Neoliberalism and Disclosure 's New Trans Activism: The Politics of Discrimination in Hollywood and How to Fight It
2023; University of Illinois Press; Volume: 75; Issue: 4 Linguagem: Inglês
10.5406/19346018.75.4.02
ISSN1934-6018
Autores Tópico(s)Gender, Feminism, and Media
Resumofrom the 1960s to today, media activists have worked to hold Hollywood accountable for its discriminatory production practices, many of which stem from the early infusion of Wall Street funding and scientific management into what became the studio system (1920 to the 1940s). Few activist movements, however, have succeeded. With an examination of the historical forces that quashed many civil rights battles in Hollywood, this article recounts how entertainment business leaders partnered with political elites to deliberately install and sustain a neoliberal agenda in the movie industry over the last fifty years. This agenda reformulated already entrenched discrimination with its new logics of anti–affirmative action rhetoric, media deregulation, and free-market ideology.While the media industry's history of discrimination is influenced by the structural inequities within policy, law, and economics, production studies scholars reveal how these inequities are also enacted discursively, mediated socially, and naturalized as “the ways things are.” Filmmaker-activists today, therefore, differentiate themselves from past labor battles by designing communicative and social justice praxes to address the negative impact of neoliberalism in Hollywood. They conduct critical analyses of “both economic and discursive power” (Levine 66) and shift focus from the global to more locally situated imperatives by mobilizing workers, building coalitions, and transforming the dynamics of media production cultures. With a case study of the documentary Disclosure: Trans Lives on Screen (Sam Feder, 2020), this article examines the documentarians’ mode of activism within their production and marketing strategies and presents their keynotes, panel discussions, and press appearances as metatexts that circulate their mode of activist-filmmaking.The analysis provides a brief account of the 1969 Equal Employment Opportunity Commission (EEOC) hearing in Los Angeles to establish the sociohistorical context within which the motion picture industry “not only disseminated incipient neoliberal ideas, but . . . where the discourse and its policy implications were tested and ultimately made normative” (Quinn 469). It outlines how the conservative backlash to the hearings produced three major neoliberal strategies that stymied labor organizing in Hollywood: (1) industrial lobbying for media deregulation, (2) voluntary compliance agreements, and (3) the creative freedom defense. The second part of the discussion presents a case study of Disclosure and describes how the filmmakers’ praxis challenges Hollywood's formulation around the value of labor and the authorship of cultural narratives. It argues that Disclosure demystifies Hollywood's alleged immutability and models a means to reflect on and activate more humane conditions of production.While early neoliberal policy is most often associated with President Reagan's antigovernment initiatives in the 1980s, Eithne Quinn meticulously traces its antecedent to the Nixon White House (1969–74) and the administration's hostile response to the civil rights efforts of the EEOC led by Clifford Alexander Jr. (August 1967–May 1969). In early 1969, Alexander conducted hearings with three industries known for overt discrepancies between their workforce and the local demography (Quinn 472). At the one-day hearing for the motion picture industry, the general counsel recorded a “clear . . . practice of discrimination in violation of Title VII of the Civil Rights Act of 1964,” a “gross underutilization” of minoritized workers, and “recruiting systems that have as their foreseeable effect, the employment only of whites” (qtd. in Quinn 466). On Alexander's recommendation, the Department of Justice prepared lawsuits against the producers’ union (the Alliance of Motion Picture and Television Producers, AMPTP), multiple craftworkers’ unions (including the International Alliance of Theatrical Stage Employees, IATSE), and six of the seven major studios (466).Hollywood and Nixon administration allies responded with force. Publisher of The Hollywood Reporter Tichi Miles compared the hearings to “the Moscow system of jurisprudence” (qtd. in Smuckler 58). Senate Republican Everett Dirksen chastised Alexander before the Senate Justice subcommittee, denounced Alexander's “harassment of the business community” as a “carnival hearing,” and commanded him to cease his activities, or “I am going to the highest authority in this government to get somebody fired,” Dirksen warned (qtd. in Quinn 467). Within a week, Nixon announced plans to replace Alexander, who resigned before Nixon could follow through (Quinn 473).Jack Valenti, head of the Motion Picture Association of America and former media specialist to the