What Constitutes Theft in the Arts?

When I was in college, Lee Kahn, the school’s theater director, used to like to tell us, “The first rule of theater is theft.”  He said that so often that when I began to teach acting and theater myself, I passed his bit of wisdom on to my own students.  What Lee meant, of course, was that as theater artists (the rule didn’t apply just to actors), we should carefully watch other artists, especially the good and great ones (another actor’s admonition, though not one that Lee inculcated, is “Only steal from the best”), and take from them what we find useful and effective (or, maybe, just neat!)—a kind of surreptitious apprenticeship.  Painters do that, too, of course.  You can sometimes see young artists in museums copying the great masters to learn their techniques. 

When I was trying to teach myself how to write, I emulated the styles of writers I admired.  Of course, I didn’t really sound like myself when I did that consciously: I was a poor imitation of good writers, not a genuine writer myself.  I probably still do that—less consciously, I hope—but I think, at least to some extent, I’ve absorbed what I’ve picked up so that, as one of my acting teachers put it, my technique has simply become part of my way of working, no longer artificial and assumed, but an innate part of me.  It’s like the way someone takes on an affectation, a bit of artificially assumed manner—such as an accent with which he wasn’t born or a level of diction he never learned in school—until slowly it actually becomes part of his habitual make-up.  It’s not an affectation anymore, it’s just behavior. 

Musicians, songwriters, and composers follow a path not unlike actors and writers.  Somewhere there’s a line that demarcates emulation, tribute, or homage from outright theft—permanent “borrowing.”  Now, Milton Berle, always accused of recycling other comedians’ jokes, notwithstanding, however, I’ve never heard of an actor actually being accused of (much less charged with) plagiarism.  But writers (remember Doris Kearns Goodwin?) and composer-lyricists can fall prey to the P word and its often very hard to tell where “fair use” leaves off and misappropriation begins.  (I’ve worked for one editor who prohibits any but the most necessary quotations because his publishers won’t pay for them and he doesn’t want to cross the line into improper use.  I couldn’t even quote from the Hart Crane poem from which Tennessee Williams took his title Summer and Smoke, although I’ve always understood that in literary criticism, “fair use” meant writers could quote, with proper attribution, any pertinent statement.)  Sometimes, in a courtroom where the dividing line is under question, the search for it can be downright ludicrous. 

In the most recent prominent case of a charge of plagiarism, the family of Marvin Gaye, who died in 1984 (shot to death by his father), claimed in 2013 that songwriters Robin Thicke and Pharrell Williams copied portions of Gaye’s 1977 pop hit “Got to Give It Up” in their release “Blurred Lines.”  The Gaye family sued Thicke, Pharrell, and rapper Clifford Joseph Harris, Jr. (known as T.I.) who’s featured on the song, for over $25 million in damages for copyright infringement.  On 10 March, the court ruled that Thicke and Pharrell, but not Harris, were guilty of improperly using parts of Gaye’s song and the judge ordered them to pay $7.4 million in damages. 

The verdict has raised many questions and generated vocal responses on both sides of the issue, from those who praise the ruling and those who vehemently disagree.  The Washington Post ran a compilation of short comments by members of its arts and culture staff on plagiarism in fields other than pop music (visual art, fiction writing, stand-up comedy, classical music, and theater) in response to the “Blurred Lines” verdict.  As Peggy McGlone writes in her introduction to the collection, “The recent verdict by a federal jury in Los Angeles may have settled one case, but it has ignited a larger debate about creativity and ownership and how to sort out the co-opted from the copied.”  McGlone, the Post’s local arts reporter, wryly remarks, “Blurred lines indeed,” and observes in the end, “While artists borrow, sample and appropriate frequently, the answer to the question ‘Did they steal?’ is usually no.” 

It can be a prickly question, even when reduced to the simpler-seeming legal issue of copyright infringement.  “There’s no history of art without borrowing, appropriation and in some cases theft,” says Washington Post art and architecture critic Philip Kennicott.  (He was writing about visual art, but his comment is applicable to all the arts.)  Some aspects of a performer’s art can’t be copyrighted.  Lyrics, tunes, even distinctive looks (with respect to costumes, hair and makeup, and even physical appearance; Jackie Onassis successfully sued Christian Dior in 1984 for making a commercial with a look-alike when Onassis refused), but not style—whatever that is.  Take, for example, the 1989 case of Bette Midler against the ad agency Young & Rubicam and the Ford Motor Company. 

In the 1970s, Ford started a TV commercial campaign which featured the singing of well-known singers.  If the original artists didn’t want to make the ad, Young & Rubicam hired a sound-alike to duplicate the song and the singer’s style for the commercial.  When the ad company approached Midler to sing her distinctive cover of “Do You Want to Dance” (from Midler’s 1973 début album, The Divine Miss M), she declined and Young & Rubicam brought in an imitator.  Midler, who (like Jackie Onassis) never makes commercials, took Ford and the ad agency to court in Midler v. Ford Motor Co., but she didn’t sue for copyright infringement because, while copyright law protects the song and her actual recording itself, it doesn’t protect imitations.  (Ford had obtained a license to use the song, so they were on legal grounds there.)  The singer claimed, however, that the imitation was a misappropriation of her identity because the version of the song as she recorded it was unmistakably identified with her, giving a different meaning to “identity theft.”  (The legal issues of this case are complex, but this is not the forum, nor am I competent, to discus them.)  Though Nancy Sinatra had lost a similar suit against Goodyear Tire & Rubber Co. in 1970 for their use in a tire commercial of “These Boots Were Made For Walkin’,” a song strongly connected to her, Midler won her case on appeal (the original trial court had denied her claim).  She had sued for $10 million but was awarded $400,000; however, Madison Avenue was put on notice. 

Because these cases often concern plaintiffs or defendants who are performers, the court cases can get . . . well, interesting is a neutral way of describing them.  (“Bizarre” would probably be more accurate.)  For instance, in a 1989 case, comedy writers E. J. Novak and Debra Studer, a husband-and-wife team, sued NBC, the producers of Saturday Night Live, for copyright infringement in Novak v. National Broadcasting Co., Inc., claiming the network and SNL had taken material the duo had written in 1985 for a local program called Video Vault on independent station WOR-TV (New York City channel 9 and now known as WWOR) and reused it in six 1985 and ’87 sketches about, among other topics, the mobster Lucky Luciano, Attila the Hun, Frankenstein, and “The Fifth Beatle” (fictional oboist Wingo Murray).  Novak and Studer, who pursued NBC on this issue for over four years, ultimately lost their suit—but not so much on the merits themselves (although the judge found legal reasons to dismiss their cause), as the fact that the comedy writers pissed the judge off in court and in documents they filed. 

Novak and Studer’s principal error was that unlike most plaintiffs and defendants in plagiarism cases, they didn’t hire lawyers to represent them: they pleaded their own case at trial.  (NBC was represented by a white-shoe Manhattan firm.)  This decision led the plaintiffs to turn the courtroom into what the judge called a “playground for comics.”  After two years of polite exchanges between Novak and Studer and the defense attorneys, in 1989 they wrote the lawyers a note addressed to “Dear Laurel and Hardy” because of their physical appearances.  When the attorneys complained to the judge, Novak countered, “Their inconsistency and lack of consideration, even by attorneys’ standards, transcends the boundaries of law and enters that funny little netherworld we call—the Rudeness Zone.”  He then sent the defense team another note greeting them simply as “Stan” and “Ollie.”  In his turn, Novak complained to the judge, “The sight of Mr. Jones [one of the defense lawyers] rolling toward us in anger is a terrifying experience reminiscent of scenes from either ‘The Honeymooners’ or ‘Mutual of Omaha’s Wild Kingdom.’”  “‘Legal humor’ may or may not be an oxymoron,” observed the New York Times.  “But attempts at it can prove costly.” 

The judge took such exception to Novak and Studer’s verbal antics, he not only decided against them in the lawsuit, but assessed them $3500 in court costs (over $6800 today).  The Times reported that Novak alleged in an interview that he and his partner “were victims of pernicious linguistic discrimination.”  “We could have said, ‘Your Honor, according to habeas corpus writ dictum, this was dilatory and deceitful,’ but I’m not a lawyer,” said Novak. “We used humor where they used legalese.”  He added that the only people who were actually hurt by his language were Stan Laurel and Oliver Hardy, “because they were compared to these lawyers.”  However amusing and clever Novak and Studer were, they essentially scuttled their own legal boat when they took their professional tactics into what the Times labeled “the generally unfunny world of litigation.”

Possibly the strangest case with respect to courtroom demeanor was the 1985 copyright infringement suit brought against Mick Jagger of the Rolling Stones.  Reggae singer-songwriter Patrick Alley sued Jagger for copying his song “Just Another Night,” which he said he’d recorded in 1979 and released on his 1982 album, A Touch of Patrick Alley, for Jagger’s own song of the same title (titles aren’t copyrightable) from the Stones frontman’s first solo album, 1985’s She’s the Boss.  The court in White Plains, New York, decided in 1988 that Jagger hadn’t stolen Alley’s song.

Patrick Alley v. Mick Jagger itself was relatively straightforward, but the presentation of the evidence offered in court was . . . I’d say it was unique.  In addition to presentation of transcriptions of the lyrics of both songs (by dueling experts, of course), as you would expect, according to the report in the New York Times, the testimony consisted of music, both live and recorded.  During the weeklong trial, a Juilliard instructor played the piano; Sly Dunbar, a Jamaican studio musician, performed on drums; and Jagger sang from the witness stand bits of his recordings “Jumpin’ Jack Flash,” “Brown Sugar” and “Miss You.”  Predictably, taped recordings of Alley’s “Just Another Night,” a minor-key reggae ballad, and Jagger’s identically-titled up-tempo rock song were played in court as well.  Jagger also played work tapes to show the development of the song, and attorneys on both sides sang snippets of the two compositions.  Jagger signed autographs during breaks in the trial, and on the day before the verdict was rendered, when the jury deliberated for 3½ hours, fans broke through a courtroom door and tried to reach the Stones singer-guitarist. 

