In 1999, a San Francisco gym put up a billboard with an illustration of space aliens and a warning: ‘‘When They Come, They’ll Eat the Fat Ones First.’’ Outraged activists for the overweight protested outside of the gym, holding signs that said ‘‘Eat Me.’’ The gym took the billboard down, but the activists used momentum from the protests to successfully lobby for a city ordinance banning discrimination based on height and weight.
Krissy Keefer, director of Dance Brigade, a company that produces political dance such as ‘‘Dance of the Endangered Species,’’ soon became the first San Franciscan to take advantage the new ordinance.1 The standards of modern ballet require dancers to be lithe and thin, because body fat obscures the separations between parts and, it is thought, unduly accentuates the trunk. Being thin also helps a dancer perform ballet moves quickly and artfully and makes it easier for a male dancer to lift his partner. Keefer, however, regards ballet’s body-type criteria as a feminist issue, because, she says, they require a dancer to ‘‘have an unhealthy relationship’’ with her body, leaving ballerinas on diets so strict that they are vulnerable to eating disorders.
Keefer had a particularly keen interest in ballet’s body-style requirements because of her medium-sized daughter, Fredrika. The elder Keefer had brought nine-year-old Fredrika to an audition for the San Francisco Ballet’s preprofessional school. The school’s Web site states that ‘‘the ideal candidate is a healthy child with a well-proportioned body, a straight and supple spine, legs turned out from the hip joint, flexibility, slender legs and torso and correctly arched feet, who has an ear for music and an instinct for movement.’’ The school promptly rejected Fredrika for not having the right body type to succeed as a professional ballet dancer.
The Ballet instead offered Fredrika a full scholarship to its Dance in Schools Program. School admissions officers said that if she could prove the school’s initial impression wrong or if her body style changed, Fredrika could enter the preprofessional regimen later. But Krissy Keefer was not mollified. Like many stage moms, she was convinced that her daughter was destined for great things. Keefer persuaded herself that the narrow-mindedness of the ballet school was interfering with nine-year-old Fredrika’s ‘‘career.’’ The elder Keefer told ABC’s Good Morning America that ‘‘I need a program for my daughter that actually could satisfy her professional aspirations.’’
Keefer filed a complaint with the San Francisco Human Rights Commission, claiming height and weight discrimination and, because ballet schools enforce height and weight requirements less stringently for boys—largely because the pool of boys willing to pursue ballet is much smaller than the pool of girls—sex discrimination. Keefer told the media, ‘‘I am mad at them for not seeing how talented she is, for having such a narrow, myopic view of what makes a dancer.’’ The San Francisco Ballet, Keefer wrote in a press release, ‘‘should have a program that reflects the real needs of San Francisco’s citizens, and the SFB school should foster a program of physical, emotional and mental well-being of its female participants as it pursues artistic excellence.’’
Keefer’s complaint charged that Fredrika’s rejection had caused her ‘‘confusion’’ and ‘‘humiliation.’’ Fredrika, however, actually seemed reasonably content. She told the San Francisco Chronicle that ‘‘I’m sad I didn’t get in, but I’m happy because I like the Pacific Dance Theater [the school she had been attending] a lot and I didn’t want to lose that.’’ In fact, any confusion and humiliation suffered by Fredrika may have been the result of her mother dragging her into a media circus. Krissy subjected Fredrika to press conferences and television interviews, forcing Fredrika to relive her ‘‘rejection’’ countless times and to have her body repeatedly held up to public scrutiny.
Keefer’s legal action drew howls of protest from dancers and dance critics. Paul Ben-Itzak, editor of Dance Insider magazine, wrote that ‘‘what we have here is a ballet mother whose vanity is vicariously wounded, and who is shamelessly, in the guise of public-spirited concern, trying to hurt the San Francisco Ballet because it, in her view, hurt her daughter Fredrika.’’ Dance critic Octavio Roca added: ‘‘We are in a world where artistic canons are devalued, and every opinion, no matter how biased or uninformed, is worth the same as every other....Inthe name of democracy, with the laudable goal of nondiscrimination, we end up bypassing excellence while propping up the mediocre and the bland.’’ Even Lawrence Gold-huber, a six-foot-one, 350-pound modern dancer, mocked Keefer’s complaint, and admitted that he preferred watching thin dancers, particularly in ballet. ‘‘Short people don’t get hired by the NBA,’’ he noted, ‘‘Should fat people be in the ballet?’’
