San Diego Library Lawsuit: Race, Art, and Representation
By Darius Spearman (africanelements)
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A significant legal battle is unfolding in San Diego, California, raising profound questions about race, artistic expression, and who gets to tell the stories of Black historical figures. Annette Hubbell, a white actress, is suing the San Diego Library after her one-woman show, which included portrayals of iconic Black women like Harriet Tubman and Mary McLeod Bethune, was canceled (atlantablackstar.com).
This controversy highlights a complex intersection of civil rights, free speech, and the ongoing struggle for authentic representation in the arts. The library’s decision, endorsed by its Diversity and Inclusion Executive Council, sparked a lawsuit that could set important precedents for public institutions nationwide (sandiegouniontribune.com).
Hubbell’s Fight for Equal Protection
Annette Hubbell’s lawsuit claims that county officials denied her the opportunity to honor American heroines solely due to her race (atlantablackstar.com). This action, she argues, violates her Fourteenth Amendment right to equal protection and federal civil rights laws. The Fourteenth Amendment’s Equal Protection Clause is a cornerstone of anti-discrimination law in the United States. It mandates that no state shall “deny to any person within its jurisdiction the equal protection of the laws,” ensuring that all individuals are treated equally under the law, regardless of characteristics like race.
Hubbell’s lawyer, Chris Barnewolt, stated that they aim to establish a legal precedent (atlantablackstar.com). They want to ensure that government entities treat individuals equally and fairly, preventing decisions based on race in such instances. Hubbell believes that if the San Diego County government can make decisions based on race in this case, then any county or local government could do the same, and they want to ensure this practice stops here.
The Library’s Free Speech Defense
Conversely, the San Diego Library argues that its First Amendment right to free speech allows it to choose who speaks for and performs the lives of historical figures (atlantablackstar.com). This includes the right to decide against having a white woman portray Black historical figures. The First Amendment protects freedom of speech, which includes artistic expression. When a government entity, like a public library, hosts or controls expressive events, its actions can be subject to First Amendment scrutiny.
The library’s motion to dismiss the lawsuit cites federal cases, including *Green v. Miss USA*, which determined that a government entity has the right to “speak” for itself and produce expressive events with specific messages (atlantablackstar.com). This legal concept is known as the “government speech doctrine.” It holds that when the government itself is speaking, it is generally free to choose the content of its message without being subject to the same First Amendment constraints that apply to private speech. The library contends that coercing its speech through anti-discrimination laws would weaken its ability to function and pursue its missions, and could even force it to host events like “Drag Queen Story Hour” if proposed by a contractor (atlantablackstar.com).
Arts Equity and the “Unintended Message”
Arts equity advocates argue that Hubbell’s portrayal of Black historical figures is problematic due to the historical context of racial exclusion and the ongoing fight for diverse representation in the arts (atlantablackstar.com). Angie Chandler, an arts equity advocate, states that “colorblindness is a response” to historic exclusion and the erasure of Black stories in history, making it not a “two-way street” compared to colorblind casting in productions like “Hamilton” (atlantablackstar.com).
The historical context of racial exclusion in the arts is marked by a long legacy of underrepresentation, misrepresentation, and outright denial of opportunities for actors of color. This history includes practices like blackface, whitewashing, and the perpetuation of stereotypes, which have deeply impacted the narratives and images presented on stage and screen. Chandler emphasizes that non-white actors still struggle for roles beyond racial stereotypes. Therefore, it is not “simple, innocent and neutral for a white person to attempt to tell or perform the story of a Black person” (atlantablackstar.com). The library’s argument suggests that a white woman portraying Black historical figures could convey an unintended message that is “inescapably interwoven” into the performance (atlantablackstar.com).
Understanding Key Concepts in the Lawsuit
This legal principle states that when the government itself is speaking, it has the right to choose the content of its message without being subject to the same First Amendment constraints that apply to private speech. The San Diego Library uses this doctrine to argue its right to control its programming and the messages it conveys.
This refers to the practice of casting actors without regard to their race or ethnicity. While some see it as promoting equality, critics argue it can erase the historical experiences and cultural identities of marginalized communities, especially when racial identity is integral to a character’s story.
This is the adoption or use of elements of a minority culture by members of the dominant culture. In the context of performance, it can be seen as taking on a cultural identity that is not one’s own, especially when that identity is tied to a history of oppression and underrepresentation, even without overt racialized makeup.
Hubbell’s “Woman Warriors” and Its History
Annette Hubbell has been performing her “Woman Warriors” show for five years across the country, honoring various historical female figures, both Black and white, without prior issue until this incident (atlantablackstar.com). Her show brings to life “ordinary women who transformed themselves and left the world a better place,” including figures like Anne Bradstreet, Harriet Beecher Stowe, Corrie Ten Boom, Mary McLeod Bethune, Sojourner Truth, and Harriet Tubman (atlantablackstar.com).
