Arts Attorney Caroline Kert on the Edges of the First Amendment

Parody and satire have always been central to American discourse: from Thomas Paine-era political cartoons to whatever pays the bills in the "Weird Al" Yankovic household; from Mad magazine to the monologues we watch every night before we turn off the TV. But what are the risks? That's a very real question in our current political era, one in which the President of the United States can get so angry at Alec Baldwin and Saturday Night Live that he tweets “how do the Networks get away with these total Republican hit jobs without retribution?” and then immediately adds: "THE RIGGED AND CORRUPT MEDIA IS THE ENEMY OF THE PEOPLE!" (all caps very much his).

On Tuesday, February 26, arts and entertainment attorney Caroline Kert will be at the Boulder Digital Arts Happy Hour to talk about the practicalities of free speech and the legal edges of the First Amendment. When can the government restrict artistic statement? When might art rise to the level of defamation? What is protected as parody?

We recently sat down with Kert to discuss her plans for the talk, at which she promises that she’s “not planning to get that philosophical.” Free local beer and practical advice? It’s like creative-class heaven.

Westword: So you're the guest speaker for the next BDA Happy Hour; can you nutshell for us what you plan to cover that night while everyone's enjoying the Upslope Brewery deliciousness?

Caroline Kert: Artists and creatives push the conversation around societal change. This usually happens through bold, audacious expression. The First Amendment protects from government encroachment on free speech, but there are some very important exceptions to understand. We'll talk about those exceptions as the edges to free speech, and look at some interesting cases that helped define the law.

You're an arts and entertainment attorney...can you tell us quickly what that means? What is it that you do in your day-to-day? As attorney gigs go, this seems like a fun one.

It is fun, because I really enjoy working with creatives. In reality, it means that I am looking at client contracts, customer disputes, entity formations and intellectual property protections through a specific lens. Because I have experience working with creatives, I understand the way their businesses work, what types of issues are most likely to come up in various industries, and how to help them best protect their revenue. Some attorneys like to help business clients who are in the construction industry, or banking industry. My passion is in the creative industries, so that's who I like to help.

What's your favorite example of someone who tried to skirt the edges of the right to free speech (or even the fair-use clause)...and totally failed?

Hmmm. I'm not sure I can come up with a favorite. I tend to favor wide protections of expression, so anytime someone fails and the government wins in their ability to censor, I’m not usually thrilled.

On the fair-use-clause front, there are a lot of amusing cases where someone tries to rip off an artist and fails. The case I find most fascinating right now is Richard Prince's defense of his Instagram works. That's still in litigation, though. It just touches on a lot of issues around what is transformative and what is commentary in creating new works.

Why are we still using the definition of “fair use” established back in the Copyright Act of 1976? It seems like a lot has changed since the era of Shaun Cassidy and Schoolhouse Rock. Has the concept of fair use aged that gracefully?

Courts look at fair-use matters on a case-by-case basis and by applying a number of criteria to the fair-use dispute before them. They look beyond the four corners of the Copyright Act and utilize a number of criteria to analyze the use in each particular case. This keeps the application of fair use as a doctrine pretty nimble, and there are a few cases that apply the criteria to social-media issues. So I'd argue that the criteria and their application aren't limited to art as expressed in 1976 — and that they are flexible enough to examine new forms of art/expression.

In addition, the idea of fair use and artists building upon the backs of other artists to allow for the flow of new expression and ideas is an underlying theme to the Copyright Act. The entire doctrine of fair use comes out of that concept, which I don't think has really faced a fundamental change recently. That concept seems pretty American; it expresses the tension between capitalism and protecting the value of an artist's work and allowing for a marketplace of ideas.

What are the penalties for defamation? In other words, why should the creative class be concerned about this at all?

Let's put it this way: Can the majority in the creative class withstand the expenses of defending against a defamation case? Litigation can easily reach $100,000 per party, before damages (penalties) are assessed. Plus, in order to prevail on a defamation case, there needs to be a showing of actual damage (with certain exceptions). If there is proof to show that there was damage, that’s likely to be substantial — because we're usually talking about damage to livelihoods and future abilities for the plaintiff to market themselves. Then, on top of those costs, a defendant might also face punitive damages if they acted in a reckless manner.

In a deeply divisive era like the one we're living through now, is political parody even more important? And then the followup: And is it more risky, at the same time?

I, personally, think the voice of artists is hugely important in these times. I keep waiting for a resurgence of the protest rock/folk genre. Art unifies voices and amplifies emotion; it prompts thought and helps crystalize vision. Maybe Facebook and Twitter have taken over that role in today's society — I don't know. At the same time, I understand that it feels risky to speak out right now. The political atmosphere in America seems, to many, to be teetering on the edge of fascist-feeling attempts at censorship. Avant-garde expression didn't really fare too well in WWII Germany, if I recall history. Perhaps that is even more reason to be bold?

What about the Colorado arts and entertainment scene makes this an important issue to cover now? What’s the state of Colorado's creative scene?

From my perspective, I see persistent issues around housing for artists and inclusivity in arts programs. It's a complicated issue, and I'm not expressly involved in trying to solve the problem, so I won't say much more than that. The way it ties in, I think, is that we, as community members, in the face of the political environment of the day, can be intentional about whose voice we are amplifying. Are we valuing diversity, inclusion and disruptive voices, or are we valuing the status quo?

Join attorney Caroline Kert at the Boulder Digital Arts Happy Hour at 5 p.m. Tuesday, February 26, at BDA at 1600 Range Street in Boulder. The event is free, but registration is required on the Boulder Digital Arts website.