Critics also pointed out that little Fredrika was hardly being deprived of a potential career in dance. Many other dance styles, including musical theater, disco, modern dance, and most ethnic dance types, do not have stringent body type requirements. None of this swayed Keefer, however, who told a reporter that people act as if ‘‘there’s something sacred about ballet, so that it can’t be legislated at all outside of the artistic view. It’s not untouchable by the rest of the standards for society.’’ Eva Patterson, an attorney for the Lawyers’ Committee for Civil Rights, gushed that Keefer’s case was ‘‘really groundbreaking. I’m sure many people will pooh-pooh it but it sounds important because it could force us to reexamine our attitudes toward body image and culture.’’
Unfortunately, in their intense zealousness to right the wrongs attributed to ballet’s slim-centric aesthetic, Keefer and Patterson overlooked one small but important detail: the First Amendment. Properly interpreted, the Constitution’s protection of free expression from government interference bars the City of San Francisco from legislating ballet standards. Larry Brinkin, a member of the San Francisco Human Rights Commission, recognized as much. He told the San Francisco Chronicle that the San Francisco Ballet school has a First Amendment right to choose to train only performers who meet the school’s subjective criteria.
As of this writing, however, the case against the Ballet is still pending. Fredrika’s dance career is going strong despite her rejection by the San Francisco Ballet; she won rave reviews for her lead role in a 2003 production of ‘‘Einstein’s Daughter.’’ Meanwhile, another claimant under San Francisco’s weight discrimination law, a five-foot-eight and 240-pound woman, forced Jazzercise, the nation’s leading aerobic exercise company, to drop its requirement that instructors have a fit appearance.
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The Keefer case is an extreme illustration of an emerging trend of activists and government agencies trying to use antidiscrimination law to make artistic expression more politically correct. For example, in March 1998 a group of women artists calling itself the Title IX Task Force filed a complaint with the National Endowment for the Arts against three of New York’s leading museums—the Museum of Modern Art, the Guggenheim Museum, and the Whitney Museum of American Art. The complaint alleged that these museums do not display enough paintings or sculptures created by women.
Title IX, an amendment to the 1964 Civil Rights Act, bans sex discrimination by institutions that receive federal funds, a definition that encompasses the three art museums named in the Task Force’s complaint. Title IX is famously credited with substantially increasing the funding universities give to women’s athletics. Activists for women’s athletics ‘‘so unequivocally succeeded in what they had set out to do, it inspired us,’’ Task Force member Mary Beth Edelson remarked.2
Edelson claims that the paucity of art by women exhibited in the big three art museums is devastating to women’s career prospects. ‘‘Collectors will go to the museums and see work and think, ‘This is the Good Housekeeping seal of approval’...and they go to a dealer and they buy that work,’’ Edelson explained, ‘‘If the museums don’t include women . . . then the dealers have a very difficult time selling [art by] women.’’ The museums’ spokespeople respond that major exhibitions focus on the work of artists established over many years; therefore, if works by male artists are presently overrepresented at exhibitions, this reflects biases that shaped the art world years ago, not any biases currently informing the museums’ choices.3 Regardless of who is correct, it hardly seems consistent with artistic freedom to have the government dictate whose work art museums should display.
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Antidiscrimination laws’ threat to artistic freedom goes well beyond arts organizations such as the San Francisco Ballet and New York’s leading art museums. Employers and university officials are increasingly facing the Hobson’s choice of either removing ‘‘offensive’’ art from the workplace or facing antidiscrimination lawsuits. The ban on certain kinds of art is explicit in some jurisdictions. For example, Madison, Wisconsin, has a law specifically defining illegal ‘‘sexual harassment’’ to include ‘‘repeated display of sexually graphic materials which is not necessary for business purposes.’’4 The Montana Human Rights Commission’s guide for employers similarly states that ‘‘prohibited sexual harassment includes: [d]is-plays of magazines, books, or pictures with a sexual connotation.’’5
At the end of the day, however, it is litigation or fear of litigation pursued under federal antidiscrimination law that lies at the root of most art censorship undertaken to satisfy antidiscrimination law. Title VII of the 1964 Civil Rights Act bans the creation of a ‘‘hostile workplace environment’’ for women as part of its judicially constructed prohibition on sexual harassment. For example, Penn State University took down a print of Goya’s Naked Maja that had been hanging in a classroom when Nancy Stumhofer, an English professor, complained about its depicting a naked woman. Professor Stumhofer explained, ‘‘Whether it was a Playboy centerfold or a Goya, what I am discussing is that it’s a nude picture of a woman which encourages males to make remarks about body parts.’’6
The Murfreesboro, Tennessee, city government removed from city hall an impressionistic painting by Maxine Henderson that depicts a nude woman with her breasts partially in view. The city was responding to a complaint by Laurie Crowder, an assistant school superintendent who did not work in city hall but passed the painting one day on the way to a meeting there. She threatened a hostile environment lawsuit, a move that led the city to take the painting off display.7 Crowder said, ‘‘I personally find art in any form whether it be a painting, a Greek statue or a picture out of Playboy which displays genitals, buttocks, and/or nipples of the human body, to be pornographic and, in this instance, very offensive and degrading to me as a woman.’’
