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Spider-Man Can't Turn Off the Critics

By Bennett Liebman

On December 28, 2010, New York Post reporter Michael Riedel (Riedel had previously been very critical of the production of the musical. See "And Spider-Man's Latest Troubles Are ..." New York Magazine, December 29, 21010 http://nymag.com/daily/entertainment/2010/12/and_spider-Tman_latest_troubles.html; Michael Riedel, "Bono, You too Should Care," New York Post, December 24, 2010) was denied his seat for the preview to the Broadway musical "Spider-Man: Turn off the Dark."

As described by Riedel:
As I was making my way down the aisle, a security guard approached and said, "Sir, may I see your ticket?"
I was wary, but showed it to him anyway.
"You can't sit here, sir," he said.
Suspecting that I was about to be thrown out of the theater on my ear (can't imagine why!), I stood my ground. "That seat is empty, and it's mine," I said as I scrambled over several sets of knees.
A few minutes later, the guard returned, this time with a house manager.
"I'm going to have to move you, sir," the manager said.
When I asked why, he said -- and I quote -- "For safety issues."
It really doesn't get any better than this, I thought. I didn't budge. The house manager reiterated: "I have another seat for you, sir, but I must move you for safety reasons." (Italics mine.)
I took out my notebook, identified myself as a reporter and asked why my seat in row D -- D for death, I guess -- wasn't safe. The color drained from the manager's face and, after conferring with the security guard, he said: "Sir, this seat has been sold twice. I have another seat for you, and I will give you a full refund."
Things were getting fishier by the minute, but I wasn't going to move.
"Sir, we cannot start the show until you move," the manager said. "If you do not, I will have to call the police..."
As the manager escorted me to the balcony, I said, "Look, are you banishing me to the balcony because I'm Michael Riedel of the New York Post?"
"I did not know who you were, sir, until you told me," he said.
My ego deflated, I plopped down into my new seat -- a lousy one, up in the rafters, against the wall. I fired a few more questions at the manager, but he bolted. I don't know if he was telling the truth about the seat being sold twice -- the view from my new seat was so bad, I couldn't see my old seat or half of the flying stunts.
But apparently D116, my original seat, was the only "dangerous" one since nobody else in the aisle was given the heave-ho.
I have yet to get to the bottom of this mystery. The press agent for "Spider-Man" says the producers weren't aware of it, though when they heard about it, they laughed.
I couldn't find the house manager after the show. And I'm still waiting for my promised refund. (Michael Riedel, "'Spidey' Stole My Seat!" New York Post, December 29, 2010. See http://www.nypost.com/p/entertainment/theater/spidey_stole_my_seat_Qm9hCJM2Hqh4I8Mr6ojsHP).

The short question is can they do that? Can Mr. Riedel be excluded from Spider-man?

The short answer is that if Mr. Riedel has a ticket, they can't exclude him due to a state statute passed in 1941. That statute basically reversed - for the Broadway stage - a longstanding precedent established by the New York State Court of Appeals. In that 1916 decision, dealing with a fact pattern similar to that of the Riedel case, the Court of Appeals upheld the right of a theater owner to exclude a newspaper critic from its theater. ( Woollcott v. Shubert, 217 N.Y. 212 (1916).). Michael Riedel can probably thank the Shubert Brothers for their persistence in trying to block criticism of their shows. They largely made this an issue that warranted legislative attention.

Alexander Woollcott and the Shuberts

In the 1916 case, the theater owners were the Shubert Brothers, and the critic was Alexander Woollcott, at the time the theater critic for The New York Times. (Woollcott eventually became a famous media personality, and his personality was parodied in the play "The Man Who Came to Dinner" written by George S. Kaufman and Moss Hart in 1939.). On March 17, 1915, the Shuberts opened the show, "Taking Chances." Woollcott's review, which did not have a byline, appeared on March 18. He found that the play was "not vastly amusing." ("Lou-Tellegen in a German Farce," New York Times, March 18, 1915.). He added, "Not much energy and ingenuity was left for the reconstruction of a good play. It must be said that the resulting product is quite absurd and little more than that." (Id.). Based on this review, the Shuberts determined to ban Woollcott from attendance at Shubert theaters.

Woollcott's review was hardly the only negative review of "Taking Chances." The play drew six mixed reviews and eight pans. Its only positive review was from the Shubert controlled New York Review. (Foster Hirsch, The Boys from Syracuse, First Cooper Square Press (1998 ) Pg. 107. See also "Reviewing a Play Under Injunction," New York Times, April 4, 1915.).

