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.