Monday, November 13, 2017

Should Media Companies Remove Old Content Featuring or Made by Sex Offenders and Other Wrongdoers?

by Michael Dorf

In light of the revelations and accusations that Kevin Spacey sexually harassed and/or assaulted various men and boys over the years, Netflix has suspended production of the upcoming season of House of Cards, in which Spacey has hitherto starred. Reportedly, the show's writers are attempting to write Spacey's character, Francis Underwood, out of the show. In the meantime, Netflix subscribers can still watch the existing five seasons.

That is more than can be said for fans of comedian Louis CK, who admitted late last week that he had pressured women to view him naked. Women have alleged that CK masturbated in front of them; CK's apology admits that he "showed them" his penis but does not specifically mention masturbating. In any event, the incompleteness of CK's apology does not seem to be at issue, because HBO acted before CK published it. Within a day of the initial revelations, HBO canceled upcoming projects with CK and also pulled CK's existing shows from its streaming services. Although I have not seen a similar announcement from the FX Network, which produced CK's popular series Louie, FX seems to have followed suit. On Sunday night, my search for "Louie" on the FX website produced no results.

What should one make of the decision of Netflix to leave older Spacey content accessible versus the decision of HBO and, apparently, FX, to remove older CK content? Obviously, this is not a constitutional question, as the respective networks are private actors to which the First Amendment does not apply. It might be a contractual question, depending on the terms of the networks' contracts with Spacey, CK, and the very large number of other people and firms involved in the various shows. Many contracts have catch-all "morals clauses," but they vary. For example, until recently, Bill O'Reilly's contract with FoxNews forbade the latter from firing him over sexual harassment allegations unless they were proven in court. Networks confronting alleged and/or admitted sexual misconduct by actors, directors, producers, and others responsible for the content they provide will have to untangle their various contractual obligations.

In the end, each network will make a business decision based on its assessment of the costs (boycotts, etc) and benefits (loyal fans, new viewers attracted by the controversy) of each case. Those are difficult to tally up in the abstract. Accordingly, network executives at Netflix, HBO, Amazon, and the many other companies that now deliver content to a world of media-hungry viewers might want to consider a normative question: What is the right course of action?

We can begin to answer that question by setting aside a potential distraction. A studio or distributor might have objections to the substantive content of some material. Decisions not to distribute offensive content have free speech (though not necessarily constitutional) implications, as I explored with respect to neo-Nazis and their ilk here), but such decisions call for a different kind of analysis.

The question now under consideration is whether to continue to make available content that is not in itself objectionable (under whatever standards a firm uses for determining whether content is objectionable), but features work by actors, directors, or others who, the distributors and public now realize, have engaged in objectionable conduct. Although the objectionable conduct now generating public attention takes the form of sexual harassment, sexual coercion, and related bad behavior, there is no reason in principle to limit the inquiry to sexual misconduct.

Consider Michael Richards. In 2006, Richards used the n-word as an epithet directed at a member of the audience during a stand-up routine. Richards was widely condemned, and he apologized, but his career--understandably--never quite recovered. And yet, syndicated reruns of Seinfeld, featuring Richards as Cosmo Kramer, continue to appear in the US and beyond. Why weren't they pulled? Should they have been?

One difference between Louie and Seinfeld is that Louis CK is the eponymous star of Louie, whereas Richards was at best one-fourth of an ensemble cast named for a different cast member. That fact also partly explains why there does not appear to be any systematic effort underway to purge streaming services of content produced by the now Harvey-Weinstein-less Weinstein Company. Viewers associate The Imitation Game with actor Benedict Cumberbatch and subject Alan Turing, not with Harvey Weinstein.

But even when the wrongdoer is extremely closely associated with a show, a network might choose to leave past episodes available. Although House of Cards was not titled Kevin Spacey's House of Cards, at least prior to seasons four and five, when Robin Wright's character of Claire Underwood was effectively elevated to co-star status, it might as well have been. In other words, the first three seasons of House of Cards are as closely associated with Spacey as Louie is with CK.

