Guest Blogger, Dan Ellison–TLP, Censorship and the Law Part II

And now, the part two of Dan’s post about The Laramie Project and censorship.

Isn’t it amazing and wonderful that a play (or any work of art, for that matter) can create controversy and public debate.  It is proof that art is powerful!  Words matter.  Art matters.  Theater matters!  The Laramie Project is a powerful play.   In numerous examples around the country, high schools have stopped or prohibited productions of the show.  What is equally as distressing (or maybe even more distressing) are all the schools where the drama teacher is too fearful, too afraid of the potential for controversy that he or she never even tries to produce the play.  (In legal parlance, we call that the “chilling effect.”)  The school principals and the school boards are not always the ones trying to censor; sometimes it is the parents making the protests.

Here are a few recent examples of Laramie Project controversies:

Judge allows Rent and Laramie Project to be performed in Nevada high school (2009).

The Laramie Project is Coming to Tyler, TX (2010)

Teacher Fired in OK over teaching Laramie Project (2009)

In the spirit of free speech and debate on issues, here is a website that takes the opposite view on whether The Laramie Project should be taught in schools.

How can schools censor a school play?  As a starting point, remember that a private school (i.e. a non-governmental agency) has pretty much free reign over censoring school activities.  A public school, however is subject to the First Amendment.  A school is not typically considered a “public forum.”  (A public forum is a place that is either specifically designated as a forum for expressive purposes or a location that has traditionally been such a public forum.  Think, for example, of a town square that has traditionally been the place where political speeches occur and protests happen.)   Government restrictions of speech in a public forum are subject to strict scrutiny–the highest level of judicial review.   As a non-public forum, the government restrictions need only meet a reasonableness standard–the restrictions must be reasonable and viewpoint neutral.

From a constitutional perspective, the speech in question in most of the school censorship scenarios, is not the play itself, it it the teacher’s expressive speech, embodied in his or her choice of play.  That act of choosing a play is the constitutional speech at issue.  The selection of a play is not, according to the courts, a matter of public concern, it is a part of the curriculum decision-making process.   The Fifth Circuit Court of Appeals, in a 1989 decision stated that “public school teachers are not free, under the first amendment, to arrogate control of curricula.”  That statement was cited in a North Carolina case – the 1998 Fourth Circuit Court of Appeals decision, Boring v. Buncombe County Board of Education, 136 F.3d 365 (1998).  Boring concerned a Buncombe County, NC high school teacher that chose the play, Independence by Lee Blessing, for four of her advanced students to perform in an annual statewide competition.  Margaret Boring was ultimately transferred in retaliation for the play’s production.  The court found that the retaliation did not violate her Constitutional rights. [You can read the entire decision here.]

INSERT FROM JULES — Boring’s dismissal happened in Charlotte, NC in the wake of local controversy about Charlotte Repertory Theatre’s decision to stage Kushner’s Angels in America and the subsequent county defunding of all arts (and the disintegration, in the wake of those cuts, of the Charlotte Rep) particularly any/all artwork deemed to have controversial (i.e. mentions of homosexuality) content. In 2007, Eric Coble was commissioned by Actor’s Theater of Charlotte (which was built out of the ruins of Charlotte Rep.) to write a play, Southern Rapture, about how the culture wars were fought in Charlotte in 1996.

Of course, it isn’t only plays with gay themes that get censored.  In just the past year, a Connecticut school superintendent sought to stop a production of August Wilson’s Joe Turner’s Come and Gone because it used the word “nigger.” [Query, should I have self-censored and referred to “the n-word?”] Ultimately the play was performed.

In some instances, where schools have stopped the production of a play, the students have found non-school venues to perform.  That was the case with a production of “La Cage aux Folles,” that was to be performed by the Trinity Preparatory School in Orlando, Florida.

The show must go on.

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