A Playwright Reflects on Good Trouble and Public Wickedness

Well, this got my attention:
 
“In 1665, actors put on the first play in colonial America and were immediately arrested for public wickedness.” 
 
If we are seeking relevant antecedents for modern times, we turn to this era at our peril. It was the era of, well, colonization.  Colonization, enslavement, and genocide.
 
Still, I was intrigued.  Was this because theatre was prohibited?  In the Massachusetts colonies, we know that theatre, dancing, cockfighting, boxing, and other entertainments were banned as “forms of levity and mirth [that lead] easily to sin.”  But this incident occurred in Pungoteague, Virginia—in a tavern, no less. Unlike Massachusetts, which was colonized by Pilgrims and Puritans, the Virginia colony had been established by a joint-stock company chartered by King James I. Whether or not capitalist imperialism constitutes a form of cult is the subject for another blog, but, in any event, Pungoteague was not Puritan.
 
Yes, theatres across the Pond had been officially closed and mostly silent during two civil wars and the period of rule by Oliver Cromwell, but, by 1660, the Restoration was on and English theatres were opening up again. In fact, they were an integral part of the process of re-establishing the hereditary monarchy.

Well, then, was it an issue of petty grievances?  Were the actors locked up at the behest of a powerful neighbor who had some kind of beef with them—a boundary dispute or a wandering spouse? Certainly, up north, the courts were not above arresting local scapegoats—mostly female—accusing them of witchcraft, and then hanging them.
 
But here’s the thing…  The itinerant judge for Accomack County requested a re-enactment of the play at the hearing, which—there being no official courthouse yet—was held at Fowkes Tavern, conveniently the site of the alleged crime.  The judge, obviously a connoisseur, even specified that the defendants were to show up in “those habilments that they then acted in.”  This would indicate that the actual content of the play was at issue. In other words, the trial was to determine whether or not the performance contained material that constituted “public wickedness.”
 
Well, did it?

The records of the case are scanty, but we do know the title of the work: Ye Beare and Ye Cubb, aka The Bear and the Cub. Remember this is during the colonial era, about a century before the Revolution. What came to be known as the British Commonwealth, upon which “the sun never sets,” was just getting started. “Mother England” had colonies in Connecticut, Massachusetts, Rhode Island, New Hampshire, New York, the Carolinas, New Jersey, Pennsylvania, and—the original one—Virginia. 
 
Scholars have speculated that this bear-and-cub thing was a metaphor for the Virginia colony’s relationship to England. One such scholar, Joel Eis, relates the play to the tensions between an upper class still loyal to England and a rising middle-class of merchants who were angry about restrictions that the king had placed on international tobacco trade—tobacco being Virginia’s cash crop.  Further, Eis has located a number of pamphlets and speeches from the 1660’s that employ similar “parent-progeny” analogies to criticize England’s patronizing relationship to its colonies.
 
The specific charge “public wickedness” adds credence to this theory. What exactly is “public wickedness?”  Apparently, it was a colorful term for blasphemy, which, according to my dictionary app, is “the act or offense of speaking sacrilegiously about God or sacred things.”  And there is rub:  Sacred things.  Like Mother England…? Like King Charles II…? 

Public wickedness is a concept that is very much still with us today. It has undergone a number of permutations across the centuries. By 1735, for example, it had become “seditious libel.”  Under English law, it was a criminal offense to publish or otherwise make statements intended to criticize or provoke dissatisfaction with the government. Ironically, truth was not a defense and, in fact, made the offense worse. English libel law spelled it out: “The greater the truth, the greater the libel.” Who knew?
 
This law was tested in the colonies in the 1735 trial of a printer named John Peter Zenger. He put out a weekly journal that routinely roasted the governor of New York… and, remember, in the colonial era, this governor would have been appointed, not elected. Not surprisingly, the governor hand-picked the two judges to evaluate the allegedly libelous material, and, also not surprisingly, they found in his favor. The jury, however, was of a different mind. At the urging of none other than Alexander Hamilton, they defied the judges and acquitted Zenger.
 
Then there were two brief decades following the Revolution when the young United States apparently let public wickedness run rampant, but by 1798, Congress passed four laws known as the Alien and Sedition Acts. The Sedition Act made it a crime to publish “any false, scandalous and malicious writing” about the government or its officials.
 