Johnson White House, launched a revisionist PR campaign that rippled throughout Hollywood (Quinn 474). At the time, the industry was suffering from a recession (Smuckler 47), and Valenti recognized the financial value in undermining organized labor. He therefore blamed craft unions for Hollywood's equal-employment failures, a claim not without substance: unions had nepotistic admissions processes, created homogenous “experience” or “seniority” hiring rosters, and built a notorious “double refusal” structure in which a worker needed a studio job to earn union membership but needed union membership to land a studio job (Quinn 470–71). During the hearing, IATSE representative Josef Bernay argued that professional knowledge was passed on genetically or proximally—from father to son (Quinn 471)—to legitimize IATSE's gendered, racialized, and nepotistic membership procedures. Armed with such damning evidence, Valenti successfully indicted unions as the real racial discriminators, validating studio efforts to undermine labor organizing (Quinn 491).Valenti's rhetoric echoed much of the anti–civil rights activity of the era, which sought to eliminate “race or gender discourses rooted in redistribution” of resources, capital, opportunities, and so on, by focusing on racial exceptions rather than structural solutions (Crenshaw 126). He championed the “free” market as a natural means to correct racial struggles within the industry (Quinn 478). He propagated an image of media employment as a meritocratic “open door,” where anyone with talent, regardless of color, could walk through (qtd. in Quinn 469). He cited the successes of Gordon Parks Sr. and Sydney Poitier to allege the emergence of Black talent from this “open door” (Quinn 469) in an argument that concealed the structural hurdles laid before it: one must have mobility, capital, experience, or influential networks to enter. These obstacles maintain the structural asymmetries of North American society within Hollywood, where the most under-resourced communities in society are also the most marginalized in the industry.Due to the force of this backlash, the DOJ dropped the threat of legal action against Hollywood (Quinn 481). From the tumult, three major neoliberal strategies emerged: industrial lobbying for media deregulation, voluntary compliance agreements, and the creative freedom defense. The following sections outline how Hollywood elites, the courts, and government officials refined these neoliberal media strategies over several decades to serve private interests at the expense of labor and authorship.Two years after the hearing, Valenti utilized his close relations to the White House to offset the impact of the recession and ensure the future of the floundering film industry. He and other industry leaders met with Nixon to lobby for tax incentives. Months later, Nixon signed the 1971 Revenue Act, which included a provision for offshore tax shelters, where studios could take untaxed profits from exports and reinvest them in domestic production (Quinn 486). While Hollywood waged a rhetorical war against civil rights, the government's preferential treatment of the industry helped swell studio fortunes and expanded pathways for their proliferation into, and domination of, global markets (Wheeler 36). Hollywood and the White House wielded “their cultural, economic, and political power” to protect their interests—their closed-door dealings prevented a public and “open evaluation of whether they are proper stewards of the nation's media” (McChesney 126–27).Valenti's successful efforts were part of an early movement of industrial lobbying for deregulatory policies, as pro-business leaders fought Progressive Era regulations and sought to replace social welfare policies with the “economic efficiency” of a competitive market (Aufderheide 25–27). In the 1980s, at the height of Reagan's “government is the problem” rhetoric (C-SPAN), a flurry of media deregulation initiatives created a “synergy” between politics and private business (Holt 22). In one of his biggest moves to support the motion picture business, Reagan stopped enforcing the 1948 Paramount decrees to allow corporate consolidation and vertical integration (Meehan 43), which he argued was necessary for economic efficiency in a free market (Holt 26).Media deregulation and corporate conglomeration grew in the 1990s and exploited the booming digital revolution. With the end of the Financial Interest and Syndication Rules in 1993, the television industry could finally own, rather than simply license, intellectual property (IP). This change gave television executives more control over content and its creators. By signing the Telecommunications Act in 1996, President Clinton also “abolished all legal barriers” that had once separated the broadcasting, cable, and telephone industries, with the alleged aim of encouraging competition (Meehan 43). Such deregulatory change did not invite competition but crushed it, as exemplified by the rise of the broadcasting behemoth Clear