After the city removed the painting, City Attorney Tom Reed remarked, ‘‘I feel more comfortable siding with protecting the rights under the Title VII sexual harassment statutes than I do under the First Amendment.’’8 Reed added, ‘‘You really can’t be too cautious. A sexual harassment judgment usually has six zeros behind it.’’9 Ironically, Reed’s caution did not save Murfreesboro from a lawsuit. Henderson, the artist, successfully sued the city for removing the painting in violation of Henderson’s First Amendment rights.10 However, in stark contrast to the huge sum that Reed had worried about losing in a sexual harassment suit, Henderson recovered only one dollar along with her costs.11
Arguably, public schools like Penn State, local governments like Murfreesboro, and other government entities should, out of respect to prudish employees and citizens, avoid displaying nude art in public spaces. Despite the dubious First Amendment ruling in favor of Ms. Henderson, the objectionable aspect of the incidents described earlier is not that the art was removed—Penn State and Murfreesboro had no obligation to display the art in the first place—but rather that its removal was undertaken in response to threats of legal action. Stumhofer and Henderson turned issues of taste into issues of alleged illegal sexual harassment—developments that will give inevitable pause to any employer, public or private, who wishes to display potentially controversial art in the workplace.
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Although many of the early sexual harassment complaints based on artistic displays involved feminist plaintiffs, individuals with conservative social views have also used sexual harassment law to promote censorship. For example, some Christian groups have argued that convenience stores should not be permitted to sell pornographic magazines, because the presence of such magazines creates a hostile environment for female and Christian employees.
For others, it is the combination of race and sex that proves especially provocative and objectionable. For example, University of South Florida freshman Nicole Ferry was offended by a photograph displayed in her art class. The photograph, titled ‘‘Nigger Lover,’’ showed a black man and a white woman locked in a simulated sexual embrace.12 It was the work of African American artist and class teaching assistant Derek Washington, who intended to use the arresting image to force viewers to examine their reactions to a depiction of interracial sex.
Washington, who also happened to be the black man in the photo, displayed the image in class as part of a lecture on controversial art. Although the explicit nature of Washington’s photo may have surprised or bothered some students, it should not have come as a complete shock. Instructor Diane Elmeer had earlier warned students that they might find some images shown during this lecture offensive, and told them they were free to skip the presentation entirely or to leave at any time without being penalized.
Ferry apparently was not so sensitive as to skip the presentation, but Washington’s photo made a strong negative impression on her. When she mentioned the photo to her father, he responded by sending an angry letter to the university, calling the photo ‘‘pornographic’’ and ‘‘smut.’’ The university was unresponsive to this complaint, which seemed little more than the prudish concerns of a conservative parent. In a later meeting with university officials, however, Mr. Ferry hit school officials where it hurt. He claimed ‘‘sexual harassment’’ had been perpetrated on his daughter—by ‘‘an African American male,’’ no less. The elder Ferry had clearly learned the proper buzzword (‘‘sexual harassment’’) to get university censorship gears in motion, and move the censors did. The university general counsel ordered Washington reassigned to another class, because it would ‘‘penalize a victim of an alleged sexual harassment’’ if Washington were to continue to have ‘‘a position of power’’ in the original class. Fine Arts Dean Ronald Jones told students that ‘‘no sexual harassment claim or allegation made in my office or within my hearing will go unacted upon. I cannot tolerate an environment when something like that happens.’’
Washington’s reassignment prompted a sit-in protest of the university president’s office by most of the other 250 students in the class. Sophomore Alexia Bridges expressed concern that Washington’s reassignment would cause other instructors to avoid controversial subjects. ‘‘Everybody is going to watch their step,’’ she said, ‘‘dot their I’s and cross their T’s.’’ Students contended that other art displayed in the class was far more sexually explicit than Washington’s piece, and that Ferry had singled out Washington’s photo because of its depiction of interracial sex. Elmeer reportedly told her class that the incident ‘‘reeks of racism.’’ Following the protest, the university withdrew Washington’s reassignment. All of this further upset Ferry, who alleged that she was being vilified for standing up to sexual harassment. Her father sent another letter to the university, this one accusing college officials of ‘‘evoking [sic] the protest,’’ and the younger Ferry filed a sexual harassment lawsuit against the school. The complaint lent support to those who thought Ferry’s agitation had a racial subtext when it gratuitously volunteered that she was white and Washington was black. The university caved again, settling with the Ferrys for $25,000.