On April 1, 1915, Woollcott presented orchestra tickets to see a Shubert play but was denied admission. Woollcott and the Times sued under the State's Civil Right Act and soon received an injunction enabling Mr. Woollcott to admission at the Shubert theaters. (Id., "Reviewing a Play Under Injunction."). The exclusion of Woollcott soon became a major national issue, with much of the press lined up against the Shuberts. (The Boys from Syracuse, supra note 7 at Pg. 108.).

The focus of the litigation was New York State's Civil Right Act. (Civil Rights Law § 40.). This law had been passed in 1895 and was one of a number of state laws that had been passed in reaction to the Supreme Court decision in the Civil Rights Cases. (109 US 3 (1883).). The Supreme Court had restricted the federal Civil Rights Act of 1875 from applying to private actors. The New York law - then popularly known as the Malby Law after its sponsor Assemblyman and Former Assembly Speaker George Malby of St Lawrence County - had been largely designed to provide civil rights to blacks. (Ch. 1042, L. 1895.). It provided for civil recoveries in the event that to "all citizens of every race, creed or color" (Id. §2.) who were not provided full and equal accommodations at certain establishments including inns, restaurants, hotels, music halls and theaters. (Id. §1.). The legislation had been decried by The New York Times as a bill that "should have been entitled 'an act to enable negroes to blackmail the keepers of restaurants and hotels.'" (Editorial, New York Times, June 19, 1895. For another New York Times article in opposition to the Malby Law see "Equality By Legislation, New York Times, June 30, 1895.).

In 1913, the Civil Rights Law was expanded to include hotels "for the accommodation of those seeking health education or rest." (Ch. 285, L. 1913.). Additionally, the law prevented places of public accommodation from publishing or printing advertisements or communications that they intended to discriminate in violation of the Civil Rights Law. This law - the Levy-Wagner Law - was largely designed to prevent discrimination against Jews at resort hotels. (See Jeffrey Gurock, "The 1913 New York State Civil Rights Act, "1 Association for Jewish Studies Review, 93 (1976).).

In amending the Civil Rights Act of 1895, the 1913 legislation changed the beginning lines of the statute to read, "All persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages and privileges of any place of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any such place, shall directly or indirectly refuse, withhold from or deny to any person any of the accommodations, advantages or privileges thereof..."

That overall language change was the basis of the Times/Woollcott argument that the public enjoyed an overall right to enter places of public accommodations specified in the Civil Rights Law. (The Court of Appeals had ruled in Grannan v. Westchester Racing Association, 153 N. Y. 449 (1897) after the initial passage of the Malby Law that there was no general right of individuals to enter a place of public accommodation. The plaintiffs needed to find that the statute had been amended so that Grannan would no longer apply.).

At the trial level, the judge ruled for Woollcott and the Times. The judge found that New York Civil Rights act provided the plaintiff with a broad right of general access to the places, such as theaters that were specifically enumerated in the statute. (Woolcott [sic]v. Shubert, 90 Misc. 474 (Sup. Ct., N.Y. County 1915).).

On appeal, however, the courts ruled for the Shuberts. The appellate division (Woollcott v. Shubert, 171 A.D. 901, (1st Dep't 1915).), followed by the unanimous Court of Appeals ( See note 3 supra. Voting for the Shuberts in the case was Judge Cardozo, who had previously served as an attorney for the Shuberts. Andrew L. Kaufman, Cardozo, Harvard University Press, 1998, Pg. 101.), found that the Civil Rights Law did not provide for general public access to places of public accommodation. Instead, it only banned discrimination "expressly qualified by the subsequent words 'on account of race, creed or color.'" (Id. at 220.). Thus, only if Woollcott had been denied admission based on his race, creed, or color would the Civil Rights Law apply.

The plaintiffs further argued that the legislative debates involving the 1913 law established the intent to abrogate the common law. The Court of Appeals, however, found, "It is established law, however, that the statements and opinions of legislators uttered in the debates are not competent aids to the court in ascertaining the meaning of statutes." (Id. at 221.). Since Woollcott had not been discriminated against based on his race, creed, or color, the theater owner retained its common law right to exclude him at will.