While the rest of the case was just what you’d expect in a copyright infringement trial for a piece of music—similar in most ways to other musical plagiarism cases such as the 1971 suit against Beatle George Harrison alleging that he copied the Chiffons’ 1962 charter “He’s So Fine” for his own 1970 hit “My Sweet Lord” (Harrison lost, but the judgment was small); Michael Jackson’s successful 1984 and 1993 defenses of his song “The Girl Is Mine” (recorded in 1982 in a duet with another former Beatle, Paul McCartney), first against Fred Sanford, writer of the song “Please Love Me Now,” and the second against songwriters Reynaud Jones and Robert Smith; and the case against the Bee Gees, also in 1983, charging that they’d stolen 1977’s “How Deep Is Your Love” from Chicago songwriter Ronald Selle’s 1975 song, “Let It End,” a suit which the group initially lost in the jury trial before the judge overturned the verdict and found for the Gibbs—the proceedings in court have always made me feel that the Jagger trial should be staged as a theatrical performance.  I mean, really: singing lawyers!  (Not to mention reggae and rock ’n’ roll music—it’s got hit written all over it!)  Can’t you just picture it?

The most absurd case of alleged plagiarism in the pop-music world, however, has to be the suit brought against John Fogerty, the principal songwriter of Creedence Clearwater Revival, in San Francisco in 1988.  As we can see, most cases of artistic theft are brought by one artist (or sometimes just a rights-holder) against another and the charge is invariably that the defendant has stolen intellectual property from the plaintiff.  In the Fogerty suit, the plaintiff was Fantasy, Inc., a company that owned the rights to Fogerty’s compositions for CCR from 1967 to 1972; the defendant was, of course, Fogerty.  But the charge was that the songwriter had stolen not from another songwriter, but . . . from himself.  Really?  Can you even do that?  How the hell can someone rationalize a charge like that?

But that’s what Saul Zaentz, owner of Fantasy Records (a division of Fantasy, Inc.), did.  He charged in Fantasy, Inc. v. Fogerty that Fogerty had plagiarized his own 1970 CCR hit “Run Through the Jungle” to produce his 1985 composition “Old Man Down the Road,” released on his 1985 comeback solo album, Centerfield.  Since Fantasy owned the rights to “Run Through the Jungle,” but not “Old Man,” written after CCR broke up in 1972, Zaentz could claim Fantasy’s copyright to the older song had been infringed—if he could, in fact, prove that Fogerty used the CCR hit to create his comeback number.  If the court bought Zaentz’s argument, it would mean that Fogerty had plagiarized himself.  Now, I have no legal training (despite the fact that I have lawyers all over both sides of my family, from uncles to cousins and now to those cousins’ children), so maybe it’s even possible for a court to entertain such a charge.  But in the rational world outside the courthouse, the one I live in, this is an absurd concept. 

One of Fogerty’s lawyers pointed out, “What similarities there were between the two songs were the result of Mr. Fogerty having written both of them,” which seems a no-brainer to me.  The attorney added, “Both of them came out of the same musical vocabulary,” and the songwriter pointed out at a news conference after the court case that the work of composers, writers, and singers exhibits the hallmarks of the artists’ individual styles.  In fact, I’d assert, that very similarity among an artist’s works is what constitutes her or his “style.”  It’s what we recognize immediately when we hear a song by a composer or singer we know, read a passage from a writer with whose books we’re familiar, or see a performance by an actor whose movies, TV shows, or plays we’ve seen before.  (In fact, it’s what analysts who do computer comparisons with a newly-discovered work and a known piece of writing rely on to determine if the new discovery is the product of the known writer, like, say, Shakespeare or Dickens.  It’s those similarities that make up the style the scientists line up to measure the degree of match.)  It’s not copying, at least not in a conscious way, it’s the innate characteristic of one artist’s art.  We recognize a van Gogh painting at a single glance because of the similarities it reveals to all the previous van Gogh paintings we’ve seen.  If artists are barred from using this stylistic attribute of their creativity, then that creativity will be severely impaired—if not destroyed entirely.  (Perhaps Zaentz and Fantasy had this in mind as a consequence of their action: to prevent Fogerty from creating new songs that would compete with the CCR catalogue they owned.)

In the end, the jury found that Fogerty hadn’t stolen from himself and Fantasy lost the suit.  I’d insist that Fogerty, or any artist, can’t steal from himself: it’s a metaphysical impossibility.  Fantasy appealed and lost again.  Fogerty sued the company for payment of legal costs in the suit, and after the trial court denied his claim and the Court of Appeals upheld that ruling, the singer-songwriter pursued Fogerty v. Fantasy, Inc. to the Supreme Court and won in 1994—almost a decade after Fantasy, Inc. v. Fogerty was brought.  Fogerty v. Fantasy, Inc. was a precedent for awarding court costs to the winner in a copyright litigation, whether the plaintiff or the defendant, especially where the suit had been brought or defended frivolously or in bad faith.

The fact, whether recognized by the courts or not, is that emulation in the arts is not just common, but necessary.  Kennicott writes in the Washington Post, for instance, that without appropriation, “there’s almost no art to talk about.”  Shakespeare and Chaucer, observes Ron Charles, a Post book reviewer, both borrowed material for their literary masterpieces.  Artist Fernando Botero created his own Mona Lisa in 1977, derived from Leonardo da Vinci’s portrait, painted in the early 16th century.  Pyotr Tchaikovsky appropriated  “La Marseillaise,” written and composed in 1792 by Claude Joseph Rouget de Lisle, for his 1812 Overture in 1882.  “Good artists borrow,” writes Post classical music critic Anne Midgette, attributing the line to Igor Stravinsky, “great ones steal.”  Copyright law, however, only protects exact words, musical phrasing, and images, so none of these examples would fall if haled into court.  What Post theater reviewer Nelson Pressley calls “the magpie culture of borrowing and re-appropriation” is a cornerstone of most artistic creation, whether it’s done to make a point, a comment, or an homage. 

Sometimes, the borrowing is part of a lengthy, attenuated conversation: Midgette describes how Dmitri Shostakovich quoted a passage from Franz Lehar’s The Merry Widow (1905) in his own Seventh Symphony (c. 1939-40) and then Béla Bartók picked it up and used the line again in Concerto for Orchestra (1943), each use a comment on the previous incarnations.  In theater, where Pressley says outright appropriation is rare, Lorraine Hansberry’s A Raisin in the Sun (1959) gave birth to Bruce Norris’s 2011 Pulitzer Prize-winning Clybourne Park, which picks up where Raisin left off and focuses on new issues and situations; Clybourne and Raisin then generated Kwame Kwei-Armah’s 2013 Beneatha’s Place, both a sequel to Raisin and a reply to Clybourne.  No matter how or why these and other creations are developed, they’re wholly independent works of art that have never been—nor should be—labeled plagiarism. 

Let me amend Lee Kahn’s admonition to his theater students: “The first rule of art is theft.”

The First Amendment & The Arts, Redux

On 8 May 2010, I published a post on ROT called “The First Amendment & The Arts.”  The title tells it all as far as what I was writing about.  For those who don’t already know this about me, I’m pretty much a First Amendment absolutist, as I confessed in that article.  I also professed in that blog post that I subscribe to the line from Peter Stone and Sherman Edwards’s musical 1776 in which Stephen Hopkins, the irascible Rhode Island delegate to the Continental Congress, declares, when asked if he supports an open debate on “independency”: “Well, I’ll tell y’—in all my years I never heard, seen, nor smelled an issue that was so dangerous it couldn’t be talked about.  Hell yes, I’m for debatin’ anything . . . !”  

I allow for a very few, firmly defined exceptions to the precept of open debate and discussion of any topic in any forum.  Otherwise, my stand on the First Amendment and its non-governmental parallel, freedom of expression, is paramount.  For while we must allow dissident voices, even those speaking words which we despise, we aren’t indemnified from responding in kind.  Speech we don’t like, in our philosophy, not only can be answered but must be answered with more speech.  The First Amendment requires us to allow people with whom we disagree to speak freely—but it also permits (and I say it demands) the rest of us to talk back, to argue, debate, explain why the ideas being offered are bad, wrong, or despicable.  The Constitution protects the right of all citizens to say whatever they believe—but it doesn’t protect them against public disagreement, disparagement, or even opprobrium.  The Constitution doesn’t protect anyone from having her feelings hurt, so if you say something with which I disagree, I can call you a boob and an idiot and state just why I say so.  And I ought to.  What I shouldn’t do, above anything else, is to try to silence you or suppress your attempts to speak.

I contend that whether or not we like the words or ideas, we need to hear what everyone has to say on any given subject.  In support of that position, I quote from Walter Lippmann’s fine essay “The Indispensable Opposition” (1939)—which I’ve subsequently posted in its entirety, 16 November 2011—when he says that “because freedom of discussion improves our opinions, the liberties of other men are our own vital necessity.”  He compares this to paying a doctor “to ask us the most embarrassing questions and to prescribe the most disagreeable diet.”  We understand, Lippmann believed, “that if we threaten to put the doctor in jail because we do not like the diagnosis and the prescription it will be unpleasant for the doctor, to be sure, but equally unpleasant for our own stomachache.” 

I’m also reminded of something Tennessee Williams said on the subject.  He called art, including theater, “a kind of anarchy.”  He went on to clarify:

Art is only anarchy in juxtaposition with organized society.  It runs counter to the sort of orderliness on which organized society apparently must be based.  It is a benevolent anarchy: it must be that and if it is true art, it is.  It is benevolent in the sense of constructing something which is missing, and what it constructs may be merely criticism of things as they exist.

I understand this to signify that if you’re going to do art, say by running a gallery or a theater, it’s going to get messy.  A beneficial kind of messy, but art is unruly and we have to accept that if we call what we present art.  We know that—or we should—going in.

For these reasons, I found myself in an interior debate over the summary firing on 18 December 2014, of Ari Roth, the longtime artistic director of Theater J in Washington, D.C. 

Theater J is a subsidiary of the Washington DC Jewish Community Center, located at 1529 16th Street, N.W., at Q Street in the Dupont Circle neighborhood (the center’s original home since its establishment in 1925) and commonly referred to in the District as the DCJCC.  Established in 1990, the $1.6 million-budget Theater J occupies the Aaron & Cecile Goldman Theater in DCJCC’s Morris Cafritz Center for the Arts.  It was founded by playwright, producer, actor, and acting coach Martin Blank as a professional theater company “dedicated to the highest level of Jewish arts and culture” and “committed to producing innovative Jewish theater.”  It has an advisory body, the Theater J Council, of 30 members, some of whom also sit on the JCC’s 44-member Board of Directors.  The Chief Executive Officer of the DCJCC is Carole R. Zawatsky, who’s accountable to the JCC’s board and its 17-member executive committee; she was essentially Roth’s boss.  Theater J’s managing director is Rebecca Ende, an arts administrator.  (Since Roth’s dismissal, the acting artistic director of the theater is Shirley Serotsky, a stage director who was previously Theater J’s associate artistic director.) 