So who made the right call, Netflix or HBO? Part of the answer might depend on who profits. Hollywood contracts are notoriously complex with regard to the calculation of royalties, but it is fair to assume that if a now-odious individual is sufficiently closely tied to content to lead a network to consider shutting down that content, that individual very likely earns a share of royalties from new viewings of the content.

If we were talking about government censorship, that fact would be neither here nor there. Under the 1992 SCOTUS decision in Simon & Schuster v. Members of NY State Crime Victims Board, the government cannot require that profits from the sale of a book depicting real crimes be set aside for crime victims, even though authors of books who happen to be criminals can, of course, be required to compensate their victims in the same way that other sorts of criminals can.

Again, that First Amendment rule doesn't limit private actors. However, large media companies like Amazon, HBO, Netflix, and others play a substantial role in shaping the environment in which free speech occurs. Their lawyers certainly are quick to invoke the First Amendment to protect their commercial interests. Accordingly, in the same way that some private universities voluntarily undertake to be bound by the same free-speech norms that bind public ones, large media companies might choose to be bound by First Amendment norms. Thus, the fact that someone now recognized to be a creep (or worse) profits from the continued availability of his content on the streaming platform should not be sufficient reason to remove that content if a firm voluntarily embraces First Amendment values.

Meanwhile, the question whether to remove content created by creeps raises an old question about the relationship between art and its creators. Can one enjoy Wagner's Ring cycle without feeling implicated in his antisemitism? Many films produced more than (or sometimes less than) ten years ago are blatantly homophobic. Long after society came to understand domestic violence as a very serious issue, The Honeymooners could be seen in syndication (and is still easily available on DVD), despite the fact that the signature tag line of Jackie Gleason's Ralph Kramden is a threat to punch his wife, played by Audrey Meadows, so hard that the momentum carries her to the moon.

It would be perfectly reasonable for someone to refuse to watch art from another era (even a very recent one, given how fast norms can change) based on the offensiveness of the material. It would also be reasonable to boycott the work of a talented filmmaker, actor, or other artist based on the immorality of that person's actions, even if not reflected in the art. Yet it does not follow that network executives should decide that no one should be able to reach a contrary judgment and overlook the artist's even very serious misdeeds in order to appreciate the art.

Put differently, were it up to me, I'd make the same call as Netflix, not HBO. I would not want to promote the work of the now-disgraced artist; but neither would I remove it from circulation.

Admittedly, that judgment is vulnerable to two criticisms. I'll raise each and then give a response.

First, one might say that if something like a right of audience members to decide what to watch justifies keeping up old Weinstein/Spacey/CK content, it also justifies making and distributing new content by such artists. I disagree, because the creation of new content risks doing new harm, while failing to remove old content does not (generally) work new harm. The women and men who were harassed or worse by Weinstein/Spacey/CK to make their existing works have suffered harm already.

True, one could say that every time someone watches material by these artists, a new injury occurs, but I find that far-fetched, given the nature of the (admittedly very serious) harm, which is not part of the content of the material. There may be exceptions. For example, an episode in Season 4 of Louie seems to downplay the seriousness of attempted rape, and there is a scene in One Mississippi, for which CK gets an executive producer credit, in which a man masturbates in front of a woman. But in general, where the harm occurs off camera, new airings of old shows don't cause new harm. By contrast, a company that works with a now-known abuser to make new material risks complicity in new abuse.

Second, my distinction between content that is offensive in itself and material that is problematic only because of what we now know about one or more of the people who produced it may seem at odds with my analysis of the controversy over Confederate monuments. There I took seriously the calls for removing not just statues of Confederates but even the likes of George Washington and Thomas Jefferson. I acknowledged that there is a much stronger case for retaining the latter on the ground that their statues honor them despite their slave-owning ways, not because of them. But I went on to suggest that, if an evil is great enough, it taints even people who accomplished other great things and who are not being honored for the evil. Could it not be said that the evils of sexual harassment and assault are likewise great enough to taint the work of the likes of Spacey and Louis CK even where the work does not reference their misdeeds?