Channel (now iHeartMedia), which owned nearly 1,200 radio stations by 2003 (McChesney 128–29).Thus, the industry hastened toward a model of “trans-industrial media conglomeration”—corporations vertically integrated their holdings across various forms (film, TV, music, news, streaming, and so on) and horizontally integrated multiple units that performed the same role (networks, production companies, distribution companies, and so on) (Meehan 43). A high-profile example is Disney, which owns film studios, production companies, television networks, theater chains, and even a construction company. By October 2022, Disney employed nearly 200,000 people and was worth over $200 billion (“Profile: Disney”).Disney also provides a significant example of how media deregulation, corporate conglomeration, and the concentration of ownership have worked to structure increasingly exploitative labor practices. Disney was one of the first corporations to capitalize on digital streaming and bring Hollywood into its current franchise era (Kidman 3) with sprawling properties such as the Marvel Cinematic Universe (MCU, 2008–present). In the current configuration, studios own their IP and grant total power to a corporate manager, such as Marvel's Kevin Feige, who oversees the business and creative direction of the whole franchise. This corporate strategy leads to a new form of authorship, which Shawna Kidman calls “corporate auteurism” (3), in which the business expertise required to maintain an ever-expanding brand is more important than original ideas, the creative vision of craftspeople, or the star power of celebrities (3–4). The calculated corporate discourse around the creative manager—such as Feige as the “architect” of the MCU (qtd. in Kidman 12)—functions to justify the setup: publicly parading the vision of a corporate “master” inflates the value of corporate management, obscures the true collaborative nature of media-making, and deflates the wages of workers doing the actual creative labor (Kidman 18).Compounding such labor exploitation is “the industry imperative to cut costs” (Fortmueller 5), necessitated by the market requirement for all corporations to grow endlessly. To accomplish this, conglomerates leverage competition globally “to undermine labor protections and secure cost advantages” (Curtin and Sanson 9). This leads media productions to “run away” from high domestic expenditures to countries with exploitative wages and no unions, or to North American states that offer tax breaks and controversial “right to work” laws (Fortmueller 6). The field of visual effects (VFX) provides a high-stakes example of such labor exploitation and serves as the canary in Hollywood's conglomerated coalmine.Despite their integral status in the VFX-heavy franchise era, VFX studios must often move shop to follow geographically shifting tax incentives, which means that their artists—who are often contractors, not staff—must maintain hyper-mobility if they want to sustain a career. Of course, while many artists cannot follow VFX gigs globally, conglomerates such as Disney can bounce around the globe and solicit the best price (Codega). Such outsourcing has caused many domestic VFX houses to shut down. Rhythm and Hues filed for bankruptcy just eleven days before they won an Oscar for Life of Pi (Ang Lee, 2012) at the 85th Academy Awards, the same ceremony at which five hundred VFX workers protested to raise awareness about the bankrupting of twenty-one other domestic VFX companies in the previous decade (Giardina). When Bill Westenhofer of Rhythm and Hues spoke to these issues in his acceptance speech, the Academy cut his mic and cued the orchestra, forcing him offstage (Fortmueller 5).As media institutions formalized globally—through marketization, conglomeration, and outsourcing—they also informalized locally, transforming certain labor practices into corporate externalities (Curtin and Sanson 11). Today media corporations promote “individual enterprise” within a “gig economy” of contracted labor, where the “risks of both labor and capital are displaced onto individual workers,” who must plan for their own health care, childcare, retirement, and career sustainability (Curtis and Sanson 11). For example, VFX studios must bid for a contract in what workers call “a race to the bottom,” in which VFX studios “undercut each other so much that by the time they finally get that contract . . . they're lucky to break even” (Codega). As a result, contracted workers within those studios have even less agency; they must acquiesce to their studio's demands and conditions (which have trickled down from corporate demands and conditions) to help their studio break even. This means they often work overtime for weeks on end without time off—and sometimes by sleeping in the office, “because driving home takes too long” (qtd. in Codega). In totality, this has led to worker burnout, physical and mental illness, and suicide (Codega).IATSE's 2021 strike authorization also illuminates the physical and emotional