How ‘Hamilton’ Cast’s Message to Mike Pence Could Have Faced Punishment Despite First Amendment

By Nick Frost, Staff Writer

When Vice President-elect Mike Pence attended the hit Broadway musical “Hamilton” on Nov. 18, 2016, he was delivered a message from actor Brandon Victor Dixon, who plays the role of Vice President Aaron Burr:

“Vice President-elect Pence, we welcome you and we truly thank you for joining us here at ‘Hamilton: An American Musical.’ We really do,” Dixon said. “We, sir, we, are the diverse America who are alarmed and anxious that your new administration will not protect us — our planet, our children, our parents — or defend us and uphold our inalienable rights, sir. But we truly hope this show has inspired you to uphold our American values and to work on behalf of all of us. All of us. Again, we truly thank you for sharing this show, this wonderful American story told by a diverse group of men, women of different colors, creeds and orientations.”^[1]

The following week was full of headlines and reactions about the incident, including from President-elect Donald Trump, Vice President-elect Pence, and several celebrities, such as Viola Davis. These reactions included a demand for an apology for the cast’s harassment,^[2] that the message was “what freedom sounds like,”^[3] and a reference to the First Amendment of the U.S. Constitution,^[4] which reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”^[5]

These words are powerful ones, as they have protected and will continue to protect Americans from government interference in matters of publicly voiced opinions, but this clause does not protect Americans from all penalties for their actions. Free speech protects Americans from being arrested, fined, or otherwise sanctioned by the government for expressing themselves, so long as they do not interfere with others’ rights. But voicing controversial opinions still faces a threat of punishment through actors other than the government.

[pullquote]We, sir, we, are the diverse America who are alarmed and anxious that your new administration will not protect us — our planet, our children, our parents — or defend us and uphold our inalienable rights, sir.[/pullquote]

One example of a recent penalty was the boycott of Chick-Fil-A for its COO Dan T. Cathy’s statements and economic support of groups opposing same-sex marriage^[6]; this caused Chick-Fil-A to change its company platform on its controversial stance.^[7] Another instance involved Donald Sterling — who lost ownership of the Los Angeles Clippers, was banned from the NBA for life, and was fined $2.5 million, all because of private recordings of controversial statements he made going public.^[8]

Everyone in the U.S. has a right to speak their mind, but everyone does not have an inherent right to a job or to have their opinions meet public acceptance. The cast members could have been penalized for the message through their jobs, if they had acted against the wishes of the performance director. (This was not the case, as the director and other members of the show’s staff created the message.^[9])

The director could have, for instance, fired the cast members involved in the stunt — barring protections stated in their contracts. The cast members also could have been considered “criminal trespassers”^[10] if they were given notice that they were not allowed to act in such a way. In such a case, the cast members could have been fined and possibly jailed up to one year,^[11] again depending on the details of the contract and the extent of the trespass. This shows that this possible legal issue may have more to do with contract law than constitutional law.

Another form of private punishment could have been through a negative free-market reaction impacting the show’s economic success. (Any protest would be unlikely to cause noticeable harm, however, because of the play’s popularity.) This potential downturn in profits could also put the cast’s employment at risk depending on the language in their contracts.

There has already been a movement to try and show disagreement with the message, as a paying customer used his time at the musical to protest.^[12] Social media sites have been filled with various reactions; some people voiced their disagreement, with others accidentally directing their comments toward the wrong group.^[13]

The majority of these reactions, both negative and positive, would fall under the same restrictions as the “Hamilton” message and other forms of speech in a private setting. In America, citizens have freedom of speech without government interference, but this does not protect those citizens from other possible consequences. All citizens need to be conscious of the risks they take.

Sources

[1] http://www.nytimes.com/2016/11/19/us/mike-pence-hamilton.html

[2] http://www.usatoday.com/story/news/politics/onpolitics/2016/11/19/mike-pence-hamilton-broadway-donald-trump/94113080/

[3] https://www.washingtonpost.com/news/arts-and-entertainment/wp/2016/11/20/pence-says-he-wasnt-offended-by-hamilton-as-trump-continues-to-demand-an-apology/

[4] http://www.providencejournal.com/news/20161121/amid-hamilton-debate-viola-davis-posts-1st-amendment-reminder–poll

[5] USCS Const. Amend. 1

[6] http://www.christianpost.com/news/chick-fil-a-president-says-gods-judgment-coming-because-of-same-sex-marriage-78485/#SUuZKIURo5MhCW2p.99

[7] http://radio.foxnews.com/toddstarnes/top-stories/chick-fil-a-president-says-company-opposes-gay-marriage.html

[8] http://time.com/81170/donald-sterling-los-angeles-clippers-nba-adam-silver/

[9] http://www.nytimes.com/2016/11/19/us/mike-pence-hamilton.html

[10] http://www.nycourts.gov/judges/cji/2-PenalLaw/140/140-15.pdf

[11] https://www.avvo.com/legal-answers/ny-criminal-code–punishment-and-sentence-for-2nd–9184.html