that was so problematic. And so organizationally, people of color asked essentially, ‘Hey, would you please do something?’ We’re like, ‘Well, the only thing we can do is let her know privately we won’t be doing business with you. We won’t be investing in your services in the future because you’re treating our company members this way.’ It wasn’t a comment on her public display. It was a comment on her direct behavior with our company members.” She later added, “We didn’t do anything public.”
Honoré recounts writing a letter to Rider on July 18, in which she set out the events regarding the window display and all that had transpired much as described here, adding her account of a positive conversation with another OSF actor of color regarding the display, which had prompted her decision to once again shift the Sambo book away from the Oz books. She also expresses deep upset with all that has occurred, including being called a racist by someone she describes as an OSF actor. She concluded the letter by writing, “In my opinion, Ashland, and this includes our residents and our police department, are profoundly inclusive and make every effort to reach out to everyone, as are the merchants of this very special small town.”
* * *
On July 26, Rider sent the following letter to Honoré:
I am in receipt of your letter of July 18 describing your recent experiences with OSF staff and actors regarding your display window.
For myself, my colleagues in senior management, and those most deeply involved in the work of expanding diversity, equity, and inclusion here at OSF and in Ashland, the most important facts, which you allude to in your letter, are as follows:
You received feedback from various OSF staff members, who are by definition your fellow community members, that your window display that included blackface caricatures was hurtful and offensive due to their racist origins.
You removed the display.
You heard reports that emails were circulating at OSF regarding this chain of events, and decided to reinstall the display.
Through these events, you have demonstrated a distinct lack of empathy for the experiences of the people of color who brought this matter to your attention and their reactions to your display, and reinstating the display caused continued pain to those individuals and by extension to the Oregon Shakespeare Festival.
Because of this, I am by this letter informing you that Artistic Director Bill Rauch and I have given instruction to our staff not to patronize Shakespeare Books & Antiques for any Festival-related goods or services until further notice.
* * *
On August 4, the dispute between Honoré and OSF went fully public, in an article in the Daily Tidings (reprinted the following day in the Mail Tribune), resulting from Honoré sharing Rider’s letter with the paper. This marks the first time the word “boycott” appears to have been used in connection with the situation. The article also mischaracterizes Rider’s letter as a “ban on OSF staff purchasing items from the store,” instead of the actual language, which only proscribed staff from making purchases on behalf of OSF at the store. This occurred despite the article later quoting a letter to the editor from Rider and OSF artistic director Bill Rauch clarifying that they had not called for a boycott. But that became the prevalent narrative for the ensuing weeks.
While various letters to the editor played the dispute out in the local papers, as people took sides, the next major account of the situation came slightly less than four weeks later, when on August 30, the Daily Tidings reported that Honoré had decided to close her store, giving two months notice to her landlord for a closing on October 31. Honoré attributed the closing to a significant drop in business in the month of August, as well as the stress of responding to the conflict that had arisen with OSF. She said that in contrast to typical summer months, when her business averaged $20,000, her first 12 days of August yielded on $2,355 in sales and that on August 22, her total sales were $59.
In that article, the reporter John Darling included a statement from OSF, quoting it as follows,
If Judi is seeing a reduction in her business, that is either occurring for unrelated reasons or due to her decision to go public in the media and in her store windows,” the email said. “Given that OSF has only made one or two small purchases for Festival use at Shakespeare Books & Antiques over the years, the decision … was not about causing Judi financial hardship, but about communicating to our colleagues of color that we believe them and stand with them.
While Honoré in an interview described a seemingly dictatorial rule by the leadership of OSF over its staff (“She tells them what to do over there apparently and they do it,” Honoré said, referring to Rider), she was not able to provide any evidence that the OSF staff had been ordered away from her store for personal purchases. She affirmed that OSF had not revealed anything publicly about its communications with her, saying “They didn’t go public, I went public, and they’re calling the conversation I had with them a private conversation. Nobody told me that it was private.”
OSF shared with Arts Integrity a short memo they had given to “front line staff” to help answer questions from patrons about the situation, but the theatre’s first sustained public communication to the community, signed by Bill Rauch, headed, “A response to the ‘bookstore story,’” wasn’t issued until September 2.
