When the Guild established the Dramatists Legal Defense Fund (DLDF), part of its mission was to support and advocate for free expression in the theatre. This it did, with gusto, pushing back against cancellations at community theatres, professional theatres and schools across the country.
The DLDF helped students move a school production of Almost Maine to a local theatre in North Carolina, when the principal cancelled it because, in one of its scenes, the play suggests that two men have fallen in love, though they never touch. The Fund supported a successful student-led initiative to get a cancelled production of Rent rescheduled and presented at a high school in Connecticut. Another group of students we supported had created a dramatic work based on letters home from soldiers who fought in Iraq, but the play was cancelled for being “too upsetting” for the community.
Time after time, we have seen students and teachers forced to fight back against their administrations and vocal members of their own community for their right to express themselves through theatre. But more recently, we have seen a growing number of reports of schools being forced by their own students to cancel scheduled productions…
“A student directed production of The Foreigner by Larry Shue was cancelled at Washington College, Maryland. It was cancelled in early November, the night before it was supposed to open, after some students objected to the play’s caricatured villain: the Ku Klux Klan.”
…and to shut down shows that were actually in performance:
“A group of University of California, Santa Cruz students protesting how people of color were represented in a play on campus took the stage Friday during the opening night of the aptly named What in the World? and refused to leave until the performance was cancelled.”
What would provoke such an action? And what is the proper response to it? From the writer’s perspective, and on the most fundamental level, it doesn’t really matter what provoked it. It could be argued that the students should have been taken away in cuffs and charged with any number of misdemeanors and, depending on the level of physical threat they posed, felonies, too. That’s an understandable emotional response to an alarming situation.
But the DLDF is now confronted by a phenomenon with a different set of circumstances than it has previously faced. There are nuances to be considered before the DLDF can respond in a thoughtful and constructive way.
Right to Protest
First of all, the same First Amendment that gives an author the right to write and present a play to the public also gives the public the right to protest it. Any suppression of one right is the suppression of the other, too. In fact, suppression of speech is a tool that is inevitably used against the interests of the most vulnerable segments of any society. So, while nobody should be leading anybody off in handcuffs for exercising such rights, activist groups advocating on behalf of vulnerable communities should be careful about endorsing or employing such tools of oppression.
The right of protest is legally subject to reasonable time/place/manner restrictions that prevent protestors from obstructing the artists’ rights of free expression and the public’s right to listen and see for themselves. Your right of free expression does not allow you to prevent mine. So how do we find a reasonable balance, so all views have an opportunity to be expressed and to be heard?
Equal Protection vs Free Expression
Consider this: both free expression and the right to own a copyright are constitutional rights. These rights sometimes conflict. When an author is given exclusive ownership and control over their expression (i.e., a copyright), they are, by definition, limiting the right of others to use it. This conflict is resolved by the doctrine of “fair use”, which acts as a First Amendment safety valve in the Copyright Act, allowing certain uses of copyrighted material for certain purposes.
Similarly, free expression and equal protection under the law are constitutional rights and values. They, too, can come into conflict. For example, the law recognizes a right to equal employment opportunities for “protected classes” of people, based on race, gender, sexual identity, religion and ethnicity. But dramatists also have a right of free expression, allowing them to incorporate stage directions in their plays that effect casting. If dramatists require that their characters appear to an audience to have certain characteristics (whether based on height, weight, gender, group identity, or otherwise), then casting on that basis, at least as a factor in the decision, is not deemed a violation of equal protection (See David Faux’s “Casting a Diverse Palette,” The Dramatist, July/August 2018).
But what about a play’s content and subject matter? What if it uses language, or represents characters, or expresses ideas that are (arguably) traumatizing for historically oppressed people in the audience who have been given no warning, and who have had no say in the selection of the work being produced, and have no forum to object? And does their lack of representation in the culture give them the right to challenge the right of any dramatist to write work outside of their own lived experience?
Well the short answer to all of that is that, unlike free expression which grants anyone the right to write on any subject, no one has a constitutional right not to be offended. But such short answers are incomplete and not always helpful. This answer does not address systems of oppression still operating (or at least perceived to be operating), when the dominant sector(s) of a culture has the decision-making authority to plan the theatrical productions on a college campus.
The law does not recognize governmental actions that compel speech (like loyalty oaths). However, when you cast a play, the actor is required to speak your lines and inhabit a character, and this form of “compelled speech” is not violative of any law. Still, student actors are being asked to portray roles and speak lines in their school production with which they fundamentally disagree or feel threatened by. Should they be compelled to participate, at the threat of losing their scholarships? Or participate in a production if they feel threatened or coerced by their fellow students into abandoning it?
There have been times in our history when students have aggressively challenged the content of the courses they were being taught. But even during those times, it was apparent to educators that their pedagogy needed to challenge the worldviews of their students and require them to examine their preconceived notions. And any drama teacher would have said that embodying the role of a character (even one you don’t like) is called “acting” and doing such work increases empathy, which is the fundamental value of theater in a society.
But these are not those days. These days, schools no longer have students who are simply students, they have students that are also customers. So, given that current model, how can academic institutions be supported and encouraged to resist the “cancel culture” currently metastasizing on their campuses while still maintaining a civil and safe environment for all to learn and live?
At the end of the day, the Guild and the DLDF are advocates for writers so, in my view at least, the show must always go on. But in order to address the many legitimate questions raised by the issue of school cancellations, the DLDF has formed a working group of educators, activists, non-profit groups, and dramatists to examine the problem. We hope to interview many of the effected groups and, ultimately, develop recommendations for “best practices” and a toolkit of resources available to help everyone navigate their way to an opening night that is safe and satisfying for all concerned. To learn more on these issues, go to www.DLDF.org.
RALPH SEVUSH, Esq., is an entertainment attorney. He’s been with the Dramatists Guild of America since 1997, and their Co-Executive Director and general counsel since June 2005. He is the Treasurer for the Dramatists Legal Defense Fund.