Protecting Political Art in the Age of Trump

By Kaiya Lyons

For nearly three weeks, the Public Theater’s Shakespeare in the Park production of Julius Caesar, featuring a conspicuously Trump-like figure in its title role, was performed without notice or incident. It’s not all that surprising that the theater chose history’s most recent political agitator as its lead. In the year since the 2016 election, theaters across the country taken this rather inevitable artistic choice of placing the 400-year-old play in the modern political age to illustrate the dangers of blind populism. If truth be told, reimagining the Roman emperor as the demagogue du jour seems to be a relatively cliche take on Shakespeare’s tragedy, which dates back at least to Orson Welles’s 1937 anti-fascism adaptation that depicted Caesar as equal parts Hitler and Mussolini.

Even so, it didn’t take long before the conservative media took issue with the Central Park production’s critical death scene. As one conservative-leaning media group employee put it, “I don’t love President Trump, but he’s the president. You can’t assassinate him on a stage.” Even though the Shakespearean tragedy is distinctly anti-regicide in its tone and message, alt-right pundits were appalled and offended by the scene, soon writing headlines that claimed the Public’s production not only depicted, but also encouraged the assassination of President Trump.

Such headlines even caught the attention of those close to the White House, including one of the president’s sons, who outright questioned the legality of the Public’s actions in a Tweet:

I wonder how much of this “art” is funded by taxpayers? Serious question, when does “art” become political speech & does that change things?

— Donald Trump Jr. (@DonaldJTrumpJr)

Unlike his brother-in-law, Donald Trump, Jr.  did not attend law school. So perhaps his basic misunderstanding of the First Amendment is a symptom of his lack of a legal education. But considering the First Amendment threatsalready perpetrated by his father, it’s important that we reiterate (for Trump Jr. and anyone else who may be confused) just what “free speech” really means in this context.

So, when does art become political speech? And does that change things?

To answer this two-pronged question, let’s look first to the text of the First Amendment, which reads that “Congress shall make no law … abridging the freedom of speech.” When citizens use this freedom to speak truth to power, it’s “more than self-expression; it is the essence of self-government.” As Justice Brandeis wrote in 1927, the “freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”

In this way, political speech, as in the freedom of the public to express opinions regarding their government, is a fundamentally democratic principle. That’s why—contrary to what the president’s son seems to suggest—such speech is afforded the highest level of First Amendment protection. Indeed, the Supreme Court has held that, specifically because our form of government is predicated on “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen,” if Congress wants to curb political speech, it must have a compelling government interest to do so. And not surprisingly, a good reason is hard to come by.

Therefore, thanks to the First Amendment, federal, state, and local governments cannot jail, fine, or impose civil liability on people or organizations based on the content of their spoken or written words or expressive conduct. This includes placing a “prior restraint” on certain messages by requiring licenses or imposing temporary restraining orders or injunctions against certain speakers. However, the government may impose reasonable, content-neutral restrictions on the time, place, or manner such speech is expressed.

With this in mind, let’s address Trump Jr.’s quandary directly: When does art become political speech?

It bears repeating that live theatrical performances such as the Public’s Julius Caesar, are protected under the First Amendment. This would be true whether or not the production had political undertones. But the fact that the theater’s Artistic Director Oskar Eustis chose to direct the classic tragedy the day after the 2016 election suggests that the production crossed the line from pure artistic expression to political speech. Moreover, as the Public has explicitly explained, their production aimed to show that “those who attempt to defend democracy by undemocratic means pay a terrible price and destroy the very thing we are fighting to save.”

Therefore, one can make the argument that the Public’s Julius Caesar is the definition of the type of political speech the First Amendment was created to protect. As Justice Black stated in 1966, “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.”

This is why the Supreme Court has repeatedly upheld the right of citizens to desecrate, and even burn, the American flag in our modern age. In 1969, the Court made clear that the “public expression of ideas may not be prohibited merely because the ideas themselves are offensive to some of their hearers.” Thus, the Constitution emphatically protects even “defiant or contemptuous” opinions about such an iconically American symbol as the star-spangled banner.

Still, in a small number of circumstances, the very content of certain speech, regardless of its political nature, may justify the type of government interference Trump Jr. seems to imply. The Supreme Court has recognized several categories of speech that the government may limit because they are of historically “low value,” including defamation, fighting words, obscenity, fraud, incitement, child pornography, and commercial speech such as false advertising.

Trump’s supporters may argue that the gory assassination of the president on stage falls into several of these exceptions to the First Amendment prohibition against content-based censorship: defamation and incitement. However, under Supreme Court precedent, neither of these exceptions would warrant government interference with the Public’s production or similar uses of Trump’s imagery. First, while the unflattering depiction of Trump may harm his reputation, because he is a public figure (indeed, arguably the most public figure in America), the defamation exception does not apply to him. Second, some conservative pundits have argued that portraying the assassination of a president on stage encourages audience members to attempt to take the life of that president. But the pivotal stabbing scene doesn’t incite imminent lawless action on behalf of a specific person or group. Nor is it likely that the mere act of watching an artistic representation of an assassination will directly provoke someone to stab the actual president.

But these established legal realities did not prevent many detractors to call for the defunding of the Public by the National Endowment for the Arts (NEA), prompting the independent agency to issue a pop-up disclaimer on its website clarifying that “No taxpayer dollars support Shakespeare in the Park’s production of Julius Caesar.” But just as the government cannot arrest Oskar Eustis for creating politically-charged art, the government is also restricted by the First Amendment in the way it subsidizes such art. Which begs the question, “Et tu, NEA?”

Although the government isn’t required to finance the arts, once it decides to support a given project or organization with public funds, it cannot withdrawthat funding because it disapproves of the viewpoint it expresses. That would amount to government censorship. Therefore, if the NEA had provided a grant to the Public for this year’s Shakespeare in the Park festival, it would be unconstitutional for the agency to pull its support because the President or his son disagreed with its message.

However, the First Amendment only protects speakers from government interference, leaving private individuals and corporations free to use their money demonstrate their support for—or opposition to—certain viewpoints. Which is exactly what Delta and Bank of America did by publicly withdrawing their financial support from the Public’s production, in response to the critical uproar surrounding the play.

Although it’s entirely legal, the corporations’ readiness to pull out their funding evokes an ominous vision of the theatre community’s future. Especially considering the Trump administration’s proposed elimination of the NEA, corporate sponsorship of the arts in the Trump era is likely to be paramount to sustaining our country’s strong commitment to artistic freedom and, ultimately, free speech. Without active public funds going to the arts, it will fall upon corporations and individuals to prevent the chilling of artistic expression and political speech, which is “indispensable to the discovery and spread of political truth” and essential to thwart tyranny and corruption.

The Public Theater’s production of Julius Caesar is not the first time we have seen artists use Trump’s image to provoke civic engagement, discourse, and self-reflection, and it will not be the last. But artists can rest assured that the First Amendment lies squarely on the side of free expression. As long as we unite to support our community as artists, audience members, and sponsors, the theatre will remain a vibrant and vocal component of our functioning democracy.

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