It read, in part:
OSF has never sought publicity or media attention for its ongoing discussions with Judi about her window display. We intended privacy for all of our communications, written and verbal, prior to Judi reaching out to the Ashland Daily Tidings (a publication for which Judi’s husband is a columnist). I would like to emphasize that not once has anyone at OSF called for a public boycott of Judi’s bookstore. Our employees are, of course, always free to shop anywhere for their personal purchases, and before today we had never brought up this subject in any communications with our patrons or membership.
I stand by our decision not to do business with a person who has treated members of our company and community with disrespect. Since Judi went public about OSF’s decision, we’ve received numerous reports from staff and patrons about problematic and insensitive interactions in and outside of her store and on the OSF campus. Our attempts to continue the dialogue with her—with a mediator, if she would prefer—have gone unanswered.
Separately, Honoré said that she had asked Rider to visit the bookstore – Rider’s original intent in requesting a meeting with Honoré – but that Rider declined.
In the next to last paragraph of his community letter, Rauch wrote:
Free speech is necessary, but not all speech is neutral; all language, images and symbols are not equal. The fact that speech can be damaging must be acknowledged. As an institution and as individuals, how we use our right of free speech is a moral choice. It is not neutral to propound messages that deepen the isolation and oppression experienced by members of groups that have been historically marginalized. Propagating images that were historically stigmatizing to black people and that some people continue to experience as hurtful and stigmatizing is not a neutral act. In my view, we grow most when we listen with empathy and curiosity to all those who are different from us about their own life experiences.
* * *
It’s worth recalling Ashley Kelley’s comment about what has transpired in Ashland, “I was honestly very disappointed in how such a positive moment turned sour based off of lack of communication it seems.” In conversation and written material, both Honoré and the OSF leadership expressed the feeling that each “side” was not listening to or understanding the other. That is the very definition of a lack of communication.
The situation escalated not because of the conversation between the four company members and Honoré, but only when Rider asked to arrange to meet with Honoré, who then opted to precipitate an immediate conversation. Rider perceived that meeting as having begun in conflict but concluding well, however Honoré’s takeaway was both frustration with Rider (who she called “elitist”) and anger that the conversation about the window display had gone beyond herself and the four actors, causing her to reverse the results of that meeting.
While the original conversation between Honoré and the four company members, and the meeting between Honoré and Rider, occurred first, the late July exchange of letters between Honoré and Rider occurred after the incident in which a black actor at OSF was verbally abused. An atmosphere of concern over the treatment of people of color in Ashland had been heightened as the bookstore dispute played out over a number of weeks. As in all cases, a specific event shouldn’t be the pretext for diminishing the rights of others, but the bookstore situation was thrown into sharper relief by the intervening incident.
Bill Rauch noted, “I do think that for members of our community who feel Ashland is such a progressive community, that there can be no racism in our town, that if a person of color says they’ve experienced racism in our town that it’s the problem of the person of color, that they’re oversenstitive, that they’re being overly cautious and that the racism is not real. I think the juxtaposition of these things has triggered a lot in terms of the community response as well.”
Honoré cites Rider’s letter of July 26 as having prompted the precipitous drop in her business, claiming that other internal e-mails, which she could not produce, went beyond Rider’s instruction that staff should not do business with Shakespeare Books and Antiques. However, when she by her own admission went to the press for the story that first appeared on August 4, there was no mention of any impact on her business, only her unhappiness over what she characterized as a call to boycott her store.
Reading Rider’s letter carefully, one could argue that the language about ceasing to do business with SBA might have been somewhat differently structured. If one doesn’t read the entirety of this closing phrase – “I have given instruction to our staff not to patronize Shakespeare Books & Antiques for any Festival related goods or services until further notice” – one might only take away “given instruction to our staff not to patronize.” A statement affirming staff members’ own unfettered right to patronize the store would have been useful.
But regardless of how the letter was read, it was internal to OSF, yet Honoré says it resulted in a roughly 85% drop in business. If the staff of OSF was Honoré’s overwhelming customer base, then regardless of whether one agrees with the request to alter the display, Honoré’s choices influenced the purchasing decisions of her customers. In seeing the situation as one of social consciousness and sensitivity, OSF was well within its rights ito decide what vendors it chose to do business with, and that wasn’t a secret within the organization.