It was, needless to say, not a popular law, and it expired when John Adams left office in 1801. After this, public wickedness had an astounding century-plus-long run before another sedition law was instituted. This happened in 1918, to amend an espionage act that was passed the previous year.

These laws were responses to concerns raised by the Great War. The Sedition Act came hard for public wickedness, imposing “a fine of not more than $10,000 or imprisonment for not more than twenty years, or both” on anyone who dared “utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.” It was repealed three years later, but not before legendary trade-union activist Eugene Debs had been sentenced to ten years in prison.
 
The Sedition Act of 1918 was repealed in 1920, although many parts of the original Espionage Act still remain in force. In fact, the charge leveled against controversial whistleblower Edward Snowden was a violation of two counts of the 1917 Espionage Act.
 
Anyway…  there was another world war and another sedition law. This one was called the Smith Act, and it was passed in 1940, making it a criminal offense to advocate the violent overthrow of the government or to organize or be a member of any group or society devoted to such advocacy. 

During the notorious witch-hunts of the 1950’s, the Smith Act was applied broadly to members of the Communist Party, to labor union activists, and folks rumored to be gay or lesbian. In 1957, we the people said, "Enough is enough," and the act was amended to limit its application. Now, under the Smith Act, the prosecutor bears a considerably greater burden of proof, because they must prove “beyond reasonable doubt” active participation in or verbal encouragement of specific insurrectionary acts.  In other words, no more prosecutions based on sexual orientation, membership in trade unions or civil rights organizations, and so on.

The Smith Act, even in its worst iteration, did establish an important precedent. Because it was federal law, it has been used to nullify various sedition acts passed by individual states. Some of these have been profoundly arbitrary, vague, and even draconian. Good riddance.
 
Well, we have certainly wandered far afield of Fowke’s Tavern and Pungoteague…
 
The playwrights and actors had their day on December 18, 1665. The judges failed to see the public wickedness alleged by the plaintiff, and, in fact, the plaintiff didn’t even bother to show up.  All charges were dismissed and the plaintiff was ordered to pay everyone’s court costs. And thus ends the historic record of the first English-language play performed on these shores.

But I worry about public wickedness. I do. I’m a playwright--an American playwright--and my cultural lineage absolutely traces back to Ye Beare and Ye Cubb.
 
I am not afraid of violating the Smith Act. I am afraid of violating something far hazier, far more pervasive, more pernicious, and, ironically, something that appears increasingly to be itself approaching violation of the Smith Act. 
 
I am talking about the stream of executive orders of the current regime. I’m talking about executive orders that:

No, none of these tell me what I can and can’t write. But they certainly tell me what I can expect if I promote diversity, equity, and inclusion. I can expect to be banned from production contracts, from performing, from teaching, from lecturing, and from a very broad range of funding sources.
 
So, what exactly constitutes “promoting DEI?” Writing a play that features a disabled character? A character of color? That centers women’s rights, or lack thereof?  At what point does race-specific casting fall under promoting inclusion? Or, open-casting, for that matter? I tend to write about historical themes. What if history itself promotes DEI—and what history doesn’t?  
 
I have to second-guess what this means, or else go with “better-safe-than-sorry” themes, which, by process of elimination, appear to be narratives focused solely on white, heterosexual, able-bodied, middle-class, male heroes and their struggles.

Well... I do have another choice. I can opt for public wickedness. My heritage. My birthright. And when I ask myself what "public wickedness" means in today’s theatre, I hear the admonition of longtime civil rights activist and Georgia Representative John R. Lewis:
 
“Do not get lost in a sea of despair. Be hopeful, be optimistic. Our struggle is not the struggle of a day, a week, a month, or a year, it is the struggle of a lifetime. Never, ever be afraid to make some noise and get in good trouble, necessary trouble.”
 
Public wickedness is good trouble, necessary trouble. And it’s also something else. It’s a duty.
 
Not to put too fine a point on it… Here are the  words of Dr. Toni Morrison, and, make no mistake, she is talking about healing:

“Certain kinds of trauma visited on peoples are so deep, so cruel, that unlike money, unlike vengeance, even unlike justice, or rights, or the goodwill of others, only writers can translate such trauma and turn sorrow into meaning, sharpening the moral imagination.

A writer’s life and work are not a gift to mankind; they are its necessity.”

Amen.