There is some confusion over exactly why Roth, now 54, was suddenly fired after 18 years at the troupe’s helm.  The tension between the theater’s artistic director and CEO Zawatsky and the JCC’s board goes back months, generated primarily by the reactions, both of DCJCC’s leadership and the institution’s supporters in the Jewish community of Washington, to the plays Roth was presenting at Theater J.  In 2000, he launched a multiyear series of plays called the Voices From a Changing Middle East Festival which staged plays about Israel and its regional neighbors.  Among the presentations that have generated outrage among fervent supporters of Israel have been Motti Lerner’s The Admission, a drama about an alleged massacre of Palestinian villagers by Israeli soldiers during the 1948 Israeli war for independence, and Boaz Gaon’s Return to Haifa, based on a 1969 novella by Ghassan Kanafani (1936-72), a Palestinian writer and prominent member of the Popular Front for the Liberation of Palestine, that related the return of a Palestinian couple to the Haifa home they fled in 1948; both Israeli playwrights have been critical of the country’s policies. 

Lerner, a 65-year-old Sabra whose grandparents emigrated to Palestine in the 19th century, has written many plays critical of Israeli policy and politics.  He’s also written extensively for Israeli television, but starting with The Murder of Isaac, a play about the 1995 assassination of Israeli prime minister  Yitzhak Rabin, many of his plays have been rejected for production in Israeli theaters—though they’ve had considerable success in Europe (The Murder of Isaac premièred in Heilbronn, Germany, in 1999) and the U.S. (Admission, Theater J; Murder revived at Baltimore’s Center Stage, 2006).  Nonetheless, Lerner’s won several awards for his stage and TV writing, and on 1 January 2015, Peter Marks, the chief theater reviewer for the Washington Post, named The Admission one of his “10 favorite Washington theater experiences of 2014,” describing it as a “searing drama by Israeli playwright Motti Lerner that inflamed passions about the Middle East and, in the resulting political firestorm, likely contributed to the firing by the DC Jewish Community Center of the company’s artistic director, Ari Roth.”  Boaz Gaon, born in Tel Aviv in 1971, is the son of a prominent Israeli businessman.  The playwright, journalist, screenwriter, and peace activist has six plays that have been produced in Israel and the U.S.  Between 2010 and 2012, Gaon, who spent  2004-06 in the United States as a reporter for Ma’ariv, was an important part of the Israeli social protest movement, forming two grass-roots organizations, the Rubinger Forum and Beit Ha’am (Better Israel), dedicated to political change.  This fall, Gaon won a Fulbright scholarship to the Iowa Writers Workshop to participate in the International Writers Program. 

Other offerings in Voices included a March 2009 reading of Seven Jewish Children: A Play for Gaza by British playwright Caryl Churchill, a very controversial play that covers about 70 years of Jewish history in which seven unnamed Jewish adults discuss how to teach their children about complex events in Jewish history, to which the play only alludes indirectly, from the Holocaust to the creation of Israel to the 2008–09 Gaza War (also called Operation Cast Lead).  In spring 2014, Theater J planned to stage about a dozen readings of Roth’s own play Reborn in Berlin, which caused angry reactions because, Roth said, it relates the views of Turks addressing the issue of “how Muslims processed the Holocaust today.”  Lerner’s The Admission was staged in March and April and shortly after that, Zawatsky and the JCC board canceled both the workshop production of Reborn and the festival, which was ironically designated as “part of the Washington DCJCC’s new series, ‘Embracing Democracy.’”

(It shouldn’t be misconstrued that Theater J under Roth’s stewardship presented only controversial plays and plays that seem to hold Israel up to harsh scrutiny.  Indeed, according to the on-line journal The Tablet, “most of Theater J’s plays each year are set against the backdrop of America, not Israel.”  Other productions have included, for example, Tony Kushner’s Homebody/Kabul, 2004; S. Anski’s The Dybbuk, 2006; Shylock by Arnold Wesker, featuring Theodore Bikel, 2007; Arthur Miller’s The Price, starring Robert Prosky and his sons Andrew and John Prosky, 2008, and After the Fall, 2011; Neil Simon’s Lost In Yonkers, 2009, and The Odd Couple, 2010; New Jerusalem: The Interrogation of Baruch de Spinoza by David Ives, 2010 and 2012; David Mamet’s Race, 2013; David Henry Hwang’s Yellow Face, 2014; and Golda's Balcony by William Gibson, starring Tovah Feldshuh, 2014.  No one objected to any of those presentations, of course, so they seldom entered into the conversation.  Theater J productions have won 7 Helen Hayes Awards out of 63 nominations.)

Roth was dismissed after attempts by him and the DCJCC leadership to come to an accommodation in meetings with Roth, Zawatsky, and Rabbi Bruce Lustig of the Washington Hebrew Congregation (the Capital’s oldest synagogue), which Roth called “marriage counseling,” and the director rejected an agreement by which he’d receive a severance package worth six months’ salary in exchange for his silence on the subject of his termination.  Roth and his supporters declare that Zawatsky and the JCC took the action “for blatantly political reasons,” in the words of a protest letter signed by the artistic directors of some 60 major theater companies across the U.S.  (The signatories eventually grew to include the heads of over 90 theater troupes.)  The DCJCC statement of the departure stated flatly that Roth was “stepping down to pursue a new series of endeavors,” a characterization Roth rejects (“I was terminated abruptly,” he insists). Zawatsky, however, after stating in the announcement on 18 December that the director “has had an incredible 18-year tenure leading Theater J, and . . . leaves us with a vibrant theater that will continue to thrive,” adding that he’d made Theater J “the premier Jewish theater in the country,” did an about-face in an e-mail on 24 December, in which she denounces Roth for “a pattern of insubordination, unprofessionalism and actions that no employer would ever sanction.”  The CEO alleges that the former artistic director “continued to disregard direction” from her and the board. 

DCJCC supporters and some donors applaud the dismissal, feeling that Roth’s offerings at Theater J were anti-Israel and inappropriate for the Jewish institution.  There’d even been a campaign to deny DCJCC financial support from the Jewish community in Washington, which generated an organization that calls itself Citizens Opposed to Propaganda Masquerading as Art, formed after the Theater J readings of Seven Jewish Children, considered by some to be anti-Semitic.  Two years later, COPMA became more aggressive when Theater J produced Gaon’s Return to Haifa in January 2011.  Even though the production had been staged by Tel Aviv’s highly regarded Cameri Theatre and the Israeli government had footed the bill for the transfer, the JCC severed its association with the Peace Cafe, an after-play outlet for debate Roth had established at Theater J in 2001, during the run of Via Dolorosa, English writer David Hare’s solo play based on his own eyewitness account of the Arab-Jewish conflict.  

The Washington Post calls Theater J “one of the leading Jewish theaters in the country and one of the most important outposts for plays about Israel and its neighbors,” a status it attributes directly to Roth’s stewardship, and the Jewish Daily Forward says it’s “a nationally acclaimed group.”  The New York Times describes the company as “a rare mix of professional polish, thoughtful dramaturgy and nervy experimentation” and in American Theatre, Isaac Butler calls Theater J, under Roth’s directorship, “the nation’s most prestigious and well-known Jewish theatre.”  In January 2012, though, COPMA issued a release in which it accused Roth of “using Theater J as a propaganda platform for his political agenda to criticize Israel and promote the Palestinian narrative” and, charging that the DCJCC and the Jewish Federation of Greater Washington , the community center’s principal funder, can’t be trusted to “act as fiduciaries for the funds entrusted to them to work for the best interests of the Jewish Community,” threatened that COPMA appeared “to have few options remaining at this point other than taking our campaign [to thwart Federation and JCC funding] public” unless the organizations took some action to “address Mr. Roth’s recidivism.” 

COPMA, an organization out of the D.C. suburb of Potomac, Maryland, was not the only group that assailed Theater J’s funding or its politics.  In a letter published in the Jewish Post, the chairman of the board of the National Council of Young Israel declared: “I am dismayed at the financial support that the Federation is providing to Theatre J to subsidize the production of The Admission, a play written by an anti-Israel Israeli named Motti Lerner.”  The Jerusalem Post also denounced Roth and Theater J for its production of The Admission, a play the paper characterized as based on “a blood libel” that was disproved in an Israeli district court.   

The question seems to me not to be whether Roth’s presentations at Theater J have been challenging and even disturbing.  They clearly have been, and I doubt he or his supporters would attempt to argue with that assessment.  In fact, his statements make it obvious that that’s his intent: to voice all sides of the important issues affecting Israel and worldwide Jewry and foster debate and discussion.  (That’s where the Stephen Hopkins and Walter Lippmann references come in, of course.)  From my perspective, that’s not only a valid rationale for presenting controversial and difficult plays, but the duty of every artist and theater in a democracy.  Roth, who’s also described as “polarizing” by the New York Times and “a difficult person” by a former DCJCC board member, believes, in the words of his former company’s mission statement (which I gather he crafted): “Theater J produces thought-provoking, publicly engaged, personal, passionate and entertaining plays and musicals that celebrate the distinctive urban voice and social vision that are part of the Jewish cultural legacy.”  What he says about the kind of plays he mounts is: “The ideal always was to engage with Israel in an honest and as mature and as nuanced a way as possible to present the humanity of the people who lived there, and who lived in the midst of and on other sides of the borders, so that’s where we began.”  The director-playwright adds, “I think we should try to create a national conversation around the conflict, and we should look at the playwrights and directors who are doing work in Israel, in Palestine, in Egypt, in Syria, in Jordan and we should get the work out there.”  The point is, at least for me, that even if you disagree unalterably with everyone else’s positions on the common issues in this conflict, you have to hear what they are.  If you silence those other voices or make them hard to find and hear, you make it impossible to refute their arguments or negate their points.  That’s what totalitarian regimes do; that’s what intolerant ideologies do: they prevent people from hearing opposing views. 