Honoré claims that in her one meeting with Rider, she was told, “Take the books out of your window or we’re going to boycott your store.” Rider denies having made such a statement. Asked whether her communication regarding OSF-related purchases wasn’t in fact an implicit message to the OSF community to not patronize the bookstore, Rider said, “That certainly wasn’t my intention.”
Was OSF advocating censorship, which presumably they would fight were such an effort directed at their own creative work? Given that they had no control over Honoré’s store, it’s hard to accept that they were, especially since the conversation only was about the placement of the books, not over whether Honoré should carry them at all. OSF was advocating to Honoré, according to their institutional imperatives and as a part of the Ashland community, sensitivity to members of the OSF company – both full time staff and guest artists – that escalated over a communications impasse. Rider observed, “Freedom of speech doesn’t mean you get to say whatever you want and nobody can tell you they’re upset about it.”
Because so many of the interactions within this dispute were person to person, it is difficult to pin down many absolutes, especially since the different parties offer differing impressions of the same event. In the fraught communications, it’s unfortunate that one possible rapprochement doesn’t appear to have been discussed. Might it have been possible for SBA and OSF to collaborate on further contextualizing the window display, so that it was clear the presence of LBS (and books like the Uncle Remus stories) was not to advance racially negative text or imagery? While Honoré absolutely has the right to display any books as she wishes, and there is no question that the books she displayed have all been officially censored at one time (or many times), a store window is not a museum or school, where history and education about featured items would usually be more fully explained.
While Shakespeare Books & Antiques will close on Monday, Honoré said that she does plan to reopen, after resting up from the stress of the past few months and getting a new business of hers, a furniture store, fully up and running. Saying that she has three times as many books warehoused as she was able to display in the shop that’s closing, she said she’d be back in a larger space. She felt some distance would put an end to the many people who were coming into her store to discuss the dispute with OSF, but not making purchases, noting that business only began to pick up when she announced she was closing.
As for further dialogue in Ashland through a town hall, which at one point was considered for Saturday, October 29, Julie Cortez of OSF said in an e-mail, “We are in discussion with the members of SOEDI (Southern Oregon Equity, Diversity and Inclusion Collaborative) about the best date to hold this community conversation, and we will keep people informed of what plans are made.” It’s too bad that the community still has to wait to process this situation together, openly, but hopefully they’ll get there soon in a way that helps everyone involved, directly or as observers, to fully appreciate and respect what’s being said and shown and read, on stage and off.
April 10th, 2016 § Comments Off on In Florida, A Voice For Censorship Holds Undeserved Prominence § permalink
When we last looked in on Ocala, Florida on March 2, the City Council had declined to take any action on the claim by local businessman Brad Dinkins that upcoming performances in city owned sites violated the terms of the venues’ leases. That came after an hour of presentations at a City Council meeting at which the majority of the speakers defended the bookings in question, while only a few voices were raised against them. As a result, a benefit performance of The Vagina Monologues and a burlesque show went on as planned.
Following the meeting, the Ocala Star-Banner quoted Council Chairman Jim Hilty as saying, “We don’t feel (we want) to ban this. We’re definitely not looking to ban anyone’s free speech. I believe at this point we have to allow the shows to go on.” The paper further noted, “In cases where performances were grossly obscene, Gilligan said the city would likely invoke the part of the contract that limits performances.”
A separate editorial in the Star-Banner, titled “A Lesson in Public Discourse,” praised the previous day’s debate. It began, “It was a good day at Tuesday’s Ocala City Council meeting. Not only was a fundamental American principle discussed and debated passionately for more than an hour and left untrampled, but it was done so in a civil manner that our presidential candidates would do well to emulate.”
Katerina Aella in The Vagina Monologues (Photo by Ralph Demilio)
So while it is not entirely surprising that Brad Dinkins remains unsatisfied by the City Council’s action, or rather lack thereof, since none was deemed necessary, it is surprising to find Dinkins garnering headlines on the same subject yet again. He’s now convinced that by standing for the constitutional rights of individuals using city owned property, things are only going to get more “adult” in Ocala.