Indeed it could, but I think there is another crucial difference. A statue of Robert E. Lee in a public park honors Lee. The argument for removal of Confederate monuments (and the weaker argument for removing monuments to slaveowning Founders who are celebrated in recognition of their other accomplishments) is not that no one should be permitted to see them. It is that if someone wants to view these monuments, it should be in a context that does not connote community approval. Having reruns of a tv show available on Netflix is, to state the obvious, not an honor that connotes any kind of community approval. One can think that the conduct at issue by Spacey, CK, and others is despicable without concluding that their past work should therefore be made difficult to access, because the ability to access content says nothing about the quality of that content or the esteem in which the community holds its creators.


John Barron said...

I would say no. Banning is a blunt instrument, which hurts the other artists who have contributed to the works in question, and society as a whole.

Let us say, arguendo, that it came out that George Takei--and I strenuously doubt that he would ever do this!--were caught in a Spacey scandal. For those who don't remember, he was little more than a bit player in Star Trek. Would that justify putting that cultural icon into mothballs? Or say that it was Shatner. Would your analysis change, and if so, why? And imagine if it had been Daniel Radcliffe!

How do you tell your kids that they can't watch Harry Potter any more?

One of the problems with acting is that occasionally, an artist can be a victim of his or her own success. Mark Hamill got type-cast as Luke Skywalker, and had a hard time getting gigs. If Harrison Ford went full Mel Gibson on us in a drunken fit, Hamill might have lost a major slice of his income. Not having watched House of Cards or Game of Thrones (I'm not much of a TV guy), I'm in no position to assess the harm to society as a whole, but it's easy to see how it hurts the offender's co-workers.

The thought that someone could lose their career over an N-bomb--Chris Rock's stock in trade--means that we have taken political correctness to an absurd level. And the mere thought of tearing down the Jefferson Memorial--in his draft of the DoI, he denounced slavery as a crime against nature, 40 years before Wilberforce--leaves you breathless. The pernicious idea that we have a right not to be offended will leave society poorer, if it is permitted to take root.

Shag from Brookline said...

This post raises complex questions, including what some might consider "content (book) burnings" on the Internet. But the very first paragraph of Mike's post includes this:

" ... Netflix has suspended production of the upcoming season of House of Cards, in which Spacey has hitherto starred. Reportedly, the show's writers are attempting to write Spacey's character, Francis Underwood, out of the show."

Can we expect a fast shuffle or stacking the deck on how Spacey's character is dealt out, perhaps for purposes of ratings? Might there be revelations about Underwood's secret misconduct surfacing that results in his assassination by a 2nd A absolutist who carries the insurrectionist view of the 2nd A? Neil's 11/6/17 post and its thread focused on this insurrectionist view. Or might Underwood die in his sleep, alone? Which might be better for Spacey's alleged victims? To the viewing public? Truth may be stranger than fiction, but fiction can be convincing to many. But it's all show business and efforts to make lemonade may sell.

Joe said...
This comment has been removed by the author.
Joe said...

Netflix is something people in each case can access as compared to programming on regular television. To take a case study, for some time "The Cosby Show" was taken off the syndication schedule on many channels. I have noticed in one or two African American leaning stations it appears to be back on.

Ongoing airing of such old content on syndication stations would be somewhat in the middle of new product and removal of all old product. I think it would make sense, at least for the time being, for those actively caught in the web here so to speak to be taken off syndication. For instance, stations probably took off "7th Heaven," when it came out the lead actor (who plays the reverend) admitted to child molestation charges of some sort. On the other hand, for material you have to access in Netflix like platforms, the line should be for new content. There is a mass of material on Netflix, including old content with bad actors involved. Not sure the line to draw there if we selectively remove this people.

The bottom line there tbh is what the customers demand, even if we desire it to be in resisting harm. But, the essay here can be used to have customers explain why they don't want the material there. I should note not just customers but some people in the business are strongly vocal about stopping abuse here. So, they too would be the people who express why they don't want new content for the reasons given.

John Barron said...

Shag, while I don't claim to have an M.D., having dealt with my share of octogenarian judges, I have seen this rodeo before. In the depths of their dotage, they reliably eschew the rational and embrace the emotional. I also saw my octogenarian father when the COPD reduced his oxygen flow (you have said you are on oxygen). Been there, done that.