Not surprisingly, Washington was upset by the university’s cravenness. ‘‘This came down to a business issue,’’ he said, ‘‘and I just don’t think money should supersede ethics.’’ An explicit university policy prohibiting instructors from displaying sexually explicit materials in their classes would probably be within a state university’s constitutional authority to set academic policy (see Chapter 5). No such policy, however, existed at the University of South Florida. Given that the controverted art was directly related to the subject matter of the class, Washington had every reason and right to assume that, in the absence of an explicit policy to the contrary, his academic freedom in displaying this art was protected. As the Ferry debacle shows, vague sexual harassment policies have unfortunately become a means for enforcing ad hoc artistic censorship policies.
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Inevitably, antidiscrimination laws threaten not only highbrow art, but lowbrow art and entertainment as well. The Supreme Court has declared that ‘‘the line between the transmission of ideas and mere entertainment is much too elusive for this Court to draw, if indeed such a line can be drawn at all.’’13 Therefore, the First Amendment has been held to protect all forms of entertainment from government regulation, even those shows, books, and pictures that have no discernable value to society beyond entertainment. This principle, however, is being increasingly undermined by the enforcement of antidiscrimination laws.
In response to a ‘‘hostile environment’’ complaint on the basis of the prevalence of nude pinups at a shipyard, a federal court banned the display of any ‘‘sexually suggestive, sexually demeaning, or pornographic’’ material there.14 Another court upheld a $125,000 sex discrimination award based in part on the plaintiff’s coworker’s playing ‘‘misogynistic rap music’’ and displaying music videos depicting an array of sexually provocative conduct.15 The Americans with Disabilities Act has been held to require a comedy club to put a deaf interpreter on stage, even during a performance by an illusionist who must have the audience’s full attention focused where he needs it to achieve his effects.16
Perhaps the most notorious case of antidiscrimination law impinging on lowbrow art involved actress Hunter Tylo. The producers of the steamy prime-time soap opera Melrose Place hired Tylo to play the show’s latest promiscuous bimbo, ‘‘Taylor McBride.’’ Predictably, given Melrose Place ’s emphasis on form (and especially female form) over substance, Tylo’s contract included a clause forbidding any ‘‘material change’’ in her appearance. When Tylo became pregnant before the new season started shooting, the producers fired her, explaining that they did not want their bed-hopping vixen character to be played by an obviously pregnant woman. To get an idea of where the producers were coming from, picture this: in one pivotal scene, Tylo, who gained 47 pounds during her pregnancy, was to be filmed cavorting pool-side in a thong bikini.
Tylo sued for employment discrimination based on sex and pregnancy. The producers of the show responded that Tylo’s prepreg-nancy appearance was a bona fide occupational qualification (BFOQ) reasonably necessary to the proper casting of the show. Therefore, they argued, Tylo’s claim failed under federal law.17 The producers also claimed a First Amendment right to cast the part as they saw fit. The judge declined to dismiss the case on BFOQ or First Amendment grounds, and the jury found in Tylo’s favor, awarding her $5 million. Tylo’s attorney, Gloria Allred, enthused that Tylo ‘‘is absolutely a living Susan B. Anthony and a Rosa Parks all rolled into one.’’18 After the verdict, the case was settled for an undisclosed sum.
But it’s not only Hollywood’s free, if sometimes raunchy, expression that is being compromised. Antidiscrimination laws even endanger something as quaint and apparently innocuous as the period theme of a restaurant, raising the question of whether ambience is an element of artistic freedom protected by the First Amendment. Cock of the Walk, a southern seafood chain, tried to provide an atmosphere in keeping with its 1800s riverboat theme. The waiters, dressed in period costume, were meant to represent the legendary fighters who brawled for the privilege of steering the riverboats, which netted them the best-of-the-best title: Cock of the Walk. Only males were hired as servers because, as Mike Fink Corporation, the owner of the chain, explained, women did not work on riverboat crews in the 1800s. It was a simple matter of historical accuracy.