Dinkins’ prediction: People inclined to produce adult-oriented theater or films are likely to do it again, given the council’s unwillingness to stop last month’s performances of “The Vagina Monologues” at the Reilly Arts Center and a retro burlesque rendition in the Marion Theater. “The way the trend it going it’s very likely (there will be more adult-oriented performances).” (Star-Banner, April 9)
What is remarkable about the extensive new article is that the first 13 paragraphs concern Dinkins’ position exclusively. While many voices are heard from thereafter, explaining why the City Council’s decision was appropriate and legal, the paper has allowed one single person to set the tone for a review of an issue settled a month earlier, at a point when there isn’t even a particular performance or production to debate.
Mr. Dinkins has every right to express his opinion. But why exactly does the Ocala Star-Banner have to give him a platform every time he complains about his worries and fears regarding live performance? Is Dinkins’ Ocala’s own Donald Trump, whose every utterance is worthy of attention, no matter how ill-considered?
If one reads the entire article, “Brad Dinkins still wants City Council to stand against adult shows,” it’s clear that the City Council’s actions in March were made according to local and Constitutional law. Yet now city officials are starting to parrot some of Dinkins’ concerns, and speak of looking for oversight they previously said they didn’t need.
Hilty said it’s possible future performances of adult-oriented films and plays held on publicly owned property could be coming.
“I think it can happen. They could be a little bit more emboldened now,” Hilty told a Star-Banner reporter a few weeks after the March council meeting. “But I would hope they wouldn’t go to that extreme to push the envelope.”
For now, City Attorney Pat Gilligan is reviewing the leases if they should be changed to give the council a stronger hand.
Gilligan said he wants to “give the City Council as much legal flexibility” as possible if it is to grapple over a performance it thinks isn’t compatible with the community’s values. He said the current lease gives the elected officials plenty of authority over what’s performed on city property.
This new hedging towards worry and control is contrary to the message that came out of the City Council meeting. It suggests that Ocala might be looking for legal grounds to censor creative work on city property in violation of the First Amendment. It sends a not-so-tacit message to the operators of the venues in question that they should be careful about what they present, lest they cross a line that they haven’t even come close to.
Could Brad Dinkins be laying the groundwork for a political campaign based upon his highly subjective stance on public decency? If so, it seems that city officials and the media in Ocala are only too willing to give him a hand in building his base. Admittedly, there can be value in a single voice fighting against a status quo, even when the majority think otherwise. But when that solo voice is given a disproportionate platform in order to try and subvert the Constitutionally-rooted principle of free speech, maybe it’s time for everyone to get a grip and remember: nothing illegal or even subversive has taken place in Ocala, and there’s nothing on the horizon either.
If Mr. Dinkins wants to press his cause, let him do so on a blog, or social media, or by buying ad time or space. Let him call in to talk radio if he wishes and flog his censorious efforts endlessly there. After all, in the words of the Star-Banner editorial:
In the end, the City Council appropriately took no action. And while we are pleased to see another unnecessary civic kerfuffle come to its proper end, we cannot help but be proud of how the community handled this issue — or non-issue, as it turned out.
Recapping: this “unnecessary civic kerfuffle” has come to its “proper end.” It’s a “non-issue.” No censorship. Performances in city venues continue. Move on. No matter what Brad Dinkins thinks.
The Nerds cast demonstrating good cheer in the immediate wake of their show’s shut down.
The recent flurry of conversations surrounding theatre chat rooms, prompted in large part by a blog post from Patti Murin in the wake of the premature shutdown of the musical Nerds, have been fierce. The uproar was deemed sufficiently important to rate coverage in The New York Times and there has been a flood of commentary on Twitter, on Facebook, and yes, in chat rooms themselves since the impassioned dialogue began. In the wake of Murin’s essay, BroadwayWorld.com has announced some new approaches to its chat room policies and implemented changes on its site, some of which it says were already in the works but were accelerated by the impact of Murin’s writing.
Many have applauded Murin, but plenty of others have dissented from her opinion, saying she’s advocating an effort to control what can be said about theatre productions and those who work on them. There has been criticism of BroadwayWorld for its rather quick accommodation of some of Murin’s requests. Some devotees of the chat rooms, on Broadway World at least, feel they’re being unfairly deprived of their opportunity to give voice to all of their thoughts.
