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27 Spotlight Right: CITIZENS UNITED v. MRS. FARNSWORTH; Does the 1st Amendment Protect Theater Companies?

Tuesday, January 24, 2012

CITIZENS UNITED v. MRS. FARNSWORTH; Does the 1st Amendment Protect Theater Companies?

In April of 2004, the Flea Theater, a non profit 501(c)3 corporation produced AR Gurney's "Mrs. Farnsworth", a biting satire attacking then President George W Bush, as he was beginning his campaign for reelection.  At the time I was a member of the Flea's  BAT acting company (though not in the cast of “Mrs. Farnsworth”) and I remember the show quite well.  Director Jim Simpson opened his rehearsals, and so all of us in the company had the chance to see the show's stars, Sigourney Weaver and John Lithgow in the rehearsal process.  The play raised many questions about power, wealth, and America, but one question that never came up, was whether the Flea had a Constitutional right to produce such an overtly political play during an election year.

Fast forward to 2010.  In the now famous or infamous, CITIZENS UNITED v. FEC case, the Supreme Court invalidated a law that banned Citizens United, a non profit company, from broadcasting it's movie "Hillary" through cable video on demand.  The McCain Feingold Bipartisan Campaign Reform Act had prohibited such independent expenditures in support of, or against specific candidates in 2003.  Now to be fair, Mrs. Farnsworth would not have been subject to McCain Feingold, as the statute only applied to broadcast political speech, not political speech delivered live on stage.  However, the justification for this Congressional action, namely undue influence by corporations over elections, could just as easily be applied to any corporate speech, if Congress viewed it to be dangerous to the democratic process. 

Comparing the degree to which these two corporations were influencing elections is tricky, clearly as a video on demand product, “Hillary” had the potential to reach far more viewers than could attend “Mrs. Farnsworth” in the Flea's 100 seat house.  On the other hand, "Mrs. Farnsworth" starred two of the most famous actors in the world, so even those who could not attend, might very well be exposed to their implied endorsement of the anti Bush message.  And "Mrs. Farnsworth" was not alone, at the same time, another celebrity, Tim Robbins was slightly uptown performing in “Embedded”, another anti Bush play, at the Public theater, another 501(c)3 corporation. Given the star power and publicity machines behind these productions, it is not absurd to imagine that they could have as much or more influence on voters than "Hillary".  This being the case, there is no reason to think that Congress would be any less justified in banning “Mrs. Farnsworth” then they were in banning "Hillary".  Thankfully the Supreme Court, in it's decision, reaffirmed the 1st Amendment rights of corporations such as the Flea, the Public Theater and Citizens United to engage in political speech.

As a result of the Citizens United decision, we have seen a call from many on the left, and somewhat amazingly even from theater artists, to do away with "corporate personhood", the nearly 200 year old precedent, first decided in 1819 in DARTMOUTH COLLEGE v. WOODWARD, which grants corporations the same Constitutional rights enjoyed by individuals.  What is stunning about theater artist’s support of this change to the Constitution, is that almost every theater company in America is a corporation.  Theater is by its nature a corporate art form, the product is result of shared input, and no one individual can claim credit or responsibility for it.  Theater artists are asking the government to change the law in a way that denies theater the free speech protections guaranteed to novelists, painters and poets.   The implications of such a change are enormous, and we don’t have to look very far in the past to see why.

In 1971 Southeastern Promotions, LTD, a New York based corporation which produced touring shows, applied for the use of the Tivoli Theater in Chattanooga Tennessee to perform the hit musical “Hair”.    That application was denied by the city owned theater, because of the nudity contained in “Hair” which officials found would not be “in the interest of the community”.   The producers sued, and in SOUTHEASTERN PROMOTIONS, LTD. v. CONRAD the Supreme Court ruled in their favor, ensuring that theatrical productions had the same 1st Amendment rights previously affirmed for books and films.  If corporations had no Constitutional protection, it is obvious that Southeastern would not have had standing  in the Court to defend their 1st Amendment rights, because they would have had no 1st Amendment rights.  The point is obvious, when one opposes “corporate personhood”, they are supporting the power of Tennessee or any state to ban theatrical productions for any reason.

Does anyone doubt that given the chance, a state like South Carolina might decide to ban plays that depict homosexual relationships, or which mention abortion?  The ability of the state to summarily shut down theater performances which they do not think are in the interest of the community is a horrifying prospect, and one which I believe almost all theater artists would oppose.  I ask everyone involved in theater to think very carefully about these issues before deciding their stance on “corporate personhood”.   The right to freely express social and political ideas on stage is vital, not only to art, but to the health of our democracy.  If a 90 minute attack ad presented through video on demand is the price we must pay for that freedom, I humbly suggest it is worth it.


At February 5, 2012 at 12:32 PM , Blogger campirinha said...

Well written, Dave, you had me half-convinced. But on reflection, I think you do a little sleight of hand in this post.

Theater companies are not people. But the individuals involved in each production are. The actors, the director, the writer --- all of these people have 1st amendment protections that would keep the state of Massachusetts from shutting down a play that besmirches pro-choice activists. I have no doubt that the Courts would rule against any state that tried to shut down a theater production...but not based on the notion that the theater company is a person.

At February 6, 2012 at 4:50 AM , Blogger Dave Marcus said...

All corporations are made up of flesh and blood people. "Hillary" had a director, writer and editor, all of whom were employees of a corporate entity, just as playwrights and actors are. And in both the case of Mrs. Farnsworth and Hillary, the producing corporation got its funding from hundreds if not thousands of donors, so I'm not sure why there would be any distinction there, shouldn't a film have the same protections as theater production? It is possible to do theater without a corporate structure, Blue Box for example is not a corporation, but it would also be possible to produce a political ad without a corporate structure, however in both cases, only those wealthy enough to pay for such efforts themselves (or in BBs case, willing to scale down production costs dramatically) would have their speech protected. I like the notion you have though, that its not so much a question of whether corporations have rights, but if shareholders and employees of that corporation retain their rights within the corporate structure, or forgo some of them to gain the benefits of corporate status. Remember, McCain Feingold's limitations applied to all corporations, including sole proprietorships, so clearly they did not envision those individuals keeping speech protections within the corporation.


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