toll of corporate auteurism and cost-cutting on unionized media laborers. IATSE members authorized a strike for issues such as “excessively unsafe and harmful working hours,” “[u]nlivable wages for the lowest paid crafts,” “[c]onsistent failure to provide reasonable rest during meal breaks, between workdays, and on weekends,” and lowered wages for streaming productions, even those with budgets that “rival or exceed those of traditionally released blockbusters” (“By a Nearly Unanimous Margin”). During IATSE's contract negotiations, Ben Gottlieb, a lighting technician, created the account IATSE Stories on Instagram, where union members publicized anonymous stories of hazardous working conditions and the cost of securing a livable wage. Within the first day online, thirty-two posts documented issues such as working “39 days in a row without a day of break” (IATSE Stories, “Hey saw your posts”), being forced to work with a positive COVID case on set (IATSE Stories, “Please keep me anon”), and surviving a car crash after falling asleep at the wheel due to a fifteen-hour day (IATSE Stories, “I once worked a 15 hour day”), among many more. While this social media mobilization brought attention to workers’ rights, the studios avoided a strike and quickly settled with union leaders on a polarizing agreement of incremental reform that satisfied some and angered others (Faughnder; Maddaus).As of July 2023, studios’ cost-cutting measures have become more dramatic. With the rise of large language models and deep-fake technology, many studios are investing in these unregulated artificial intelligence technologies, and writers and actors fear this will replace their labor entirely. Studio proposals of using AI to generate scripts and collect actors’ digital likenesses led the WGA and SAG-AFTRA to strike jointly for the first time since 1960 (Klippenstein). Despite the dissent from their own workforce, companies such as Disney and Netflix are doubling down. While Disney “declined to go into specifics about the nature of their investments . . . Netflix is offering as much as $900,000 for a single AI product manager” (Klippenstein)—an amount that, as actor Rob Delaney put it, “could qualify thirty-five actors and their families for SAG-AFTRA health insurance” (qtd. in Klippenstein). Taken together, these examples illuminate how media deregulation buoys studio power in the face of labor organizing and disenfranchises workers who must operate without the legal, economic, and political safety net that protects their industry and the deep pockets of their employers. With no protections, many workers are attempting to reform the industry, and the next section considers some of the pitfalls of these current strategies.One year after the EEOC hearing in 1969, the DOJ settled on a two-year voluntary compliance agreement in which unions were responsible for achieving “20 percent minority employment in the film business” and creating an educational program “to train seventy minority members in specific crafts” (Quinn 481). While there was a short-term rise in the employment of minoritized people, the agreement to maintain or increase those numbers was not legally binding. Additionally, many minoritized workers could not afford union dues, a major political-economic issue the agreement had not considered. Thus, Hollywood studios successfully evaded legal regulations and consigned the implementation of civil rights to the discretion, moral benevolence, and personal values of union leaders. When the agreement expired, the unions’ “roster system continued largely unabated” (Quinn 481), and neither the DOJ nor the EEOC renegotiated (Smuckler 62).This failed attempt at equity had a lasting impact, as revealed by the 1985 lawsuit Directors Guild of America v. Warner Bros/Columbia Pictures and by more recent reformist agendas in Hollywood. In 1983, the DGA filed class action lawsuits against Warner Bros. and Columbia Pictures on behalf of its Women's Steering Committee, who had discovered that from 1949 to 1979, seven white women had directed only 14 of over 7,300 major studio films and twenty-two women had directed just 115 of the more than 65,500 hours of broadcasted, prime-time, dramatic television (Smuckler 245). The DGA charged each studio “with employment discrimination in violation of Title VII of the Civil Rights Act of 1964” (Smuckler 262). Judge Pamela Rymer, however, ruled against the DGA in 1985, largely because the DGA had not worked to rectify its own discriminatory practices illuminated by the EEOC. Because both studios and unions were responsible for hiring—with unions providing studios with their experience rosters—Judge Rymer argued that the DGA was not a victim of discriminatory hiring but instead contributed to producing the employment inequities that disenfranchised the women it claimed to defend (Smuckler 270–71).While Judge Rymer accurately identified the DGA's history of discrimination, she did not recognize how Hollywood's “decentralized” and “subjective” hiring procedures