So advises sleazy attorney Billy Flynn in the Broadway classic Chicago, which satirically compares the American legal system to a gaudy show. Lawyers with a flair for the dramatic and an eye for the press can sometimes get one over on their jurors, even if their actual arguments don’t make any sense.
Broadway actors themselves may soon face just such a legal circus in an effort to deprive them of what little worker power they have. The corporatist right’s favorite antitrust lawyer has decided that actors apparently have too much power in the labor market. You read that right. Theater workers — famously underpaid and exploited theater workers — have too much power at the bargaining table. Ah, Broadway, where it’s easy to break in and no one ever turns you down.
The lawsuit in question accuses the Actors Equity Association, the main union for theater actors, of conspiring with unions for film and television performers to unlawfully maintain a monopoly in the theatrical labor market. The plaintiff has notably teamed up with Joshua Wright, the Republican former Commissioner on the Federal Trade Commission.
Wright infamously never met a corporate monopoly he didn’t like. He’s received tons of cash from Google, Facebook, Amazon and Apple over the years, and gladly let them gobble up much of the rest of the technology industry under his time at the FTC. The fact that he finally thinks America’s antitrust laws have been violated is quite an about-face, until you realize that the purported violator is a union. Wright now teaches at the arch-libertarian George Mason University’s Antonin Scalia Law School, a breeding ground for right-wing corporatist hacks. His colleagues’ loathing, unadulterated loathing, of unions is old news. To someone like Wright, the only legitimate use of antitrust is to suppress workers, not to challenge the actually powerful.
Monopolies are often compared to toll booths: to access a good that everyone needs, you unfairly need to pay the toll operator, even though they contribute almost nothing. To prove his case against the AEA, Wright would have to show that the union created an unfair barrier to entry in the theatrical labor market, that the plaintiff had no viable alternative but directly working with them, and that the public has been materially harmed as a result. To maintain his own credibility, Wright would also probably need to show that theater consumers in particular had been harmed, given his worshipful praise of the consumer welfare standard.
So, who is Wright’s plaintiff? It’s Garth Drabinsky, a theater producer who previously spent five years in prison for fraud and forgery. He’d cooked the books of his company Livent to hide major losses from investors — like an upside-down Max Bialystock and Leo Bloom from The Producers, minus the singing Nazis.
Drabinsky’s lawsuit claims that the actors’ unions make it unfairly impossible for him to hire performers. “AEA abuses and maintains its chokehold on Broadway productions by blacklisting producers for any pretext, with no opportunity for due process,” according to a press release from the plaintiff.
First of all, that’s not what due process means. A union telling its members not to work with a potential employer isn’t a legal action, it’s a voluntary choice made by the members and only enforced by the union itself. There is no court proceeding, because the power of the state to imprison, fine, or otherwise punish people under the law never comes into play here.
One must also consider why this plaintiff can’t seem to find employees. Drabinsky wound up on AEA’s bad side because he allegedly stiffed union workers and created a horrible working environment on his last play, Paradise Square. In a letter to their union, Paradise Square actors and stage managers requested that the AEA blacklist Drabinsky due to “outstanding payments and benefits, and a continued pattern of abuse and neglect that created an unsafe and toxic work environment.” AEA had already decided to sue Drabinsky over separate unpaid union dues.
So to summarize, Drabinsky appears to have signed contracts agreeing to pay his union employees, then failed to uphold his end of the contract. Meanwhile, he behaved in a way which union workers determined they wouldn’t want themselves or their colleagues to experience again. Following their members’ recommendation, AEA advised its members not to work with Drabinsky, and the other actors’ unions followed suit in solidarity.
Drabinsky, in other words, doesn’t face any unfair barrier to entry. He faces consequences for reneging on his own contracts and creating a hostile work environment. The reason he can’t find workers is because actors, union and not, choose not to work with him out of solidarity. (There’s no people like show people. They’re proud to be working class.)
And the public hasn’t been materially harmed — sure, we may not get to see a Drabinsky theatrical production again, but no one producer is so uniquely important to the theater market that Broadway measurably suffers, in a product diversity sense, for their inability to find actors to perform their work. Tickets on the Great White Way are just as ridiculously unaffordable as ever, mostly due to pent-up demand from throughout the pandemic. But Paradise Square flopped due to poor ticket sales and low audience interest, so there isn’t some massive audience for the play that’s being deprived of their opportunity to see Drabinsky’s work by those mean old unions. In short, it’s hard for Wright to invoke his beloved consumer welfare standard.
The issue to Drabinsky is the existence of a blacklist itself. His antitrust lawsuit against the AEA is a follow-up to a separate defamation suit, since he’s mad that his actors criticized his workplace practices. In the press release about his antitrust case, Drabinsky mendaciously implies a comparison to McCarthy-era blacklists, writing “Blacklisting in the U.S. entertainment industry has an appalling and loathsome history – it has decimated careers and polarized sectors of creative talent.”
Invoking a tool used to suppress leftists in order to attack trade unions is pretty low. But Drabinsky isn’t a potential employee being gatekept by studios and institutions because of his political beliefs. He’s an employer himself, who no one wants to work with because he’s apparently a terrible boss. This isn’t an injustice, it’s a direct consequence of his behavior in the relevant domain of life. Drabinsky doesn’t have a guaranteed economic right to actors, but actors have a right not to apply for jobs with him — or audition, as the case may be — if they don’t want to. That’s showbiz, baby.
Finally, the implication of the complaint itself is just obviously ludicrous. There is no shortage of competition in the theatrical labor market. Being an actor is a famously humiliating experience, given the number of people competing for every single opportunity. This is such a well-known part of the profession that there are many, many, many Broadway shows about how hard it is to get booked on Broadway.
What Drabinsky and Wright will never appreciate is that actors are people. People who need people. They’re not impersonal tools for producers to toy with, and they’re certainly not overly empowered at the negotiating table. Unions aren’t what’s keeping Drabinsky from hiring actors — his horrible practices are.
Or, to put it less delicately, “In all of the whole human race, Mrs. Lovett, there are two kinds of men and only two. There’s the one staying put in his proper place, and the one with his foot in the other one’s face.”
Drabinsky, and Wright, are the latter.
UPDATE: An earlier version of this post incorrectly stated that Joshua Wright was a former Chair of the Federal Trade Commission. He is a former Commissioner, but did not serve as Chair.