Mentioned within those conversations at various points are the terms “free speech” and “censorship,” terms that also seem to figure rather prominently in some of our current political discourse. But whether in the national political arena or in the somewhat more narrowly defined community of theatre fandom, the terms are being applied somewhat indiscriminately. That suggests a refresher is in order.
* * *
The First Amendment of the U.S. Constitution reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
In an essay on the website of the National Constitution Center, Geoffrey R. Stone and Eugene Volokh write, “What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.”
It should be noted that the Constitution does not give everyone the right to say anything they want wherever they want and whenever they want. What it speaks to is the fact that the government may not inhibit people’s rights to express themselves. That means that if you own a theatre, you have the right to present the work you choose, or even the right to simply stand upon your stage and state your opinion, and the government cannot interfere. It does not mean, however, that you have to give over your venue to anyone who wishes to use it, to present their own work, or to express their own opinions.
When the government tries to stop someone from writing, or speaking, or performing work, that is an act of censorship. Censorship is, at its core, act of wielding power against speech; of using governmental authority, or some other manner of power, to shut down free expression. The definition on FindLaw.com cites it as an “institution, system or practice” against unfettered speech.
This is not to say that absolutely every form of speech is protected in absolutely every scenario or that every policy which controls speech in every circumstance in censorship. You may have heard such terms as libel, slander and defamation, for example, which are forms of speech that may be deemed intentionally and maliciously injurious to reputations. This doesn’t necessarily restrain free speech, but it can be grounds for penalties for certain speech meeting stringent criteria. You can’t, for example, engage in speech that directly incites or produces imminent lawless action.
This is hardly a comprehensive survey about the laws protecting and in some cases limiting speech. None of us have the time for that, unless one is currently in law school. But this will serve for the subject at hand.
* * *
Thank you for your patience. Now back to show biz.
No arm of the government has leapt to the defense of Patti Murin, the cast of Nerds or any artist or production that may have been spoken about unfavorably, or even cruelly, in a chat room. What has happened is that Murin made a plea, struck a chord, and Robert Diamond of BroadwayWorld – who Murin happens to know and who I know casually as well – took her words to heart and decided to take some steps to ameliorate the situation. Because he owns the company and the site, he’s entirely within in his rights to do so; BroadwayWorld is neither a public right nor a public utility. It’s all Diamond’s. In so far as how he chooses to administer BroadwayWorld, there’s nothing anyone can really do about it, unless he was, for example, fostering defamation or providing a platform for individuals to advocate illegal acts.
Those who don’t like new policies at BroadwayWorld can head to Reddit, or All That Chat, or probably any number of other places online, or set up their own theatre chat site. They haven’t had the Internet taken away from them; they’ve just had one online resource, that they’ve gotten used to using in certain ways, changed. Like any consumers faced with a product change, they can take their business elsewhere if they wish. Perhaps if too many of them do, the economic model of Broadway World will take a hit. But that’s Diamond’s decision and should it happen, Diamond’s problem. There’s no abrogation of free speech here, just the assertion of a business’s rights in order to maintain its brand.
That said, how this manner of supervision – which was always BroadwayWorld’s purview –will be administered could be tricky. Will Diamond have someone monitoring the site at all times – 24 hours a day, seven days a week? Given the potential volume of messages to be surveyed, and queries or complaints fielded, what will be considered a reasonable response time? “Snark for snark’s sake,” as stated in the site new message on its practices, isn’t a carefully articulated definition of what will and won’t be permitted to remain online, so what kind of policy manual exists or will be created, and how can it be insured that its guidelines are interpreted consistently by what will presumably be a tag team of arbiters? That’s entirely Diamond’s business too. The ongoing vitality and utility of the BroadwayWorld chat rooms will surely be judged by them. Even when the blocking of speech on a privately owned medium is entirely permissible, its equitable application in the real world can prove extremely thorny.
Part of what allows all manner of internet chat to flourish is the privacy and even anonymity the medium affords. Those who relish their incognito strafing of performers and shows have a great deal of protection, but they may do well to look at what constitutes libel, slander and defamation. If the subject of a verbal assault has a mind to really take exception to something they deem too harsh, too cruel, too just plain wrong, combined with the resources to do something about it, they may yet challenge chat room denizens and the operators of the boards. Take note of the way James Woods is currently bringing suit against a pseudonymous Twitter user for defamation, and seeking monetary damages for online remarks. What happens there could prove informative and influential.