could lead to a common practice of hiring discrimination (qtd. in Smuckler 269). Her ruling that the DGA had failed to demonstrate this commonality in court—a major requirement for class status—obscured how systems of oppression operate not simply through legal precedent, but also through the culture of film production and its discursive, socio-symbolic order. Instead of teasing out this complexity and finding legal means to rectify it, Judge Rymer “accepted the defendants’ point of view, with very little analysis or critique,” and participated in protecting the creative jurisdiction of a privileged few (Smuckler 271).More recently, Hollywood has again come under cultural scrutiny with social media movements such as #TimesUp, #OscarsSoWhite, #5050x2020, #StarringJohnCho, #InclusionRider, and #ChangeHollywood calling for diversity and equitable production practices. The Time's Up Foundation offers guides for studios to provide adequate health care for their workers (timesupnow.org). Change Hollywood provides a “roadmap” for agencies, studios, and production companies to build antiracist workplaces and support Black talent (hollywood.colorofchange.org/roadmap/). The Inclusion Rider acts like a legal document for production companies and studios to commit, in good faith, to diversifying their workforce (Kotagal et al.).While well-intentioned, many of these initiatives operate through subtle neoliberal logics. They present diversity as an issue worthy of support only through evidence of its profitability in the market (Newman; Sperling; This Changes Everything [Tom Donahue, 2019]). They also define the concept of professional value as a variable controlled by those at the top, continuing to position Hollywood elites with the power to ratify or refuse their goodwill. The Time's Up Foundation's Guide to Equity and Inclusion during COVID-19 Recovery contends that “the fight to end systemic racism needs to be led from the top down and informed by . . . employees” (5). This language communicates solely with employers and involves minoritized people as informants of their own marginalization to those with the power to hire and fire them. The Inclusion Rider proposes that Hollywood executives “seek opportunities” to hire traditionally marginalized workers (Kotagal et al. 5), but if they fail to do so, they can make a “monetary commitment to deepening diversity” (8). One simply needs enough capital to defer the problems of, and solutions to, discrimination.Intentionally or not, many of these strategies promote a capitalist co-optation of civil rights. Like Valenti's “open door,” minoritized people must earn support through the exceptionalism of industry-defined merit, and their presence must be justified by the logics of the free market—where issues of social welfare or public interest are confined entirely within the realm of profit. In addition, these strategies have pitfalls regarding the authorship of cultural narratives, which must also adhere to the logic of capital. Most initiatives define diversity through visual or quantitative differences (physical appearance, numbers in hiring) as opposed to qualitative cultural difference (located through textual analysis and/or interrogation of production cultures). They fail to analyze whether “diverse” products capitulate to or oppose hegemonic ideologies, and without a transformation of the homogenous narratives that Hollywood produces, equity and inclusion initiatives will continue to maintain a corporate status quo. The next section delves into several battles over authorial freedom and why it has been hard for minoritized people to challenge Hollywood's narrative hegemony.During the EEOC hearing in Hollywood, the resident counsel for Twentieth Century Fox formulated a creative freedom defense to justify its discriminatory hiring practices. The counsel framed the industry as inherently unpredictable and oriented around rigid deadlines, where familiar relationships were necessary to meet the industry's singular demands. He also argued that the industry's most precious resource—time—could not be rationed out to diversity efforts if studios were to maintain their rigorous production schedule (Smuckler 50). The homogeneity of the industry therefore formed from the need for unregulated creative freedom in an exceptional industry.Warner Bros. co-opted and retooled the creative freedom defense across two major cases: the 1985 DGA lawsuit mentioned previously and Lyle v. Warner Bros. Television Productions et al. (2006). During the DGA case, Warner Bros. penned its “First Affirmative Defense,” which asserted that its right to hire at its own discretion, without interference from government mandated quotas, was “part of the creative process . . . and thus represents a form of speech protected by the first amendment” (qtd. in Smuckler 259–60). In 2006, Warner Bros. developed this defense further against Black female writers’ assistant Amaani Lyle, who had worked on the show Friends (NBC, 1994–2004). In her lawsuit, Lyle claimed she