Hubbell stated that she has never received negative comments in her five years of performing, and many Black individuals have thanked her for honoring these women (atlantablackstar.com). Her performance does not involve special makeup or exaggerated effects. Instead, she draws upon the words and ideas of these women to bring them to life (atlantablackstar.com). Her one-woman play is adapted from her 2019 book, “Eternity Through The Rearview Mirror: How Simple Faith Changes Everything — Seventeen Extraordinary Lives” (annettehubbell.com; atlantablackstar.com).
The “Unintended Message” and Authenticity
The library’s argument about an “unintended message” suggests that even if Hubbell’s intention is to honor historical figures, the act of a white actress portraying Black figures can, in itself, convey a problematic message due to the broader societal context of race and representation. This message might include cultural appropriation, which is the act of taking elements from a minority culture without understanding or respecting their original context, especially when done by a dominant culture. It can also reinforce historical inequities by inadvertently perpetuating the exclusion of Black performers from roles that authentically represent their heritage.
Furthermore, some might argue that a performer who does not share the racial identity of the historical figure cannot fully embody the lived experiences and cultural nuances, leading to a less authentic portrayal. Even if not intended, it could be perceived as a “white savior” narrative, where a white individual tells the story of a marginalized group, rather than empowering that group to tell its own stories. While Hubbell not using special makeup or exaggerated effects might be intended to avoid overt blackface, it does not necessarily negate concerns about cultural appropriation or authenticity. The absence of overt racialized makeup might shift the focus from individual performance choices to broader systemic issues of who gets to tell whose stories in public spaces.
Colorblind vs. Color-Conscious Casting: Key Arguments
Colorblind Casting (Proponents’ View)
- Provides more employment opportunities for actors.
- Ensures equality and fairness by conceptually removing racial divides.
- Allows actors to portray a wider range of characters regardless of race.
Color-Conscious Casting (Advocates’ View)
- Acknowledges and values an actor’s race and ethnicity.
- Uplifts actors from BIPOC communities.
- Allows for telling diverse stories mindful of race and culture.
- Addresses historical exclusion and misrepresentation in the arts.
The Legal Balancing Act Ahead
The court will likely apply a balancing test to weigh the library’s First Amendment rights against Hubbell’s anti-discrimination claims. This could involve strict scrutiny if the library’s action is deemed a content-based restriction on speech or if it involves a suspect classification like race. Strict scrutiny requires the government to show that the restriction serves a compelling government interest and is narrowly tailored to achieve that interest. Alternatively, intermediate scrutiny might apply if the restriction is considered content-neutral or involves a quasi-suspect classification. This would require the government to show that the restriction serves an important government interest and is substantially related to achieving that interest.
The library might argue that its programming decisions constitute “government speech,” which generally allows the government more leeway in controlling its own message. However, this doctrine has limitations, especially when it impacts individual rights. The court might also analyze whether the library space is a public forum, as this determines the level of scrutiny applied to speech restrictions. The Pacific Legal Foundation (PLF), representing Hubbell, is a non-profit legal organization that advocates for individual liberty and limited government. Their legal strategy will likely focus on arguing that the library’s ban constitutes an unconstitutional restriction on Hubbell’s free speech rights and a violation of anti-discrimination laws, emphasizing the importance of individual artistic expression.
Community Voices and Future Implications
While the provided information does not specify whether there was consultation with Black communities or stakeholders, their perspectives would be crucial in this discussion. Input from Black communities could validate concerns about representation, offer alternative solutions like collaborative performances, and highlight the historical and cultural significance of the figures being portrayed. Their perspectives could also inform the library’s future policies on diversity, inclusion, and programming, potentially leading to more culturally sensitive practices.
The outcome of this lawsuit could have significant broader impacts on future artistic performances, library programming, and policies on racial representation in public institutions. It could set a precedent for how race and representation are considered in casting and performance choices, potentially leading to more color-conscious casting or stricter guidelines for portrayals across racial lines. Libraries and other public institutions might re-evaluate their programming policies, prioritizing authentic representation and community input. The case could influence the development of clearer, legally defensible policies regarding diversity, equity, and inclusion, particularly concerning artistic expression and cultural sensitivity. Depending on the ruling, it could either create a chilling effect on certain types of artistic expression or empower institutions to enforce more equitable representation.
Potential Broader Impacts of the Lawsuit Outcome
Could set precedents for race in casting and performance, leading to more color-conscious choices.
Libraries may re-evaluate policies, prioritizing authentic representation and community input.
Could influence clearer policies on diversity, equity, and inclusion in public spaces.
May open the door for similar lawsuits regarding artistic freedom versus anti-discrimination.
ABOUT THE AUTHOR
Darius Spearman has been a professor of Black Studies at San Diego City College since 2007. He is the author of several books, including Between The Color Lines: A History of African Americans on the California Frontier Through 1890. You can visit Darius online at africanelements.org.
