Several readers have e-mailed me about this Florida Sun-Sentinel report:
Archbishop McCarthy High students [were disqualified] from a [drama] competition early this week for their performance of The Children’s Story. In the play, first published in 1963 by Shogun author James Clavell, third-graders in a classroom in a United States that has been defeated by a powerful enemy, presumably Communist, cut the flag into pieces. Their new teacher tells them if the flag is so good, everyone should get a piece and tells them to hand out the shreds. It’s a message about the dangers of mindless political indoctrination.
“The play is actually pro-American,” said Erin Fragetta, 15, a sophomore at the southwest Broward County school who worked on the production. “It was intended to be an anti-communist message, and the judges just turned it around on us.” . . .
McCarthy was competing against 10 troupes from Broward public and private high schools at the Florida State Thespians District 13 one-act play competition at Nova High on Monday and Tuesday.
After receiving complaints about the flag cutting, co-chairman Melody Wicht, who teaches drama at Pembroke Pines Charter High, disqualified the McCarthy team.
“Some people came to me after the play and complained about the performance,” Wicht said. “So I looked into it.”
Wicht said she based her decision on Florida Statute 876.52, which says “Whoever publicly mutilates, defaces or tramples with intent to insult any flag . . . of the United States shall be guilty of a misdemeanor of the first degree.”
“I tried to stay as objective as possible as they performed,” Wicht said. “My problem was that they took an American flag off the flagpole and cut it into pieces. They were disqualified based on Florida law.”
Jim Usher, from American Heritage School in Plantation, one of the three judges, said while he was “grossly offended” by the flag cutting, he didn’t base his rating of the play on it. He gave the play a fair rating — the lowest — based on overall performance, he said. . . .
The disqualification seems pretty silly: First, the Florida statute is unconstitutional, given the U.S. Supreme Court’s decisions in Texas v. Johnson and U.S. v. Eichman. Second, I don’t even see why people should be “grossly offended” here, any more than they should be “grossly offended” by, say, a flag-burning in a play about flag-burning. It reminds me of the Monty-Python-esque complaint about the University of Virginia employee using the word “nigger” as an example in trying to condemn racism.
At the same time, I don’t think that the disqualification is unconstitutional.
Judgments about which play gets an award necessarily involve decisions based in part on the content of the play, and in part even on its viewpoint. I doubt, for instance, that a play on the theme “Why blacks are inferior to whites” would or should get an award in a drama competition, no matter how well-acted it is. The quality of a performance turns in part on the quality of the message that the performance expresses; and while it might at times be petty, intolerant, or unduly partisan of the judges to reject certain messages, I think they are properly entitled to reject other messages as being beyond the pale. And while I don’t think that the judges should have rejected the play based on this particular message, I think that drawing this line is a matter for the judges in the competition — and for the public, in commenting on the judges’ decision — and not for the other kinds of judges that sit in courtrooms.
One might be able to argue the contrary, based on NEA v. Finley‘s suggestion that even in competitive, quality-based government decisions about art, “invidious” viewpoint discrimination is still impermissible. It’s hard to tell, since the Court mentioned this quite tangentially, and never defined what distinguishes potentially impermissible “invidious” viewpoint discrimination from permissible viewpoint discrimination. (As with drama competitions, NEA selections also necessarily discriminate in some measure based on viewpoint — I don’t think NEA panels, for instance, are constitutionally barred from preferring art that they see as containing an uplifting message over art that they see as containing a degrading message.) And it’s also not clear whether the Finley reasoning carries over from funding decision to awards decisions, where a government agency (such as a school district) endorses some production as the best of a group, and whether it carries over to K-12 schooling. Finley has, unfortunately, made the law something of a mush.
But I think that, even given Finley, the better view is that such competitions are free to apply any viewpoint discriminations that they want (perhaps setting aside discrimination based on religious viewpoint, which may be prohibited by the Establishment Clause) — and, as always, we’re free to mock them.
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