As you will note, despite your Trumpian fusillade of false and scurrilous allegations against me, I politely withheld that assessment, hoping that a rational discussion of originalism would break out. But as it became clear that that hope became a vain one, and all that could be expected of you was a crazy train of emotional outbursts which denounce history, the concept of internal controls, and time-honored rules of statutory construction, there wasn't much left to salvage.

I don't watch much TV. Never even seen Game of Thrones. That doesn't mean that I'm afraid of it. Never saw much point in going to strip clubs, either. Doesn't make me afraid of nekkid ladies. Guns are in my "why bother?" zone, too. But some senile old coot calls me a "coward" for that lack of interest? Res ipsa loquitur.

Besides, with two bad knees, I doubt that I could handle the AR-15's recoil.

I get it. You hates guns, My Precious! You hates them FOREVER! Gollum! As for me, I'm profoundly ambivalent, but acknowledge that the right of self-defense as articulated in Blackstone (collectively, the right to revolution memorialized in the NH Constitution) was the legal and moral justification for the American Revolution, and that the legal structure of our Nation recognized it as an indefeasible and unenumerated right. And that makes me a "gun-nut"?

Senility impairs your ability to reason.

I actually do want to debate originalism with articulate opponents. But perhaps I am expecting too much....

Asher Steinberg said...

I think this is all wrong. In the first place, the presence of an old statue in a park doesn't connote community approval; it only connotes approval of the community at the time the statue was put up. No (rational) person thought the Taney statue in downtown Baltimore connoted present-day community approval of the author of Dred Scott. All a statue connotes about present-day attitudes is that the person honored isn't thought so loathsome that it's necessary to take his statue down.

On the other hand, a streaming service's choice to continue offering someone's content makes a statement about what that service thinks about him in the present day. It may not connote community approval, but it connotes their approval. I see no reason why Netflix should have to connote its approval of C.K. so people can continue to have access to his masturbatory fantasies (none of which were ever that funny anyway or can be meaningfully separated from what a crappy person he is). People will still be able to purchase DVDs of his show from some place or another.

As to the old/new distinction, I don't really see what you're talking about. How would Netflix be complicit in new abuse if it streamed new episodes of "Louie," any more so than it's complicit in new abuse by streaming old ones? Streaming either makes C.K. wealthier, more famous, more powerful, and less of an outcast. I don't see what making new shows has to do with complicity in new abuse; it's not as if C.K. is a pornographer who abuses performers in the very making of his work. However, streaming his old material does help make his behavior seem more acceptable, both because that's just what continuing to give him a platform does, and because his old material is largely about that sort of behavior.

Shag from Brookline said...

John, even someone with two bad knees can establish his own blog to debate originalism. Whether the alleged non-Trump John Barron might, with his own blog, attract "articulate opponents" might indeed be "expecting too much ... " by one who dwells on the articulateness of those from the past prior to the American Revolution that may be a tad out of context with political events post-Revolution.

And no, I am not on oxygen via a mechanism, not that there would be anything wrong with it, if needed, such as in the Mile High State (of mind) in which John might dwell. Any references of mine about stepping on my air hose were intended to be humorous. Boston's George Frazier when hospitalized had a list of Boston Globe journalists not permitted to visit him. The list included one who was seeking to replace Frazier, let's refer to him/her as MB. Frazier was concerned that on a visit MB might be tempted to step on his air hose. Those interested might check out "Another man's poison: The life and writings of columnist George Frazier" by Charles Fountain, available in paperback.

So, John, I expect you'll continue trolling at this Blog looking for a debate on originalism even when the post is not on that subject. But, John, you could start your own blog since The Originalism Blog nor Larry Solum's Legal Theory Blog allow for open comments. Your own blog might be titled "BARRON [sic] ORIGINALISM."

John, your initial comment was responsive to Mike's post. But your second comment is a continuation of your trolling. I don't think anyone will take de-bait.

Joe said...

Asher isn't sure what Dorf is talking about. Since Dorf is allegedly all wrong, I'll touch upon one matter.

"I disagree, because the creation of new content risks doing new harm, while failing to remove old content does not (generally) work new harm."