(It strikes me as ironic that an organization that purports to “believe there is no place in our Jewish community centers and institutions for anti-Israel propaganda” is, in fact, promoting its own propaganda by shouting down ideas with which they disagree and privileging only those they support—or which support them and their beliefs.  Is that Orwellian or what?  Besides, who anointed them as the arbiters of what’s in “the best interests of the Jewish Community”?  I’d posit that open discussion is in their—and everyone’s—best interest!  Additionally, COPMA stands forthrightly against the movement to promote boycotts, divestment, and sanctions against Israel and has claimed that Theater J under Roth’s leadership gave aid and comfort to the supporters of the so-called BDS movement.  Yet what COPMA was calling for to force the DCJCC to rein in Roth and Theater J is, in fact, an application of BDS targeted against the community center and the theater.  Doesn’t this strike anyone else as hypocritical?  If BDS is a legit tactic for the gander, it’s a legit tactic for the goose.  And, further, when we and many other nations and institutions used the practice against apartheid South Africa, everyone applauded.  Until last month, we also used it officially against Cuba for decades—it just didn’t work.  It seems that when you’re goring someone else’s ox, BDS is great—but when it’s your ox about to be stuck . . . whoa, Nelly!) 

I’m not going to enter the debate concerning whether Roth’s firing was proper on the part of DCJCC or whether Zawatsky was right or wrong to take that action.  The press reportage and commentary has taken care of that perfectly adequately.  (I suspect it’s obvious from what I’ve already said here and in my other posts on freedom of expression where I stand in this instance.)  But there’s another angle to look at here.  The case of Theater J is slightly different, for instance, from what happened to the Manhattan Theatre Club in 1998 when warnings of violence caused cancelation (and subsequent reinstatement) of the theater’s staging of Corpus Christi by Terrence McNally or at the New York Theatre Workshop in 2006 when threats to the theater’s financial support caused NYTW to postpone indefinitely its announced production of Alan Rickman and Katharine Viner’s My Name Is Rachel Corrie.  Those companies were autonomous entities answerable to boards of directors, perhaps, and their patrons and donors, but with no ties to an organization like the DCJCC or its funder, the Jewish Federation.  How much fealty does an arts organization owe to its parent institution?  How much should the umbrella institution’s politics inform the art offered by the subsidiary?  In the instance of Theater J and the DCJCC, how much should Roth, essentially an employee of the community center, have followed its wishes and the instructions of Zawatsky and the JCC board?  Should the larger organization exert any pressure on the smaller one, on the argument not only that the parent institution pays the bills but that the arts affiliate is basically an arm of the principal establishment, like an academic department to a university, say.  Can the drama department of JCC University carve out its own standards and practices in opposition to or violation of those set out by the university as a whole?  As independent actors, MTC, NYTW, and Sony Pictures can make their own determinations about what art to present (and I say they all should have stood by their guns), but Theater J is a subsidiary of a larger body.  Should that relationship affect its choice of material?  And if it should, how much?  The Washington Post spells out the case neatly:

“A wonderful aspect of Jewish tradition is healthy debate,” says Stuart Weinblatt, rabbi at Congregation B’nai Tzedek in Potomac, Md.  “But ultimately, a big tent does have parameters.  It’s not inappropriate for the JCC or any institution to ask, ‘Does this play or speaker convey a narrative that helps people understand Israel’s ongoing struggle?’ There are plenty of venues willing to host productions critical of Israel. The Jewish community doesn’t need to be that place.”

Ideally, I’d say that the JCC should provide virtually complete artistic freedom for Theater J.  Aside from prohibiting actual illegal acts (calling for the violent overthrow of the United States, committing libel or slander, breaching national security, inciting violence—that sort of thing), the JCC should trust its senior employees like the theater’s artistic and managing directors to explore significant issues responsibly and with a focus on the excellence of the art involved.  The Theater J leadership, on the other hand, should feel free to exercise that freedom of expression while being mindful of—but not coerced by—their responsibility to the JCC, the same way an independent theater is cognizant of—but doesn’t pander to—the sensibilities of its community.  Realistically, however, I have to acknowledge that kind of freedom is probably impossible—mostly because of the financial relationship between a JCC and a Theater J (not to mention just plain old human nature). 

As the actions of groups like COPMA and the National Council of Young Israel show, the theater’s artistic decisions could have serious implications for the fundraising—and thus the continuing survival—of the JCC.  How do the parties negotiate that aspect of the symbiosis?  Clearly, in the instance of Ari Roth and Carole Zawatsky, they didn’t.  As Edna Nahshon of the Jewish Theological Seminary admits, “I can understand the discomfort of the J.C.C. with the material that is being presented again and again, and I can understand [Roth’s] demand for artistic freedom.”  The professor of theater concludes, “Maybe it got to a point where the material and the home don’t fit anymore.”

The monkey wrench in these gears is unfortunately the hardened attitudes of American Jews concerning their support of Israel and, particularly, the conservative government of Prime Minister Benjamin Netanyahu and his Likud Party.  In a recent New York Times Magazine article, Jason Horowitz, a Times Washington correspondent, reports that progressive U.S. Jews “increasingly find themselves torn between their liberalism and Zionism and stranded in the disappearing middle between the extremes of a polarized American Jewish community.”  Horowitz quotes Rabbi Daniel Zemel, head rabbi of Temple Micah, a liberal synagogue in the Northwest section of Washington, who bristles, “In many segments of American Jewry, one is free to disagree with the president of the United States, but the prime minister of Israel is sacrosanct.”  In the Washingtonian, Alan Elsner, vice president of communications for J Street, a progressive Mid-East policy organization that supports both the State of Israel and peace, asserts that the topic “had become so toxic that institutions, people, synagogues felt they couldn’t discuss it intelligently anymore.”  What it came down to at DCJCC, in Roth’s perception, was, “No Palestinians on stage, that’s the new JCC edict let’s say . . . .” 

Unlike the opponents of McNally’s Corpus Christi and Behzti, a British play by Sikh dramatist Gurpreet Kaur Bhatti which raised hackles in Birmingham in December 2004, the pro-Israel contingent in D.C. and beyond isn’t threatening violence and death in retribution for presenting plays they don’t like.  As they did in the case of Rachel Corrie and NYTW, they’re using the power of the purse: they want to starve Theater J, through the DCJCC, of funds if it doesn’t toe their political line.  It’s still a form of censorship of ideas since the opposing forces want the theater silenced in the end, or at least cowed to the point where it presents only approved plays—what Roth might call “regressive, reactionary, complacent, or, to put it another way, celebratory” works.  As the Dramatists Guild, the professional association of stage writers, explained in its letter to DCJCC opposing the firing: “Yes, private citizens have a right to object to the plays you produce by not funding you, and no, their actions do not constitute ‘censorship’ in the strictest sense, but the bullying tactics of this group in order to impose their political worldview on the choice of plays you present must not succeed.”  Obviously, these folks don’t subscribe to Voltaire’s eminent (and apparently apocryphal) admonition, “I disapprove of what you say, but I will defend to the death your right to say it,” which was the impetus for Lippmann’s 1939 disquisition.

But if an organized effort to quash a theater’s freedom of expression is made and has some chance of success, what’s the theater or its parent institution to do?  Last December, Sony Pictures Entertainment caved to threats against patrons and movie houses that dared to display The Interview following a cyber attack.  (The film company later released the movie in a group of independent theaters and on line, so far with no damage or injury.)   Birmingham Repertory Theatre in England and MTC in New York City both dropped plans to produce their threatened plays (though MTC reinstated the production, again with no harm done, after First Amendment and theater activists called the theater to task for its decision).  NYTW “indefinitely” postponed Rachel Corrie when Jewish contributors warned that they’d withhold donations if the play was staged.  (Rachel Corrie was never rescheduled at NYTW—the creators withdrew it—but was produced independently Off-Broadway later in 2006.  I saw this production and posted my report on ROT on 17 October 2010.  Roth presented a reading of Rachel Corrie at Theater J in 2013 and attended a performance at the Contemporary American Theater Festival in Shepherdstown, West Virginia, in 2007, where he participated in a panel discussion of the play.  Simultaneously, Theater J presented readings of Aaron Davidman’s Musings on the Parallel (But Radically Different) Lives and Deaths of Rachel Corrie and Daniel Pearl—later retitled simply Rachel Corrie, Daniel Pearl and Me.) 

First of all, the organization needs to determine diligently if the threat is credible.  It looks pretty clear that the one against Sony wasn’t, and official cyber-watchers said it probably wasn’t even before the picture company pulled the movie from distribution.  I can’t speak for the Sikh activists in Britain, but the Catholics and Christians who were exercised about Corpus Christi in ’98 didn’t manage to do any harm or disrupt the performances—other than by making MTC jump through some hoops.  DCJCC officials acknowledged that they weren’t having any problems raising funds even in the face of COPMA’s blackmail attempt, with Roth declaring in March of last year, “Best year ever.  We’ve raised over $100,000 more than we’ve ever gotten at this point in the season.”  So it seems likely that the ad hoc protest organization isn’t powerful enough to effect the Jewish Foundation’s or the community center’s finances to any serious degree.  Most agitators who attempt to stop a public display, presentation, or performance of something that aggrieves them are blowhards, at least in this country.  (We know that people were actually killed in Europe after a Danish newspaper published cartoons insulting Islam and Muhammad in 2005 and as I write this, the world is aghast at the murders in Paris last month over satirical cartoons in Charlie Hebdo.) 

Next, decide if the risk’s worth standing up for the right to express ideas freely.  MTC looked more craven than prudent when the free-expression activists finished with it after the theater decided to pull the plug on Corpus Christi.  Several artists tried to pull their work from Hide/Seek: Difference and Desire in American Portraiture in 2010 when the Smithsonian Institution removed David Wojnarowicz’s A Fire in My Belly video after Catholic League-led protests, though contracts with the National Portrait Gallery prevented the removals, and Smithsonian Secretary G. Wayne Clough damaged his reputation and his tenure.  Sony incurred the ire of patrons, press, and Hollywood artists for its withdrawal of The Investigation and was forced to do a lot of public fence-mending and blame-dodging.  

