On the First Amendment

According to the ACLU, The Supreme Court has interpreted the First Amendment’s protection of artistic expression very broadly. It extends not only to books, theatrical works and paintings, but also to posters, television, music videos and comic books — whatever the human creative impulse produces.

Two fundamental principles come into play whenever a court must decide a case involving freedom of expression. The first is “content neutrality”– the government cannot limit expression just because any listener, or even the majority of a community, is offended by its content. In the context of art and entertainment, this means tolerating some works that we might find offensive, insulting, outrageous — or just plain bad.

The second principle is that expression may be restricted only if it will clearly cause direct and imminent harm to an important societal interest. The classic example is falsely shouting fire in a crowded theater and causing a stampede. Even then, the speech may be silenced or punished only if there is no other way to avert the harm.

Censorship, the suppression of words, images, or ideas that are “offensive,” happens whenever some people succeed in imposing their personal political or moral values on others. Censorship can be carried out by the government as well as private pressure groups. Censorship by the government is unconstitutional.
In contrast, when private individuals or groups organize boycotts against stores that sell magazines of which they disapprove, their actions are protected by the First Amendment, although they can become dangerous in the extreme. But these private censorship campaigns are best countered by groups and individuals speaking out and organizing in defense of the threatened expression.

  • The First Amendment tells us that the government shall not impinge on freedom of speech and of the press. Speech includes expression….with “redeeming social value.”
  • The arts can’t be censored unless it has no redeeming social value and no redeeming social value is hard to prove. Fortunately for us, pornography called the question on the government’s enforcement of “redeeming social value.”
  • Artists are the royalty of expression.
  • This is all based on the premise that way too many people talking is better than nobody.
  • Parody, for example, is protected expression if it has redeeming value.

Hate speech is distinguished from free speech. The government legislated against hate speech. In time of war, there is speech that aids the enemy – it’s not protected.

Libel and slander are ways people hurt by expression can get redress. They must be intentional and that’s hard to prove in court.

Mixed Blood uses theater to address equity, diversity, and inclusion in different types of workplaces in the public and private sectors. In the ‘90’s Northwest Airlines – Delta’s predecessor – agreed to a “consent decree,” which means that they acknowledged no wrongdoing but agreed that there was a perception of wrongdoing and they would put effort and resources into reversing that perception. Mixed Blood was hired to provide training to hundreds of NWA employees and created a play entitled Soaring Into Equity by Syl Jones.

We held focus groups and interviewed scores of people who worked for Northwest. One person turned us on to confidential information. If there’s a flight coming from Kansas City to Minneapolis and five people on that plane need to make a connection to Detroit, the code in the computer was LRN5. That let the gate agents at the Detroit flight know if they should hold or not for the transferring passengers.

As a point of history, for many years – 1977 to 1994 – during and after his football career and before his wife died, OJ Simpson did a series of television ads for Hertz rental cars in which he sprinted through airports to find his car waiting for him. https://www.bustle.com/articles/165819-13-oj-simpson-hertz-commercials-that-show-a-very-different-side-of-his-fame-videos

Northwest’s code LRN5 indicated that there were five on tight connection from Kansas City headed to Detroit. Why LRN? It stood for Late Running N-word after OJ’s concourse dashes on TV.

We included that in our presentation, our play, and the first performance was seen by the CEO (Al Checchi) and his top 16 executives. Because we had so many performances planned and knew we had to replace actors throughout its time, we made a video of that inaugural performance. The next day Northwest’s lawyers were all over me to hand over the video in fear that it would fall into the wrong hands, such as the press. They contended slander. We declined. No consequences ever materialized.

On another occasion we were creating a show about boxer Muhammad Ali. In the script was sports commentator Howard Cosell, who had a long and fun relationship with The Champ. I called ABC, thinking I was starting a long hunt to find Mr. Cosell. I asked the receptionist how to find him, was transferred to an extension, and he answered. I asked for permission to use his name and likeness in our play and he told me that it was people like me that made lawyers necessary and made it clear he did not approve. We had a First Amendment attorney on the board. I called him and was informed that there was no recourse for a figure as public as Howard Cosell. We did the show, deleted his name, but had an actor doing an impression of his very distinct look and voice. It was clear who it was supposed to be. I invited Howard Cosell to the opening, fairly confident that he wouldn’t come to Minneapolis from New York. No “cease and desist” order came and that show went on to be produced across the country with no legal ramifications.

We produced a parody entitled The Basement Tapes about Richard Nixon, Gerald Ford, and G. Gordon Liddy on an acid trip in a Palm Springs rec room. We produced a musical, Rapmaster Ronnie, about the public con that the Reagan presidency was – during his years as president. We took Bush 2 to task for his unfounded involvement in Iraq in a play entitled Flags.

But there have been well-known consequences to freedom of expression with redeeming social value. Government funding for the arts, citing particular works of art that challenge social mores, has long been on the chopping block – locally, regionally, and nationally. The National Endowment for the Arts, National Endowment for the Humanities, and Public Broadcasting (radio and television) are perennially proposed for abolishment for their insidious messaging. “Fake News” has had other names in Congress for years.