Susan Mathis applied for a server job at one of the chain’s restaurants, arriving equipped with a hidden recorder that taped a restaurant manager turning her down for a server position because she was a woman. At Mathis’s behest, the Equal Employment Opportunity Commission sued Mike Fink for sex discrimination. The company responded that given the restaurants’ historical theme, being male was a BFOQ. A jury disagreed and found the restaurant liable for discrimination. Following the verdict, the company agreed to pay a $70,000 settlement. The company also agreed to hire women for server positions and to allow the EEOC to monitor its hiring practices for the next five years.19 Mathis’s successful lawsuit led one frustrated commentator to ask, ‘‘What’s the next logical target for discrimination cleanup?. . . How about a guy in the Dallas Cowboys cheerleaders? How about featuring a guy in the Sports Illustrated annual swimsuit issue?’’20
Mike Fink failed to raise a First Amendment defense in the case, so the court did not address the restaurant chain’s constitutional rights. However, one federal appellate court has held that the (late) Sambo’s restaurant chain had a First Amendment right to use its name, despite claims that the name created a hostile environment for African American patrons.21 A restaurant like Cock of the Walk may have a similar First Amendment right to create a particular historical ambience.
An opportunity for courts to decide whether a restaurant has the right to create a sexy ambience appealing to men was lost when the Hooters restaurant chain settled a sex discrimination complaint filed by the EEOC. The EEOC had sued Hooters, which relies on an image provided by voluptuous and tightly clothed waitresses, for refusing to hire male servers and for having a double-entendre name that suggested that only women could work there. Following a clever public relations campaign by Hooters, featuring a hairy, ugly ‘‘Hooters guy’’ —Hooters’ comical take on being forced to abandon its female-only server policy—the EEOC backed off, but not before extorting $3.75 million from Hooters, and requiring Hooters to create three new gender-neutral categories of employees.22
In separate litigation, two women who worked at a New Orleans Hooters franchise won verdicts of $20,000 each after having their hours cut when they became pregnant. In response, the national chain expressed regret, and noted that corporate policy prohibits pregnancy discrimination and requires all of its restaurants to offer special maternity Hooters outfits to its staff. Not all patrons are pleased with this compromise, which is dictated by laws banning discrimination against pregnant women. ‘‘Who wants to look at a belly button looking at you?’’ asked Ryan Petty, a 22-year-old U.S. Air Force flight crew chief from Dallas with a talent for telling it like he sees it, ‘‘Under the law, it’s discrimination, but I don’t want to see a pregnant Hooters girl, cottage-cheese legs and everything.’’23 A similarly blunt bachelor party participant added that if ‘‘the [Hooters] atmosphere was filled with 18 pregnant women in tights, we wouldn’t be there.’’
Regardless of how antidiscrimination law affects waiters at Cock of the Walk and Hooters, though, the grand American tradition of dinner theater, in which actors double as waiters during intermissions, is apparently not at risk from sex discrimination law. For purposes of determining whether sex discrimination by eating places is permissible, the EEOC draws a distinction between ‘‘whether you’re putting on a show or [just] serving food.’’24 If servers at a restaurant actually perform gender-specific roles in a theatrical performance,25 then sex discrimination in hiring is okay. Otherwise, the EEOC generally considers sex discrimination to be impermissible under federal antidiscrimination laws. The basis for this policy is the famous ‘‘Love Airlines’’ case from the late 1970s, in which Southwest Airlines asserted the right to hire only sexy young women as flight attendants in order to cultivate an image that would appeal to male business travelers. A federal court ruled that because the essence of the airline’s business was transporting passengers, not sexual allurement, the airline’s employment policy was illegal sex discrimination.26 The implication, however, was that discrimination by a business that really was centered around sexual allurement would be licit. Ironically, then, Hooters’ problem may be that its form of sexual entertainment is too subtle and tame. As an anonymous EEOC official noted, ‘‘Hooters claimed that . . . they [sic] were providing vicarious sexual recreation . . . but all along they were primarily a food business.’’27 A bemused commentator concluded that ‘‘[i]f Hooters had wanted to avoid a civil rights lawsuit, and save $3.75 million, it should have dimmed the lights, bared the waitresses, and cut the menu down to nuts and nachos.’’28
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After generations in which controversial art, especially art considered sexually indecent, was ‘‘banned in Boston’’ and across the United States, American artists have finally won First Amendment protection for their work over the past several decades. The result has been a flourishing and diverse arts and entertainment scene unrivaled in the rest of the world. However, the growth of antidiscrimination law threatens this achievement. Feminists like Krissy Keefer and the Title IX Task Force, prudes like Laurie Crowder, prima donnas like Hunter Tylo, reactionaries like the Ferry family, and government bureaucrats like the EEOC officials who went after Hooters are all eager to use the force of antidiscrimination law to compel the arts and entertainment world to conform to their vision of a good society. Only the First Amendment’s protection of artistic freedom stands between such individuals and a return to widespread artistic censorship under the guise of combating discrimination.