Consider, in contrast, the 1999 case of the Brooklyn Museum of Art and Chris Ofili’s The Holy Virgin Mary:  After the opening of the city-supported museum’s Sensation: Young British Artists from the Saatchi Collection, then-New York City Mayor Rudolph Giuliani joined with several other critics—John Cardinal O'Connor, the Archbishop of New York; the president of the Orthodox Union, America's biggest organization of Orthodox Jews, Mandell Ganchrow; and William Donohue, president of the Catholic League for Religious and Civil Rights, among them—to denounce the exhibit publicly, focusing particularly on one work, The Holy Virgin Mary, which the critics pronounced anti-Catholic because the artist used elephant dung and cut-outs of female genitalia among his media.  Ofili, a British artist of Nigerian heritage, explained that the painting was intended as a homage and that elephant dung in his African culture is considered sacred.  Ignoring the artist’s explanations, Giuliani and his supporters tried to close Sensation and when their efforts were thwarted, the mayor tried to have the museum evicted from the city-owned building it has occupied for over a century.  All these efforts failed when the museum stood up to the bullies and took Giuliani, et al., to court.  Not only did the arts organization win the battle for free expression, but the museum and its supporters looked heroic.  (The city had even withheld BMA’s subsidy and the court ordered the mayor to restore the museum’s funding.)

Washingtonian magazine observes that “the prospect of a politically neutered company could be unappetizing to [Theater J’s] fans.”  Additionally, some artists have already pledged not to work at Theater J in response to Roth’s firing and at least one highly regarded Washington director has withdrawn from a Theater J production she was to have staged later this season because remaining involved “amounts to tacit approval of the decision to fire Ari for his commitment to civil civic dialogue,” she feels.  The cast of Theater J’s current production, Tony Kushner’s The Intelligent Homosexual’s Guide to Capitalism and Socialism with a Key to the Scriptures, read a statement following the 19 December performance “expressing our shock and dismay at this violation of principles we cherish” and calling “on the full Board of the DCJCC to renounce the action its Executive Committee has taken.”  Kushner, who helped compose the cast’s letter, also wrote a strongly worded protest of his own earlier. 

Finally, especially for a non-profit institution that doesn’t depend on its earned income to survive, how much pressure should money—and money people (that is, deep-pocketed donors)—have on the decisions, the artistic ones in particular, of the parent body and its constituent units?  The arch-conservative, capitalist (and I deem reprehensible) Brothers Koch gave enough dough (reportedly as much as $100 million) to Lincoln Center to get the former New York State Theater renamed the David H. Koch Theater in 2008.  Should they now dictate the content of the performances presented at the theater?  Should they even have a say?  I say, no way!  No more than the Tisches get to tell NYU what to teach at the former School of the Arts just because they gave a large enough gift to buy TSOA its main building and got the school named after them in 1982.  So even if COPMA and its ilk could make a difference in the DCJCC’s funding if it didn’t dictate to Theater J in accordance with the bullies’ demands, the Zawatskys and their executive committees shouldn’t let them.  It’s the prerogative of donors to decide to whom to give and not to give, and they can make that decision on any basis they want, even political and religious.  But organizations like theaters and their umbrella institutions ought not to permit the donors to dictate their artistic policies and actions.  Not in a democracy, and especially one where a First Amendment and free expression is a fundamental right, enshrined not only in our tradition and heritage, but in our foundational law.  You don’t surrender that to a checkbook.

(Besides, getting a say in the policy decisions of an organization in exchange for money isn’t actually philanthropy—it’s a purchase.  Is that what JCC’s, churches, or universities that run arts subsidiaries are doing?  Selling their authority over content for a little ready cash?  It’s bad enough that rich donors get to put their names on everything if they give enough money; it should end there, with a hearty handshake and thanks.  Maybe Annie Oakleys and invites to galas—but not a say in the repertoire.   It irks me that David Koch has his name on a theater at Lincoln Center—or that there’s a Snapple Theatre on Times Square and an American Airlines Theatre on 42nd Street; that honor ought to go to someone who’d done something intrinsically—as opposed to extrinsically—valuable to what goes on in the building, something to advance the theater, dance, music, or art of the organization, university, or city.)

In the end, it’s a judgment call by the umbrella institution.  If actual peril is possible, obviously caution must be taken.  But if the threats and intimidations are bogus, the bloviations of self-important wannabes, take the shot.  Sony could have avoided all the bad press and name-calling—which they heartily deserved in my book—if they’d seen, as did many cyber experts, that there was little chance of actual harm (aside from what they’d already suffered from the original hack).  Both NYTW and MTC would gave come off looking more like the Brooklyn Museum, stalwart upholders of free artistic expression, than the weak sisters they appeared when they backed away from their controversial production—shows they chose, after all, because, presumably, they saw something worthwhile in the art and ideas on offer.  DCJCC and Carole Zawatsky clearly have the legal right to fire an employee (depending on the contractual obligations on which the parties signed off), but just as clearly something more was operating than just a fear of retaliation from the likes of COPMA and the fulminations of the hyper-Israeli lobby.  Stephen Stern, a long-time Theater J Council member, says, for instance, “One clear power that I agree rests with Carole is the hiring and firing of the Artistic Director, and finally she unequivocally exercised that, and is now in my view futilely searching with her ‘communications team’ for ways to justify its timing and impact.”  The problem seems to me to be within the DCJCC and its leadership, not in the outside community—or at least not just in the outside community.

I’ll close with remarks conservative commentator David Brooks made on PBS NewsHour on 9 January, two days after the terrorist attacks in Paris on the satirical newspaper Charlie Hebdo.  They should be taken to heart by JCC’s and other parent organizations for theaters and galleries:

And so my point for this country is that . . . if we’re going to expect, frankly Islamist radicals to tolerate offensive talk, then we have to tolerate offensive talk.  And we have to invite people to speak at our campuses who are offensive some of the time.  And we have to widen our latitude in that area.

And this should be a reminder that we have cracked down on that and we have strangled debate.  And if you are going to stand up and say I’m with Charlie, then you should also stand up at home and say, I protect people even if they offend me.

A Lawyer and a Life

By Kirk Woodward

[Some years ago, Kirk sent me a copy of his grandfather’s memoir, Obiter Dicta, which turned out to be a fascinating tale of the start of his law career in what was still frontier America. Ernest Woodward became a lawyer in Kentucky at the turn of the 20th century and practiced until the 1960s; his career spanned the first two-thirds of the last century and is not only an example of what a life in the law was like before law schools and 100-lawyer firms became the norm, but of a life on the edge of a still-untamed part of America. When Kirk suggested writing an article based on Obiter Dicta combined with his own recollections of his grandfather, I jumped at the idea. I think readers of ROT will agree, it’s a wonderful peek into a little-known corner of our national history. ~Rick]

It’s hard for us, accustomed as we are to the technological marvels all around us, to realize how recently life in the United States was vastly more primitive and basic. I doubt that human nature itself has ever been any different, but human tools definitely have changed. When I was very young, I used to visit my great-grandmother, who was very old at the time, and she remembered having seen Union troops on the streets of Louisville during the Civil War. Two generations between ourselves and the War Between the States – and one more long lifetime would reach all the way back to the Revolutionary War! And both those events seem buried in the mists of history.

As another example, I offer my grandfather Ernest Woodward (1877-1968), known to our family as Papaw. He was the paterfamilias of our family when I was growing up. He, my grandmother Mamaw (properly Allie or Alice), her sister Auntie, and their daughters Libby (Elizabeth) and Alice (Alice), lived, when I was growing up, in a distinguished old house in Louisville, Kentucky. Late in life Papaw wrote a memoir called Obiter Dicta (a legal term meaning, roughly, an incidental remark or a passing comment), and I’ve drawn much of the material in this article from that work.

Papaw started the law firm that became Woodward, Hobson, and Fulton, one of the largest and most successful firms in Kentucky (it has now merged with another firm), and he trained literally hundreds of lawyers, including his sons Fielden and Ernest, my father. Although I heard people call him “Judge Woodward” (people of distinction in Kentucky used to be called Judge, even if they weren’t one, and one parent was supposed to have given his child the first name of Judge in anticipation), he told me he refused a judgeship because he knew he would get too emotionally involved with one side or the other.

When I read about Samuel Johnson, my grandfather was my mental model, except that Dr. Johnson appears to have been a first-class neurotic, and “neurotic” is the last word I’d apply to Papaw. To me he was, on the contrary, placid, thoughtful, and even-tempered. He talked to us children as though we were adults, telling me once that he didn’t think God was interested in human affairs, and that he thought nuclear war would destroy the world – which I’m sure gave us sweet dreams. He simply didn’t patronize.

With this background in mind, here are some illustrations, drawn from my grandfather’s life, of how different the life in the United States used to be.

Today we know the “Old West” to a great extent through the filter of television and movies. My grandfather experienced it directly. He and his new bride spent their honeymoon on a covered wagon. (I thought this tale was a myth until I saw a photograph.) There is even a connection to a legendary character of the Old West: Papaw’s brother Clayton. I met him only once, when he was very old. He had left home at the earliest possible moment and gone to Texas, where he claimed to have worked with Billy the Kid. I figured out the dates once, and it’s possible. Clayton said Billy was misunderstood.

For years Clayton had a dog that most people referred to, whether accurately or not I don’t know, as a wolf. Dogs, they say, resemble their owners, and I see a resemblance between the dog, if that’s what it was, and Clayton. Basically Clayton was just a son of a bitch. When he was in his nineties he went to a wrestling match and got in a fight after the match with a wrestler, who tried to have Clayton arrested for using brass knuckles. The last I heard of him, he had pulled off the road and fallen asleep in his car; when a Texas Ranger knocked on the window, Clayton, somewhat disoriented, held the trooper at gunpoint for an uncomfortably long time.

Most of the illustrations my grandfather relates about the difference between “then” and “now” have to do with the law. It’s inconceivable these days that a person could be admitted to the bar, not only without a law degree, but without a high school diploma. By my grandfather’s account he went to school for less than fifty months, or about four years, in total, following which – what else? – he taught school, while he prepared to be a lawyer by reading Blackstone’s Commentaries on the Laws of England. He memorized the details of the judicial structure that Blackstone describes, only to learn when he began studying with a real lawyer that the court structure he memorized had been repealed centuries before.

