The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The New York Times (Javier Hernandez) reported this Sunday:
The Metropolitan Opera said on Sunday that it would no longer engage with performers or other institutions that have voiced support for President Vladimir V. Putin of Russia, becoming the latest cultural organization to seek to distance itself from some Russian artists amid Mr. Putin's invasion of Ukraine.
Peter Gelb, the Met's general manager, said that the Met, which has long employed Russians as top singers and has a producing partnership with the Bolshoi Theater in Moscow, had an obligation to show support for the people of Ukraine.
"While we believe strongly in the warm friendship and cultural exchange that has long existed between the artists and artistic institutions of Russia and the United States," Mr. Gelb said in a video statement, "we can no longer engage with artists or institutions that support Putin or are supported by him."
I certainly don't support Putin, but I don't support ideological blacklists, either, whether it's of artists who back Putin, or who back the Chinese government, or who back Trump or Biden or Ocasio-Cortez. Indeed, one problem with these blacklists is that they lead to calls for broader blacklists. (Indeed, what about Chinese performers who, whether out of ideological conviction or misplaced patriotism or fear of reprisal, have spoken out in support of Xi Jinping?)
To be sure, star performers trade in part on their reputations and goodwill. Some (though I expect only some) might prominently back certain causes in part to improve that goodwill; and sometimes the person or cause one backs might undermine goodwill. From a purely financial perspective, a producer might conclude that employing a now-unpopular star is a bad idea. But I think that prominent cultural institutions should try to resist this pressure, and should try to focus their audiences more on the art, than on the artists' politics.
In some states, such blacklisting would indeed be illegal, at least when the artists are viewed as employees rather than independent contractors under state law (see my Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation); indeed, I expect that would be true of my own California. New York's ban on political discrimination is limited to election-related speech ("running for public office, … campaigning for a candidate for public office, or … participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group"), and it sounds like that isn't the support of Putin that would count. (On its face, the statute doesn't limit itself to American public office, so, presumably, a Frenchman's having campaigned for candidate Macron, or a Russian's having campaigned for candidate Putin, would be protected, but of course Putin doesn't really need that much election-related help.)
New York law does also ban discrimination based on "recreational activities," which means "any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material." That might cover some political speech, though New York cases are unclear. Compare Cavanaugh v. Doherty (N.Y. App. Div. 1998) (treating an allegation that plaintiff was fired "as a result of a discussion during recreational activities outside of the workplace in which her political affiliations became an issue" as covered by the statute), and El-Amine v. Avon Prods., Inc. (N.Y. App. Div. 2002) (apparently likewise as to plaintiff's "involvement in a vigil for Matthew Shepard, the gay college student who was brutally murdered in Laramie, Wyoming," Jennifer Gonnerman, Avon Firing, Village Voice, Mar. 2, 1999), with Kolb v. Camilleri (W.D.N.Y. 2008) ("Plaintiff did not engage in picketing for his leisure, but as a form of protest. While the Court has found such protest worthy of constitutional protection, it should not engender simultaneous protection as a recreational activity ….").
But in any event, even if the Met's actions—and similar actions by other institutions—are legal, I think they are a bad idea: they lead to more political divisiveness and hostility, less free and open discussion, and pressure to implement broader suppression in the future.
After drafting the post, I also noticed this article by Prof. Tyler Cowen (Bloomberg Opinion) that makes very similar points; I highly recommend it.