So, it is noted that there still is harm even with old works ("generally" is not absolute) while new content is an ongoing creation of new works, even after the companies now are on notice. But, Asher isn't sure how even that occurs.

[I think there is a strong case to not showing even old works to some extent but when you in effect have great warehouses of works, the Netflix scenario, as compared to syndication alone, I'm not sure of the stopping point there.

But, I'm open to the idea w/o seeing it as bad. And, it is but mildly advancing harm since there are various ways to get old content. Syndication is continuously aired and even might be on free channels. The 'prestige' factor cited is duly noted. But, people via Netflix have to reach out to get it, among lots of content. They need not just flip thru channels or see it listed in the tv guide.]

Asher: "it's not as if C.K. is a pornographer who abuses performers in the very making of his work"

I'm not sure how true this is. Repeatedly, cases were flagged where the wrongdoers did target people "in the very making" of their product. His mistreatment of female comedians very well might have been in some fashion in various cases while he was creating product, including in hotels during stand-up tours.

John Barron said...

Holy shit! TAKEI?!?

John Barron said...

I don't understand your special kind of stupid, Shag, but I respect your total commitment to it.

Not much point in our continuing to engage.

David SLS '96 said...

"What should one make of the decision of Netflix to leave older Spacey content accessible versus the decision of HBO and, apparently, FX, to remove older CK content?"

I would view this as a pragmatic matter. The issue is more or less the same as that faced by series producers/distributors when a key cast member drops out (or asks too much, etc.) - can the series survive a replacement or "writing out"? Or not?

Other than that, I see these actions - which include literally reshooting Spacey's scenes on an upcoming film which already features him in its trailers - as, mostly if not entirely, likely viewed as damage control. This may be less a matter of concern about losing subscribers/ticket sales as a desire to avoid stigma in the competitive creative community. Though, one might well think that affirmative actions with respect to diversity hiring and promotion would be more to the point when stars, directors, producers and others - including executives, for that matter - choose their creative bedfellows (figuratively speaking...).

There is also the matter of the content itself, and how it does or does not perpetuate stereotypes, who drives the story-lines, etc.

Sarahmelanie said...

Where is GOD in all of this? HE believes in forgivness, so why would we want to delete or erase all content these men are in because it hurts corporate profit? THATS why HBO is deleting everything, $$$, not because of anything else

Shag from Brookline said...

John, I do understand your special kind of stupid but have absolutely no respect for your total commitment to it.

Unknown said...

John, Shag, fascinating thread. It's unfortunate that you had to start attacking John personally. That never ends well.

The historical argument for originalism seems overwhelming.

Joe said...

Steve Holland might not known the extended back/forth between John and Shag. It is "unfortunate," but it adds context to the whole thing. The historical argument isn't overwhelming, but the thread is not about that, so I'll leave that to others.

George Takei, whose reputation unlike Kevin Spacey's leads one to believe him, denies the allegation. There is going to be many allegations. We can look at the whole picture here, including the number of allegations and again long time knowledge which has been coming out of the woodwork in many of these cases.

Shag from Brookline said...

Steve, I note your underwhelming comment which fails to disclose the "historical argument for originalism .... " Or did you mean "hysterical"? And, Steve, is there a tad of a threat with your: "That never ends well."?

But Steve, do you have a comment on Mike's post or are you serving as John's caretaker in his rehab?

Joseph said...


I don't see the streaming of entertainment to be a statement of approval, except sometimes maybe of the content itself. I've always understood television as a venture to make money and to cater to demand. Airing or not airing the shows is first and foremost a business decision.

As to complicity, I think Prof. Dorf is alluding to the idea that if a network continues to work with someone they know has abused coworkers in the past, they might be facilitating such abuse by continuing to work with him. I would be a little surprised if Prof. Dorf had a more capacious notion of complicity in mind.

I think it generally problematic to purge ourselves of art (or whatnot) because someone involved, who did something bad, had a hand in it. If a streaming service doesn't want to carry a show, fine. If you don't want to watch it, fine. Our ability to enjoy a painting, a book, a show shouldn't need to hinge on the moral rightness of those involved in its creation. There are going to be exceptions, of course, but I think the ethics should continue to be an individual matter, and otherwise purely a business decision.