All his life he maintained that if a student enjoyed reading Blackstone he would do well at law, and if not, then probably not, and he may have been correct, considering the hundreds of successful lawyers he mentored. He wrote, “Most of them had greater natural ability than I, and all were better educated. The only aid I gave them was the opportunity to demonstrate their ability and worth, and the advice to leave me when they were experienced enough to establish their own law practice.”

Papaw himself “sat” with a lawyer for a few months, passed the exam, and was admitted to the bar with a typed certification from the clerk of the Kentucky State Court of Appeals, which I have seen. Out in Kentucky, where he lived, many of the cases he tried involved the railroad. He was such a thorn in the railroad’s side that eventually it hired him. Today, of course, the railroad is just one of many transportation modes, and not the most important, but around 1900 it played a huge part in people’s lives.

My grandfather liked to tell the story – he may have even said it happened to him, but I’d guess it’s apocryphal – of the railroad lawyer who had to deliver a condolence check to the widow of a man killed in a railroad accident. It was a check for perhaps $1000 – a large amount for the times. A few years later, the lawyer had to deliver another such check, and found himself delivering it to the same woman. He was struck by the nature of the double tragedy and asked the woman what she was going to do now. “I don’t know,” she said, “but if I do marry again, you can be sure it’ll be a railroad man!”

Papaw was representing the railroad on December 20, 1917, when a train belonging to the Louisville and Nashville Railroad crashed through a local wooden train in front of it, killing forty-three people and injuring fifty more. Papaw should have been on the L&N train; he was in a town out in the state to try a case and had no place to stay, and the railroad agent invited him to come home with him. Papaw declined because he thought it would inconvenience the man’s family, who were on the train. The agent was killed in the crash, and his wife was found, injured but alive, on top of the engine. Papaw immediately advised the L&N Railroad that it ought to admit responsibility and pay complete restitution, and it took his advice.

There are certainly shoot-from-the-hip lawyers today, but not many, and I’m pretty sure you find them more on television than in law offices. In my grandfather’s time, shooting from the hip was a literal possibility. Ohio County, Kentucky, where he was from, was pretty rural, and guns weren’t exactly unknown there – Wyatt Earp’s two brothers, Virgil and James, were born there, as a matter of fact.

I know of two stories about Papaw involving guns. The first is simple, and involves a man who was being seriously bullied by the town tough. My grandfather advised him to buy a gun and, if accosted again by the thug, to shoot him dead. It appears that the bully may have gotten the word, because Papaw’s client never had to shoot him.

The second story is more elaborate, and involves a group with the ominous name of the Night Riders. When I first read about them, I assumed that they were somehow connected with the Ku Klux Klan, and perhaps there was some overlap. Basically, though, the Night Riders were the result of actions of the extremely powerful tobacco industry, which wanted to keep prices high by limiting how much tobacco a farmer could grow. Resentment at this policy led to armed groups opposed to the crop limits, and those groups degenerated into crowds of extortionists, devoted, my grandfather said, to “murder, arson and lawlessness.” Papaw was an officer of the state National Guard dispatched to bring some order to Eddyville, Kentucky, where the County Judge (the chief county administrative officer) and his family had been badly beaten by the thugs.

The Guard made the courthouse its headquarters, and the Night Riders announced that they would be holding a rally there. The County Judge, named Crumbacker, stated that if they did, there would be more deaths than there had been at the battle of Eddyville in the Civil War, and that he might have been beaten up once, but there was no way he’d let it happen again. My grandfather stationed soldiers throughout the meeting that took place that night, and told them to expect to have to try to arrest the main rabble-rouser when he started to speak. Preceding that man, however, was a former Confederate soldier who was supposed to introduce him. This gentleman began to speak and didn’t stop. He talked about his childhood and his youth and his service in the Civil War and his family, and eventually the crowd got bored, gave up, and went home. My grandfather always felt that this man had saved his life.

However, the Night Riders later moved into Ohio County, in a “reign of terror . . . during which property was destroyed and innocent men and women were cruelly beaten.” My grandfather was County Attorney at the time, and after about two years, at the end of his term, the Night Riders were largely defeated. About a hundred of them were arrested, and they went to my grandfather, of all people, to defend them. He told them he would – if they were innocent – and the room slowly emptied until they had all left.

Surprisingly, though, as a private attorney he did represent them later, and what’s more he persuaded them to plead guilty, in a neat bit of legal maneuvering. He followed their guilty pleas with motions for new trials for all the men, and the judge agreed not to rule on the motions as long as the presumably reformed men stayed out of trouble, so the effect was that the judge suspended their convictions. None of the hundred or so ever violated the court’s order, and so the Night Riders effectively dissolved.

Speaking of violent people in court, Papaw once had to cross-examine a man named Long John Wright whose record, my grandfather calculated, was that Wright had murdered somebody on an average of once every two years. “Needless to say,” Papaw wrote, “my cross-examination of him was both short and respectful!” (There’s no record whether Mr. Wright was ever convicted of anything.) The practice of law no doubt sharpened Papaw’s perception of people’s characters. He wrote that although it might be true that “all lawyers are liars,” he had also learned that “all liars are not lawyers!”

In his memoir Papaw expanded on his impressions of the differences between the way the law used to be practiced in his early years, and the way it was when he wrote down his recollections in the early 1960s. I could paraphrase his observations, but it’s better to let him speak. Some of the changes he reports are matters of the way things are done: “In the old days we wrote our briefs in long hand, and folded them tight to fit into the pigeon holes of roll top desks then in universal use, not only as desks but as filing cabinets. . . .“

Many changes, on the other hand, are changes of substance, like “the gradual disappearance of the one man law office, and the vast enlargement of the lawyer’s library. Sixty years ago, the average Kentucky lawyer neither possessed nor needed more than a Statute, Code and about 125 volumes of Kentucky Reports. He was a complete stranger in the Federal Courts. Today federal law questions require constant attention in every Kentucky law office, and a broadened field of local practice has resulted in ever growing law libraries in rural offices, until all important texts and cases can usually be found in any County seat in Kentucky.” He wrote those words, of course, before computers again revolutionized legal documentation.

He also noted that “In 1900, outside of Louisville and Lexington [the two largest cities in Kentucky], practically every lawyer was a trial lawyer, whose practice consisted in large part of boundary or land title disputes, criminal cases and divorce cases. The Court House was not only a temple of justice, but it was an amphitheatre in which the citizens flocked for instruction or amusement. . . . Now, many lawyers rarely go into the Court Room, and probably a third of them do not accept criminal cases, and many will not accept jury cases.”

My own father, Papaw’s son, is an example of this point. Dad did a fair amount of trial work in his early years as a lawyer, just before and after World War II, but by the time I was aware of what he did for a living, in the 1950s, his entire practice was tax and insurance law, and I never heard about his participating in a trial, except when he was recruited as part of the team defending the then Cassius Clay on draft evasion charges, and Dad didn’t speak at that trial.

“The entry of women into law offices,” Papaw writes, “has revolutionized the size, appearance and work product of law offices, and such changes have all resulted in vast improvement of law office appearance and product.” The perfect gentleman! “Some lawyers have betrayed their clients or proven unfaithful to the trust imposed, but never in my long experience as a lawyer has any woman associate betrayed the trust imposed in her.” High praise indeed, considering how many lawyers he knew over the years. I imagine he would be delighted to see a Supreme Court with three women on it. I know I am.

Speaking of my father’s specialty, tax law, my grandfather wrote, “I refused to read tax cases, because the amount involved in that field was so small, but I concentrated on studying the law applicable to railroads, because employment as railroad counsel was the best paid and most highly regarded. Now, the attorneys’ fees paid by Kentucky taxpayers is tenfold the amount paid by railroads.” That ratio, needless to say, has widened enormously since he wrote those words.

I have sampled my grandfather’s writing and experiences here to suggest that the distance between, say, 1900 and today is much greater than simply the distance between two sets of years. I will give just two more examples of that great distance, the first from Papaw’s writings and the second from my own experience. Here is the written example:

“At common law and in most jurisdictions before 1900, the family relationship was a matter for private decision by the head of the family, or by litigation, but now the juvenile courts, the domestic relations courts, and the child welfare movement have made most family controversies a problem for the psychiatrists and trained social service experts whose numbers exceed the number of Judges, and who are dealing with such problems, not as personal disputes or problems to be determined by a court in private litigation, but as matters of public welfare to be corrected at public expense and in the public interest.”

And here is the personal example: my grandfather smoked a pipe. He smoked it continually, and he enjoyed the rich aromas derived from various brands of tobacco. (As children, we did too.) His clothes, his house, everything were suffused by the smell of pipe smoke. Today a number of men smoke cigars because they like the smell, or the way they look when they hold them, or both, and cigar bars and cigar magazines are popular, but to my knowledge I don’t know a single person today who smokes a pipe. Times have changed.

I can still recall the smell of Papaw’s pipe.

The First Amendment & The Arts

On 29 March, the New York Times reported that a student production of Terrence McNally’s Corpus Christi, which depicts a gay character who resembles Jesus, was canceled by Tarleton State University in Stephenville, Texas. The university authorities cited “safety and security concerns” for the cancellation.

The next day, the Times announced that the New York Theatre Barn would present a new musical based on the 2008 cancellation of a Texas high school production of Rent. Speargrove Presents, which the company has presented as a reading in February and a benefit concert on 5 April, relates the story of Rowlett High School’s intention to stage Rent: School Edition, a milder version of the 1996 Tony Award- and Pulitzer Prize-winning play which depicts gay and straight characters contending with AIDS, drug use, poverty, love, and homelessness. Some parents in Rowlett felt that the choice of Rent for a student production “was inappropriate because it glamorizes drug use and homosexuality.” (In the actual incident, the Rowlett High students performed the songs from Rent at Southern Methodist University. They weren’t permitted to do the show at their school and they never got to perform the whole play.)

Similar barriers have been thrown up at schools in Newport Beach, California, and Bridgeport, West Virginia. School productions of Grease (for the drinking, smoking, and kissing) and The Vagina Monologues have also run into objections resulting in cancellations in recent years.