We can always benefit from honest, open, candid, entertaining, and yes, critical conversation about the theatre. With that, there will probably always be people who have those conversations about theatre in ways that can be hurtful, cruel, and ugly. That’s regrettable to some, but that is the byproduct of living in a country founded upon the idea of open speech, and living in an era where everyone has the means to broadcast their opinions. If individuals and companies choose not to provide a forum for such dialogue (or diatribes), that’s well within their right, just as others have the right to build theatresnark.com, if they’re so inclined.
With Murin’s blog post and BroadwayWorld’s response only days old, there’s much to still play out. Some people have made some adjustments and others may have to. That’s just the way it goes when there’s effective advocacy; it’s to be seen whether a well-meaning response proves feasible and even desirable in the long term. But the bottom line is that no one’s rights have been trampled on and no one has been censored. At least so far as that aspect of this issue goes, while you’re welcome to claim your rights are being denied for as long as you like, maybe it’s time to chat about something else.
Howard Sherman is director of the Arts Integrity Initiative.
Civil and respectful comments on all aspects of this topic are welcome; all comments are moderated before they appear.
March 14th, 2016 § Comments Off on Are Any Voices Being Silenced in the Chat Room Wars of 2016? § permalink
The recent flurry of conversations surrounding theatre chat rooms, prompted in large part by a blog post from Patti Murin in the wake of the premature shutdown of the musical Nerds, have been fierce. The uproar was deemed sufficiently important to rate coverage in The New York Times and there has been a flood of commentary on Twitter, on Facebook, and yes, in chat rooms themselves since the impassioned dialogue began. In the wake of Murin’s essay, BroadwayWorld.com has announced some new approaches to its chat room policies and implemented changes on its site, some of which it says were already in the works but were accelerated by the impact of Murin’s writing.
The cast of Nerds demonstrating good cheer in the immediate wake of their show’s shut down
Many have applauded Murin, but plenty of others have dissented from her opinion, saying she’s advocating an effort to control what can be said about theatre productions and those who work on them. There has been criticism of BroadwayWorld for its rather quick accommodation of some of Murin’s requests. Some devotees of the chat rooms, on Broadway World at least, feel they’re being unfairly deprived of their opportunity to give voice to all of their thoughts.
Mentioned within those conversations at various points are the terms “free speech” and “censorship,” terms that also seem to figure rather prominently in some of our current political discourse. But whether in the national political arena or in the somewhat more narrowly defined community of theatre fandom, the terms are being applied somewhat indiscriminately. That suggests a refresher is in order.
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The First Amendment of the U.S. Constitution reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
In an essay on the website of the National Constitution Center, Geoffrey R. Stone and Eugene Volokh write, “What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.”
It should be noted that the Constitution does not give everyone the right to say anything they want wherever they want and whenever they want. What it speaks to is the fact that the government may not inhibit people’s rights to express themselves. That means that if you own a theatre, you have the right to present the work you choose, or even the right to simply stand upon your stage and state your opinion, and the government cannot interfere. It does not mean, however, that you have to give over your venue to anyone who wishes to use it, to present their own work, or to express their own opinions.
When the government tries to stop someone from writing, or speaking, or performing work, that is an act of censorship. Censorship is, at its core, act of wielding power against speech; of using governmental authority, or some other manner of power, to shut down free expression. The definition on FindLaw.com cites it as an “institution, system or practice” against unfettered speech.
This is not to say that absolutely every form of speech is protected in absolutely every scenario or that every policy which controls speech in every circumstance in censorship. You may have heard such terms as libel, slander and defamation, for example, which are forms of speech that may be deemed intentionally and maliciously injurious to reputations. This doesn’t necessarily restrain free speech, but it can be grounds for penalties for certain speech meeting stringent criteria. You can’t, for example, engage in speech that directly incites or produces imminent lawless action.
This is hardly a comprehensive survey about the laws protecting and in some cases limiting speech. None of us have the time for that, unless one is currently in law school. But this will serve for the subject at hand.
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Thank you for your patience. Now back to show biz.