The 1941 Statute

The Woollcott decision remained in place until 1941when the legislature enacted a new addition to the Civil Rights Law. (Ch. 893, L. 1941.) That bill added a new section to the Civil Rights Law (Civil Rights Law §40-b.) which was designed to repeal the Woollcott decision. The provision, which has remained unchanged since its enactment reads:

"No person, agency, bureau, corporation or association, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public entertainment and amusement as hereinafter defined shall refuse to admit to any public performance held at such place any person over the age of twenty-one years who presents a ticket of admission to the performance a reasonable time before the commencement thereof, or shall eject or demand the departure of any such person from such place during the course of the performance, whether or not accompanied by an offer to refund the purchase price or value of the ticket of admission presented by such person; but nothing in this section contained shall be construed to prevent the refusal of admission to or the ejection of any person whose conduct or speech thereat or therein is abusive or offensive or of any person engaged in any activity which may tend to a breach of the peace.

The places of public entertainment and amusement within the meaning of this section shall be legitimate theatres, burlesque theatres, music halls, opera houses, concert halls and circuses." [Emphasis added].

Thus, if a critic, or any other person, holds a ticket to a show, he or she cannot be ejected or excluded from the performance. That holds true even if the potential attendee receives a refund of the purchase price of the ticket. Only if the attendee is abusive, offensive or engaged in any activity which may breach the peace can the attendee be excluded or ejected.

The law does not apply to all conceivable places of public entertainment. Movie theaters are not covered. (Impastato v. Hellman Enters., 147 A.D.2d 788, 790 (3d Dep't 1989).). Sporting events are not covered, (Mandel v. Brooklyn Nat'l League Baseball Club, 179 Misc. 27 (Sup. Ct., Bronx Co., 1942).), but it certainly applies to Broadway theaters, and to Spider-man.

The constitutionality of the law was quickly tested after its enactment in 1941, and again it involved the Shuberts. The Shuberts in Manhattan denied admission to a patron named Robert Christie from Schenectady County who held a ticket for the Broadway show "Panama Hattie." Christie sued the Shuberts for $500 under the amendment to civil rights law. (Associated Press, "Laws Protecting Critics of Plays Argued in Court, "New York Times, September 21, 1941.). Longtime Shubert lawyer William Klein, as part of this test case, argued that it was important for theater owners to be able to exclude critics because "95 percent of readers of critical reviews are influenced by criticisms." (Id., Klein's long-time association with the Shuberts is highlighted in The Boys from Syracuse, supra note 7 at Pg. 125.). The Shuberts argued that the classification of the law, by excluding motion picture theaters, was a violation of the Equal Protection Clause.

The trial court disagreed with the Shuberts. It found that the statute was a valid exercise of the police power and that it was not possible to find that the exclusion of the motion picture theaters made the statute "arbitrary, capricious, or unreasonable." (Associated Press, "Rules for Theatre 'Safe for Critics,'" New York Times, December 13, 1941.).

On appeal, the Appellate Division affirmed the trial court's decision. It stated, "The New York statute is constitutional and sustains plaintiff's right to recover unless the exclusion of motion picture theatres makes it discriminatory." (Christie v. 46th St. Theatre Corp., 265 A.D. 255, 258 (3rd Dept., 1942); "Law Compelling Theatres to Admit Any One With Ticket Upheld by Court," New York Times, December 30, 1942.). It too was unable to find an equal protection violation because classifications are legislative matters. The fact that there are thousands of movie theaters while less than 50 Broadway theaters provided a reasonable justification for the enactment. (Id.)

The Court of Appeals affirmed the decision without an opinion (Christie v. 46th St. Theatre Corp., 292 N.Y. 520 (1944).), and the Supreme Court did not grant certiorari. (323 U.S. 210 (1944). See also "Theatre Ticket Law Is Up to High Court with New York Seeking Its Affirmation," New York Times, October 9, 1944.).

Accordingly, New York has a statute which "codifies the right of reasonable access for only the small group of patrons who attend places of 'public entertainment and amusement.'" (Steven Sutherland, "Patron's Right of Access to Premises Generally Open to the Public," 1983 U. Ill. L. Rev. 533, 544 (1983).). In response to the Shuberts' desire over the years to exclude critics, the New York State legislature has had in place, for nearly 70 years, a law that would protect Michael Riedel from being ejected from Spider-man. The producers of the show cannot reject Mr. Riedel's ticket or turn off Mr. Riedel's light.

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