Corpus Christi, Rent, and The Laramie Project, Moisés Kaufman and his Tectonic Theater Project’s 2000 documentary play about the murder of gay University of Wyoming student Matthew Shepard and its repercussions, have been prime targets for censorship and suppression across the country—indeed, around the world. So have other plays from Damn Yankees to My Name Is Rachel Corrie. The suppressors have been government officials from senators and congressmen to local officeholders, religious leaders, and other authorities like the Texas university president as well as organizations and ad hoc groups with agendas or axes to grind. The targets have been well-known artists like McNally and big theaters like the Manhattan Theatre Club to teenaged authors and college or high school theater programs. Lawsuits, political and social pressure, withdrawal of funding and support, threats of violence and death, and just about any other tactic you can imagine have been levied against theaters, producers, playwrights, and casts to make them stop playing or creating scripts some people don’t like. The reasons range from political to religious to social and occasionally even personal—but the attempts to censor performances, some of which have been successful while others have failed, have all had one thing in common: some group unilaterally decides that no one ought to see a play because they object to something in it. (I’m focusing here on theater incidents because . . . well, that’s my field. But we all know of identical efforts to stop art exhibits; book publications; film productions and distribution; TV broadcasts; and musical performances, recordings, and sales.)

This drive to prevent provocative plays from being seen is not an exclusively American phenomenon; there have been prominent incidents abroad as well. For example, Behzti, a British play by Gurpreet Kaur Bhatti, a Sikh woman, depicts murder and sexual abuse in a Sikh temple. It caused a furious response in the Sikh community in Birmingham when a local rep theater produced the play in 2004 and the company was forced to withdraw it to avoid violence. Other countries, however, don’t have a First Amendment that’s supposed to protect artistic expression and which is enshrined in the basic law of the land, namely our Constitution. Not only are our governments not supposed to suppress free expression, even of ideas abhorred by the majority of the people, but they’re supposed to protect us from attacks by others who want to prevent us from speaking out. Law enforcement authorities and judges aren’t supposed to side with the suppressors (unless an actual law is broken, such as incitement to violence). Now, in many of the cases of would-be censorship by intimidation, the civil authorities have stood up for the First Amendment rights of the artists and audiences—but not always.

I should point out that the First Amendment constrains only government action—local, state, and federal—not private conduct. In my house or my private business, I’m allowed to censor your speech. Public schools, whether primary and secondary schools or state colleges and universities, are arms of the government, however. Though courts have carved out some exceptions to civil liberties within school buildings, the Constitution and its First Amendment do apply there. Private schools may operate under different rules, but the spirit of the First Amendment and the free exchange of ideas and opinions should nonetheless exist within their walls. After all, what should we be teaching our citizen students? How to use authority and control to suppress ideas we fear or of which we disapprove? Or to confront them with argument, reason, and truth? I know where I come down.

I ought to confess here that I’m pretty much a First Amendment absolutist. One of my favorite theater lines is from Peter Stone and Sherman Edwards’s musical 1776. Stephen Hopkins, the iconoclastic and cantankerous delegate from Rhode Island, declares, when asked to vote for or against an open debate on independence, declares: “Well, I’ll tell y’—in all my years I never heard, seen, nor smelled an issue that was so dangerous it couldn’t be talked about. Hell yes, I’m for debatin’ anything . . . !” That fairly well sums up my feelings: we should be allowed to talk about anything in this society, even stuff most other people don’t want to hear. The only proper response to speech we don’t like is more speech. You don’t cut people off when you don’t like what they’re saying, you debate them.

The First Amendment gives people the right to speak, write, or print whatever they believe even if it offends others. It does not, however, insulate them from the repercussions. People have the right to express their opinions, but that doesn’t mean the rest of us must accept or condone them, or allow them to go unanswered. Anyone may preach what he pleases, including anti-Semitism, anti-Catholicism, racism, fascism, and any other ugly idea man has devised, but he may not escape public opprobrium. Your right to say what you want, in other words, doesn’t trump mine. That, too, is guaranteed by the First Amendment. The government may not stop you, but I may respond in kind—or even unkind—if I’m so moved. When the Catholic Church found Rolf Hochhuth’s The Deputy objectionable in 1964, Church representatives wrote editorials and preached sermons in response—and Rev. Edward A. Molloy wrote and staged The Comforter in New York and Juan Antonio de Laiglesia composed God’s Deputy (El Vicario de Dios, 1965) for production in Madrid. When we hear ideas that we feel are detrimental to the society in which we live, we may not suppress them, but we must speak out against them. Our response to objectionable speech or ideas must always be to speak out loudly in opposition, not simply allow them to pass under the mistaken impression that the Constitution permits their dissemination but not their contradiction. The former is a right; the latter is its concomitant responsibility.

We are, in essence, required to answer noxious ideas with opposing words. The government can't punish someone for constitutionally protected speech, but the rest of us can shun her, berate her, denounce her, boycott her business and appearances, editorialize against her, hold her up to public ridicule and opprobrium, and so on. If she's a politician, we can turn her out of office (or not elect her to one). We need to remember that we have the power to act against people who say things we don't like—we aren't constrained to let people spout off with impunity; we just can't use the government to act for us. We have to let people say what they want. We don't have to just sit and take it. I think we forget that a lot of the time. If someone promotes racism or xenophobia, we may have to let him express his beliefs—but we should make sure that all of us who oppose him let him know it as loudly as we can. Thomas Aquinas admonished: "The law cannot command all virtues and forbid all vices"—indeed, it should not. We have to do some of it on our own as citizens—through the marketplace and the public forum.

I don't hold with censorship either by official fiat or by intimidation. Shutting My Name Is Rachel Corrie down at the New York Theatre Workshop in 2006 because it presents a sympathetic view of an opponent to Israeli policy (with which, by the way, I didn't agree myself) and might "offend" some Jews is about as wrong an act as I can imagine short of killing the playwright or bombing the theater (which some protesters threatened in the case of Corpus Christi and other performances). The Constitution guarantees freedom of speech—but there's no guarantee against having your feelings hurt!

I’d make exceptions for true national security—not the phony kind governments often invoke—and actual danger of injury or the protection of innocents like children and crime victims. A school, particularly a primary or secondary school, might be a special case because of the ages of the audience and the participants and because the society is sort of captive, but when I read that a Connecticut principal canceled an Iraq war play in 2007, I was disturbed. Since the script of Voices in Conflict had been drawn from first-hand accounts of soldiers fighting in Iraq, everyone, even high-schoolers (who could be joining the soldiers in a year or so), ought to hear what they say. (One letter was from a 19-year-old graduate of the school who’d been killed in combat a few months earlier.) Even if the script was edited to favor one perspective, then you write or speak about the alternative viewpoint; you argue with the play, but you don't censor it. That's the lesson the school ought to be teaching. Not censorship and suppression.

I once said that if someone wrote and produced a pro-Nazi or anti-Semitic play, I might not go see it, but I hoped I wouldn't join a campaign to shut it down. During the heated dispute over the original New York staging of Corpus Christi in 1998, William Donohue, president of the Catholic League for Religious and Civil Rights, placed an ad in the New York Times announcing the Broadway production of Shylock and Sambo, a fictitious play Donohue characterized as featuring “gay Jewish slavemasters who sodomize their obsequious black slaves.” In a subsequent press release, Donohue asked, “Would the Arthur Millers of this world rush to defend [such] a play?” Of course Jews and African Americans would be exercised if a play like the one Donohue describes were mounted, and I'm sure there’d be protests and denunciations. I can’t speak for the late Arthur Miller, a fierce advocate of freedom of expression, but as a theater person myself, I’d hope that there wouldn’t be calls for censorship—and certainly not violence. (I vehemently reject the stance taken by the opponents to the NYTW’s proposed presentation of Rachel Corrie, but in their favor I note that the strongest element in their protest was the withdrawal of financial support. That may have been tantamount to blackmail, but it’s hardly a bomb threat. It’s also the right of people not to donate money to any institution they don’t want to support, for whatever reason. I just don’t think their cause was righteous in this instance.)

As Leonardo Shapiro, a director I knew, said, by way of analogy: “The point of an oracle—you support the oracle, you don’t support what it says. . . . When Oedipus went to the oracle and it gave him essentially his death sentence, he didn’t say, ‘Well, I’m not going to fund you anymore.’” This was his argument for supporting artists, whom he saw as oracular, who don’t always say what we like. We can look at this another way—that we need to hear what our rogue artists say because it’s vital to our society’s health. The best voice for this viewpoint is that of Walter Lippmann. (I’ve quoted this passage in an earlier, related ROT column, “Degrading the Arts,” 13 August 2009.) In "The Indispensable Opposition" (1939), the political commentator cautions:

It is all very well to say with Voltaire, "I wholly disapprove of what you say, but will defend to the death your right to say it," but as a matter of fact most men will not defend to the death the rights of other men: if they disapprove sufficiently what other men say, they will somehow suppress those men if they can.

Lippmann goes on to argue, though, that we need to hear these opposing, unsettling voices since, "because freedom of discussion improves our opinions, the liberties of other men are our own vital necessity." He likens the situation to a visit to a doctor whom we pay "to ask us the most embarrassing questions and to prescribe the most disagreeable diet." While we are free to seek additional opinions, we must listen to them all to determine the best course. As Lippmann observes, "[A]ny . . . sensible human being . . . learns more from his opponents than from his fervent supporters." We may not like what Rachel Corrie, Terrence McNally, or those soldiers in Iraq have to say, but we (yes, even high-schoolers) should hear it. We need to hear it.

There seem to be two strains of objectionable art which raise the hackles of the suppressors. One group, like Rachel Corrie and Voices in Conflict, expresses or even espouses political ideas or positions with which some segment of the society disagrees. In Rachel Corrie, it’s support for Palestinians and criticism of Israel; in Voices, it’s criticism of the war in Iraq. The other category raises a social objection: The Laramie Project is accused of promoting or defending a “gay lifestyle”; Rent depicts homosexuals and drug use. The latter group also includes socially objectionable art that contains a religious aspect, such as Corpus Christi and Behzti. McNally’s play raises objections among Christians, especially Catholics, not because it depicts gay characters (or even gay Christian characters) but because it depicts a gay character who resembles Jesus. Protestors find this blasphemous and have attempted to stop the play from being staged by one means or another ever since it first appeared. (When the 1999 London première of Corpus Christi was staged, a British imam issued a fatwa against McNally.) The violent threats against Behzti (the title means ‘dishonor’ in Punjabi) were prompted, the protesters claimed, because it was set inside a temple, not because of the subject matter.