Critics accused the NEA of financing obscenity, and Congress passed an arts funding law in 1990 requiring that public values be considered in awarding grants. The Supreme Court upheld that law in 1998, ruling in National Endowment for the Arts v. Finley (1998) that the government need not subsidize art it considers indecent. Although Finley does not stand for the proposition that disagreeable art is subject to censorship, it does mean that the government need not sponsor art it finds offensive. Similar to the Finley case, government officials sometimes invoke the government speech doctrine in art display cases.

Recently, Mixed Blood – an organization founded on the non-violent principles of Martin Luther King, Jr. – did a hyper violent play about the consequences to men of bad behavior of many years ago. We asked ourselves ethical and legal questions as we programmed this.

Today’s calls for censorship are not motivated solely by morality and taste, but also by the widespread belief that exposure to images of violence causes people to act in destructive ways. Pro-censorship forces, including many politicians, often cite a multitude of “scientific studies” that allegedly prove fictional violence leads to real-life violence.

There is, in fact, virtually no evidence that fictional violence causes otherwise stable people to become violent. And if we suppressed material based on the actions of unstable people, no work of fiction or art would be safe from censorship. Serial killer Theodore Bundy collected cheerleading magazines. And the work most often cited by psychopaths as justification for their acts of violence is the Bible.

Does exposure to media violence actually lead to criminal or anti-social conduct by otherwise stable people, including children, who spend an average of 28 hours watching television each week? These are important questions. If there really were a clear cause-and-effect relationship between what normal children see on TV and harmful actions, then limits on such expression might arguably be warranted.

Studies on the relationship between media violence and real violence are the subject of considerable debate. Children have been shown TV programs with violent episodes in a laboratory setting and then tested for “aggressive” behavior. Some of these studies suggest that watching TV violence may temporarily induce “object aggression” in some children (such as popping balloons or hitting dolls or playing sports more aggressively) but not actual criminal violence against another person.

Correlational studies that seek to explain why some aggressive people have a history of watching a lot of violent TV suffer from the chicken-and-egg dilemma: does violent TV cause such people to behave aggressively, or do aggressive people simply prefer more violent entertainment? There is no definitive answer. But all scientists agree that statistical correlations between two phenomena do not mean that one causes the other.

Japanese TV and movies are famous for their extreme, graphic violence, but Japan has a very low crime rate — much lower than many societies in which television watching is relatively rare. What the studies reveal on the issue of fictional violence and real world aggression is — not much.

The only clear assertion that can be made is that the relationship between art and human behavior is a very complex one. Violent and sexually explicit art and entertainment have been a staple of human cultures from time immemorial. Many human behavioralists believe that these themes have a useful and constructive societal role, serving as a vicarious outlet for individual aggression.

In 2004 we commissioned nine playwrights to write ten plays, each one a contemporary manifestation of one of the first ten amendments to the Constitution. Entitled BILL OF (W)RIGHTS, it moved audiences throughout our 1887 converted firehouse. It convinced me of the validity and wisdom of each of those ten amendments.

Immediately thereafter an Australian troupe asked to rent our theater to present their show. The show was called Puppetry of the Penis and two men shaped their units into different figures: genital origami or “dick tricks.” Now a fierce proponent of the first amendment, I took their lucrative rent. While no authorities ever gave us a second look, thousands of women packed our 220 seats and one valuable board member resigned.

Actors’ Equity Rule 48B states “The Actor has no certain method of knowing during rehearsals, whether in its final presentation the play is susceptible of being considered immoral or indecent. Therefore, the Producer represents to the Actor that the play as produced shall not violate any law or give offense which is punishable by any law, and expressly agrees that should the Producer or the author be arrested or summoned on such charges, then, Equity consenting, the Actor may end and terminate the engagement forthwith.” This rule suspends the presumption of innocence and allows an allegation to be penalized without due process, flying in the face of the First Amendment. This is allowable because it is an agreement between two private parties – the union and the theater. That union, usually our partner in courage, is simply wrong and cowardly on this matter.

In a time when governmental leadership is making capricious determinations of immorality and indecency, the words “arrested” or “summoned” should replaced by “convicted.” Being arrested or even charged is not a conviction. For a union member to be allowed to terminate employment because of an accusation is, quite simply, illegal. It is playing itself out daily in public arenas.

We all know that Minnesota Nice isn’t nice at all, but a passive aggressive way of telling others that they’ll be treated kindly as long as it’s comfortable and not inconvenient. Similarly, theater makers contend that their stages are today’s soapboxes and they can consider themselves the town criers that speak truth to power…as long as their comfort and safety aren’t threatened, at which point they’ve codified their right to quit and flee. The First Amendment is rendered flaccid. The art form is diluted in its claim to mirror human strength. Lady Macbeth urged us to “screw your courage to the sticking place and we’ll not fail!” Audiences have heard this for 412 years. It appears that Actors’ Equity has not.

© 2019 — Mixed Blood Theatre