was fired in retaliation for challenging the show's cultural practices in a racist and sexist writers’ room—not for “poor typing,” as Warner Bros. contended (Heuman 196). The 2004 California Court of Appeals brief outlines the nature of her claims, the evidence for which came directly from Lyle's and the writers’ depositions: We conclude there is sufficient evidence from which a reasonable jury could find the writers’ room on “Friends” was a hostile or offensive work environment for a woman. The evidence in the record shows [the writers] constantly engaged in discussions about anal and oral sex using the words “fuck,” “blowjob,” and “schlong,” discussed their sexual exploits . . . commented on the sexual nature of the female actors on the show, made and displayed crude drawings of women's breasts and vaginas, pretended to masturbate and altered the words on the scripts and other documents to create new words such as “tits” and “penis.” This conduct occurred nearly every working day of the four months Lyle spent on the show. . . . A jury could find the sexual conduct in this case particularly severe because Lyle was a captive audience. (California State, Lyle v. Warner Brothers)WBTV et al. wrote a “creative necessity” defense that proclaimed their writers required this lewd environment to successfully produce the jokes on the show. As the defense put it, the Friends writers were not liable for issues such as sexual harassment in a creative environment where they “were only doing their jobs” (qtd. in California State, Lyle v. Warner Brothers). Though the California Court of Appeals found “sufficient evidence” of sexual harassment, it also wrote that the “defendants’ theory of ‘creative necessity’ has merit,” and they were “entitled to pursue their theory at trial” (California State, Lyle v. Warner Brothers).In its appeal to California's Supreme Court, Warner Bros. evolved its defense again. Along with the WGA, AMPTP, and the University of California Regents, WBTV et al. submitted briefs that positioned the case as a matter of free speech, not equal employment (Heuman 197). They declared that speech, including hostile and lewd speech, must be safeguarded in a “communicative workplace,” regardless of necessity (qtd. in Heuman 196). Thus, WBTV et al. and amici situated the rights of minoritized workers as an absolutist threat to the speech and creative expression of those already in power. No court, however, has proposed what minoritized workers might need to work with that same sense of creative freedom and workplace jurisdiction. These dynamics reveal how a free speech defense can be used, both legally and socially, to protect dominant culture and punish any anti-assimilationist resistance to it.The Supreme Court of California ultimately threw out Lyle's case because they found “insufficient factual support for Lyle's harassment claim” (Heuman 196). Though the ruling mooted WBTV et al.’s defense, the defendants’ arguments were symbolically embedded within the discourses of professionalism in Hollywood (Heuman 197). Their free speech defense served to limit legal regulation within the private sphere of Hollywood's creative spaces, which suggested a binary of “insider/outsider,” in which the courts, alongside minoritized workers, were framed within the discursive notion of “outsider” (Heuman 204). In this sense, “insiders” or “professionals” are agents of the institution—they use the “norms of occupational identity, membership, and performance,” as well as their authority over labor processes, to adjudicate arbitrary constructs of professionalism (Heuman 198). In a notable example from the WGA's amicus brief, prominent TV writer Steven Bochco wrote, “What goes on in that room is, for me, as privileged as any conversation between a husband and wife, or a therapist and patient,” and there is “an implicit contract among the writers: what is said in the room, stays in the room” (qtd. in Heuman 201). This notion of “inside/outside”—the discursive construction of tacit consent within familial, imbalanced, and vulnerable relations, within a privatized workplace that exists without public scrutiny—engulfs and minoritizes specific voices. It privatizes workers’ communicative functions and justifies their communicative dysfunctions, not along the arbitrary metrics of merit, but along the equally arbitrary hierarchies of socio-symbolic order. Workers must constantly prove their value to earn and keep a job (Caldwell 68), often by acquiescing to prevailing working conditions and to those in the hierarchical position to enforce them.This professional order directly impacts authorship and its resulting narratives. Veteran TV writer Felicia Henderson describes Amaani Lyle's experience in the writers’ room as encompassed within a process she calls “situational authorship”—which names how the familial relationships, rituals, and traditions of the writers’ room determine the collectively debated authoring of television content (1
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