At least on the surface, these slightly different kinds of art seem to demand different approaches. While superficially they all look like the same kind of targets for suppression and censorship, they’re not exactly alike. The plays which express political thought that some (even most) people don’t like are the simplest to defend. Political speech is exactly what the First Amendment was carved out to protect. According to the most fundamental belief upon which this country was founded, we’re all allowed, even encouraged, to speak our minds about the ways and means by which we’re governed and how our society is organized. We’re even allowed to preach communism and fascism, even theocracy or monarchism. And no one can say us nay. If Katherine Viner and Alan Rickman, who compiled Rachel Corrie from the subject’s diary and her letters and e-mails home, want to oppose the Israeli practice of bulldozing the homes of Palestinians whom the government accuses of supporting terrorism, they’re not only allowed to do that here, but we’re supposed to applaud them for speaking their minds. We’re supposed to listen to what they have to say, as long as they don’t promote violent acts, and then respond with debate, argument, and speech. Denying them the stage, as the opponents to the NYTW production did, not only doesn’t really work—the play was produced Off-Broadway later that year—but it also forces those unpopular views underground where they fester and roil until they eventually burst out in uncontrolled rage and violence. That’s why the First Amendment was created—so we can all hear the many voices and respond openly so that the best ones, the reasonable ones, the beneficial ones move to the front, but the rejected ones don’t feel ignored and disenfranchised. That’s what Stephen Hopkins means: “Hell yes, I’m for debatin’ anything!” As he reminds us, no idea is so dangerous that it can’t be talked about. If you aren’t convinced after you listen, fine. That’s how democracy works.

The art that offends someone’s moral sensibilities, especially their religious beliefs, seems to be a different case. A difference of political opinion with a play’s point might make you angry, but it won’t hurt you. If a playwright opposes the war in Iraq (Voices in Conflict), supports the Palestinian cause (Rachel Corrie), objects to the existence of the prison camp at Guantanamo Bay (Guantanamo: Honor Bound to Defend Freedom by Victoria Brittain and Gillian Slovo, 2004), or disapproves of the use of torture (Christopher Durang’s Why Torture Is Wrong, and the People Who Love Them, 2009), you might feel strongly about their positions but they won’t harm you. When a personal ox is gored, however, people do feel hurt. They feel as if the axioms of their lives are being disrespected or dismissed. How do you defend that? It’s easy to say, like Voltaire, “You have to let them say their piece. It’s their right”; but it’s not so easy to abide by that injunction.

First, there are different ways that art addresses these kinds of topics. The most prominent in this country, the plays we see and hear about because they get high-profile press coverage and are created by recognized artists, fall into the category I’ll call criticism. It was never McNally’s purpose simply to tear down Catholicism. He didn’t want just to insult Catholics; he’s a Catholic himself. He set out to make a statement about feeling left out of the church to which he belonged, being rejected by his own faith. He had a point to make—a valid one, I think, one that should be heard—though dissenters can disagree with his methods and effectiveness. The Tectonic Theatre people weren’t intending to “promote a gay lifestyle.” The Laramie Project is examining a murder for which the creators perhaps indicted an entire community, and for which they blamed lack of tolerance and acceptance, but they didn’t compose Laramie as an argument for living a gay life. A plea for tolerance is not an indictable offense—it’s supposed to be a tenet of our democracy. Moisés Kaufman and his company think we should extend that tolerance to gay people; you may disagree, even vehemently, but hearing their argument won’t hurt you. Remember, there’s no “issue . . . so dangerous it couldn’t be talked about.” To the best of my knowledge, no one has been damaged by having seen Corpus Christi: the Earth did not split nor the Heavens rend.

Let’s also make a clear distinction between assault and criticism. What McNally, Kaufman, and others are doing is criticizing—they’re not attacking anyone. Many of the protesters don’t distinguish among disagreeing, questioning, attacking, and blaspheming. Any opposition, no matter how reasoned, is seen as betrayal.

The other kind of art to which people object on grounds of moral values is more troublesome. I’d call it “insult art.” We don’t see that much here, though it does occur. (The most prominent examples are the notorious caricatures of Jews that appeared in Der Stürmer in Nazi Germany. I’d categorize those 2005 Danish anti-Muslim cartoons as deliberately insulting. The cartoonists and editors seemed to want to generate the kind of reaction that they got so they could point to the Muslim world as inherently violent and intolerant. It makes Muslims easier to hate.) I think this kind of art is rare in the U.S. for several reasons, and this isn’t the place to analyze this phenomenon. Basically, there aren’t enough radicals here to produce that kind of art outside a small, dedicated group. There are, for instance, musical groups allied with the white supremacist/neo-Nazi movement, and they cut CD’s; but the music doesn’t circulate much outside that movement. We also have too many checks and balances in our production process for public art of that ilk to come to the fore. Too many hands have to get hold of a play before it gets before an audience and a gratuitously insulting script isn’t likely to get past many before someone just spikes it.

(The recent episode of South Park, the satirical TV show, in which Mohammed is portrayed wearing a bear costume, raised threats from a New York-based Islamic group. The group issued a warning that the show’s creators, Trey Parker and Matt Stone, might “wind up like Theo Van Gogh,” a Dutch filmmaker who was murdered because he produced a film to which some Muslims objected. I’m not sure that South Park’s satire fits the insult art criteria since Parker and Stone poke sticks in almost everyone’s eye sooner or later. Satire is closer to criticism to my way of thinking; however, knowing the prohibition among Muslims of depicting the Prophet, Parker and Stone do seem to be deliberately provoking a reaction they must have known would come in some form. Caution and forbearance could be construed as cowardice—which is exactly what Parker and Stone have accused their network, Comedy Central, of displaying. On the other hand, how can you justify openly triggering death threats and potential violence just to make a point? It’s a hard call to make. I am sure of one thing, however: making the threat is unequivocally wrong in this society, no matter how aggrieved you are.)

Still, in the end, the same argument holds for this kind of art, however reprehensible it may seem. If a play—say, like the one William Donohue invented for his ad (and we should note that it’s an imaginary script)—does say awful things about someone’s religion, personal beliefs, or ethical system, we need to let it be seen and heard because it’s a safety valve. It’s painful to get the splinter out, but you have to to let the wound heal. If the sentiment festers and goes underground, it will just grow unseen until it explodes with more force than the simple play, song, essay, or painting. (I wonder how famous Andres Serrano’s Piss Christ or Chris Ofili’s The Holy Virgin Mary would have become if Al D’Amato and Jesse Helms, in the first instance, and Rudy Giuliani, in the second, hadn’t made a clamorous fuss over them. The cause to which the defenders thronged was the suppression, after all.) However offensive it may be, blasphemy is not a crime in this country. Furthermore, allowing such expressions out into the light not only exposes them to the scrutiny and opprobrium of the people, it also exposes those who harbor those ideas. Let them come forth and be heard—and seen.

We can, however, simultaneously defend the right of bigots and agitators to publish what we find repulsive and exploitive and still speak out against the content of that art. We have the right, even the duty, to call attention to what we find objectionable in it, to explain why it’s unacceptable and call for our fellow citizens to repudiate the philosophies expounded in it. We can campaign against the ideas expressed while, at the same time, protecting the right of our opponents to publish these ideas. Ideally, the result of a convincing campaign of speech will connect with another founding principle of our society: the market economy. If we persuade enough people that what’s being sold in the marketplace of ideas is wrong or harmful, they will stop buying what’s sold in the marketplace of merchandise, too. Admittedly, this is a longer and less certain process than simply banning the product by legislation or threat, but it’s the correct way to go about it in a democracy which truly believes in the principal of free speech.

Now, I want to say something about the impulse some among us have to make public insults to other people’s backgrounds or beliefs. Pleading a political or social cause, however unpopular, is sacrosanct. I don’t believe there should be any restrictions on that kind of speech in art or any other medium. (I’ve already carved out the few exceptions I accept for free expression.) There are, however, things we’re permitted to do that we shouldn’t necessarily go ahead and do just because we want to and can. I’m free to walk down the center of a narrow sidewalk so that no one can pass by in either direction, but it’s thoughtless and inconsiderate to do it. I can slip into a newly-vacated parking space even though I see that someone’s been waiting for it (“Face it, lady, we're younger and faster”), but it’s mean and selfish. As we become more and more civilized, as we have when we decided that owning other human beings or passing laws that disenfranchised certain groups wasn't right, we expand the notion of what proper behavior includes. Now we’ve learned that calling people "nigger," "kike," "broad," or "faggot"—or even "baldy," "gimp," or "four eyes"—is wrong, too. I have always felt that what’s called "political correctness" is really just another term for politeness. Now, I don't think that politeness and courtesy should be legislated or coerced, but they certainly should be encouraged. Essentially, as I see it, being "politically correct" is simply refraining from calling people derogatory names or saying ugly things about them because of their ethnicity, race, gender, sexual preference, or religious beliefs. Those who disparage this behavior by putting it down as "political correctness" are saying it's all right to be mean because it expresses true feelings and the First Amendment gives them the right to say what they want, no matter whom they hurt. Well, yes, it does (outside of libel and slander). That, obviously, is where courtesy comes in. It fills the gap between what the law prohibits me from doing (such as murder and assault) and the anarchic savagery of the jungle. It teaches, "Yes, you can say or do such and such—but you shouldn’t." It says, "The law permits this act, but for society to work smoothly for everyone, it's counterproductive and unpleasant." The First Amendment permits the exhibition of art that insults and disparages others, but my response is that it should be the responsibility of the rest of us to display our disgust and opprobrium for any artist who does. I fall back on my earlier assertion: the Constitution protects the right to speak freely, but it doesn’t indemnify the speakers from the response of their fellow citizens. We get to let those people know how we feel about their creations and their ideas—and we should, as forcefully as we can (within the law, of course).

Artists are the oracles and whistle-blowers of society. Painter David Wojnarowicz, vilified by the forces of suppression because he used sexually explicit images in his art and bitterly indicted the American establishment for ignoring homelessness and the AIDS epidemic, was described by Leo Shapiro as "like the canary in the mines—the ones that die first." (Wojnarowicz did die, of AIDS in 1992. He was 38.) Do we dare lose these essential voices? Or even muffle them? If art "hold[s] the mirror up to nature"—including our own nature and that of our society—can we afford not to hear what it tells us? Even if we don’t want to, and even if we disagree with what it says? Like Lippmann’s unwilling patient, we imperil the health and survival our democracy if we don’t.