John Barron said...

Shag: "is there a tad of a threat"

You ARE one paranoid fuck! Dolt45 and Rocket Man made it personal, and their trading insults significantly raises the probability of nuclear war.

Remember Muhammad Ali? He refused to be conscripted as a mercenary. Was he a coward for so doing, Shag? Don't think so. That was the kind of Trumpian nonsense that has peppered your rejoinders--your intellectually dishonest attempt to gain the upper hand through intimidation.

Shag: ""historical argument for originalism .... " Or did you mean "hysterical"?"

If originalism is so baseless, why do we have so many self-professing originalists on SCOTUS? Whenever they testi-LIE under oath, every judicial candidate professes an undying fealty to COTUS as written. Justice Kagan: "Well, Senator Schumer, I think that if the text of a statute is clear, it would be wrong for a court to say well, the text says X but I don’t think X makes sense, so I’ll choose Y." Justice Sotomayor asserts that the “intent of the founders was set forth in the Constitution. They created the words; they created the document. It is their words that is the most important aspect of judging.” Justice Thomas claimed that his job as a judge is “to interpret [lawmakers’] intent, not to second-guess” it. CJ Roberts adds that “the Framers were willing to have the judges decide cases that required them to interpret the Constitution, because they were going to decide it according to the rule of law.”

The only dissenting voice is that of Judge Posner.

Just out of curiosity, Shag, did you ever appear before Judge Keeton (of Prosser and Keeton fame)? He wrote: "The law abhors power without accountability. Unpoliced power invites abuse and corruption." IRS v. Blais, 612 F. Supp. 700, 704 (D. Mass. 1985).

How do you LC types propose to cabin in judicial abuses of power? To me, this may be the most compelling practical argument for originalism. One way is for the judiciary to be answerable to Parliament, which can rectify any case of judicial overreach (the problem is that it impairs judicial independence). The other is to bind the judiciary through a written constitution that is not amenable to excessive judicial interpretation.

India's constitution "is a living document, an instrument which makes the government system work." And in a recent decision, the Court cited the Bhagavad Gita--a cultural marker, explaining why their society embraces a living constitution:

"The meaning of this profound statement, when viewed after a thousand generations is this: That each age and each generation brings with it the challenges and tribulations of the times. But that Supreme spirit of Justice manifests itself in different eras, in different continents and in different social situations, as different values to ensure that there always exists the protection and preservation of certain eternally cherished rights and ideals. It is a reflection of this divine Brooding spirit of the law, the collective conscience, the intelligence of a future day that has found mention in the ideals enshrined in inter-alia, Article 14 and 21, which together serve as the heart stones of the Constitution."

If a country wants a "living constitution," it can have one. And India wants one. What we do with our 9th and Zimbabwe does with its analogue, India can't do literally ... but under a LC, it can. As in Britain, Parliament is the supreme authority, and they can control judicial abuses. This appears to be part of the design, which is just something you have to accept.

Shag: "But Steve, do you have a comment on Mike's post"

Where else would you propose that readers weigh in on our discussion?

Unlike a Mike Rappaport (who was apoplectic about the Indian court decision!), I am not philosophically opposed to a constitution being an organic instrument. Problem is, ours is not designed to be one, and the LC cure appears far worse than the disease.

John Barron said...

Seems to me that everyone sees the same core problem here: When you start tearing down monuments or removing works of art from the culture, it is a slippery slope for which there is no limiting principle. The proposition that we would tear down the Washington Monument or suddenly relegate Star Trek to the dustbin smacks of absurdity.

Roy Moore and Kevin Spacey aren't particularly employable at this point. But asking our purveyors of entertainment to do Winston Smith impressions creates a different array of dangers.

Shag from Brookline said...

John Barron at 1:49 PM )yesterday) having commented:

"Not much point in our continuing to engage."

has returned, Zombie like, with the aid of his caretaker in rehab, with his Herman Munster impression of originalism, wishing to reengage. But in the words of "Plutarch," "John, go engageth thyself."

John Barron said...

Comments aimed mostly at third-parties who happen by.