No arm of the government has leapt to the defense of Patti Murin, the cast of Nerds or any artist or production that may have been spoken about unfavorably, or even cruelly, in a chat room. What has happened is that Murin made a plea, struck a chord, and Robert Diamond of BroadwayWorld – who Murin happens to know and who I know casually as well – took her words to heart and decided to take some steps to ameliorate the situation. Because he owns the company and the site, he’s entirely within in his rights to do so; BroadwayWorld is neither a public right nor a public utility. It’s all Diamond’s. In so far as how he chooses to administer BroadwayWorld, there’s nothing anyone can really do about it, unless he was, for example, fostering defamation or providing a platform for individuals to advocate illegal acts.
Those who don’t like new policies at BroadwayWorld can head to Reddit, or All That Chat, or probably any number of other places online, or set up their own theatre chat site. They haven’t had the Internet taken away from them; they’ve just had one online resource, that they’ve gotten used to using in certain ways, changed. Like any consumers faced with a product change, they can take their business elsewhere if they wish. Perhaps if too many of them do, the economic model of Broadway World will take a hit. But that’s Diamond’s decision and should it happen, Diamond’s problem. There’s no abrogation of free speech here, just the assertion of a business’s rights in order to maintain its brand.
That said, how this manner of supervision – which was always BroadwayWorld’s purview – will be administered could be tricky. Will Diamond have someone monitoring the site at all times – 24 hours a day, seven days a week? Given the potential volume of messages to be surveyed, and queries or complaints fielded, what will be considered a reasonable response time? “Snark for snark’s sake,” as stated in the site new message on its practices, isn’t a carefully articulated definition of what will and won’t be permitted to remain online, so what kind of policy manual exists or will be created, and how can it be insured that its guidelines are interpreted consistently by what will presumably be a tag team of arbiters? That’s entirely Diamond’s business too. The ongoing vitality and utility of the BroadwayWorld chat rooms will surely be judged by them. Even when the blocking of speech on a privately owned medium is entirely permissible, its equitable application in the real world can prove extremely thorny.
Part of what allows all manner of internet chat to flourish is the privacy and even anonymity the medium affords. Those who relish their incognito strafing of performers and shows have a great deal of protection, but they may do well to look at what constitutes libel, slander and defamation. If the subject of a verbal assault has a mind to really take exception to something they deem too harsh, too cruel, too just plain wrong, combined with the resources to do something about it, they may yet challenge chat room denizens and the operators of the boards. Take note of the way James Woods is currently bringing suit against a pseudonymous Twitter user for defamation, and seeking monetary damages for online remarks. What happens there could prove informative and influential.
We can always benefit from honest, open, candid, entertaining, and yes, critical conversation about the theatre. With that, there will probably always be people who have those conversations about theatre in ways that can be hurtful, cruel, and ugly. That’s regrettable to some, but that is the byproduct of living in a country founded upon the idea of open speech, and living in an era where everyone has the means to broadcast their opinions. If individuals and companies choose not to provide a forum for such dialogue (or diatribes), that’s well within their right, just as others have the right to build theatresnark.com, if they’re so inclined.
With Murin’s blog post and BroadwayWorld’s response only days old, there’s much to still play out. Some people have made some adjustments and others may have to. That’s just the way it goes when there’s effective advocacy; it’s to be seen whether a well-meaning response proves feasible and even desirable in the long term. But the bottom line is that no one’s rights have been trampled on and no one has been censored. At least so far as that aspect of this issue goes, while you’re welcome to claim your rights are being denied for as long as you like, maybe it’s time to chat about something else.
Howard Sherman is director of the Arts Integrity Initiative at The New School College of Performing Arts. This post originally appeared at artsintegrity.org.
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A number of New York police officers attended the performance to insure that the sidewalk would not be blocked for passers-by. To achieve that objective, the NYPD cordoned off each performance group using the often-seen “bicycle rack” dividers. The three “church” representatives, who seemed to revel in their one-note portrayals, were spaciously accommodated with room to spare in their pen. The Juilliard/La Guardia contingent grew sufficiently large that the police obliged them by twice expanding their area, which was initially equal in dimension to that provided to the “church,” and still other students massed outside of it. At its peak, roughly five dozen people were in the Juilliard performance space.
