Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
American legal history has featured many battles over “freedom of contract,” often interpreted as the “right” of workers to sell their labor at any price, on any terms. Given the recent resurgence of extreme freedom of contract views, I thought this reflection on the reality TV show “Here Comes Honey Boo Boo” might interest readers:
Americans, it turns out, can’t get enough of Honey Boo Boo, mom June, and the rest of the clan . . . some of whom come with nicknames that seem straight out of quaint novel about those colorful southerners, like Sugar Bear. That Here Comes Honey Boo Boo trafficked in and showcased the grossest of gross stereotypes about lower middle class southern white folk was deemed inconsequential. The family, led by matriarch June, was in on the joke. How could the family be exploited if they actively wanted to be exploited?
Well, something called dwarf tossing was once legal too. . . . [P]eople defended it in the usual ways. The little people are okay with it. They have a hard time getting jobs, so why not stuff them in padded suits and toss them at padded walls? It’s funny and no one is getting hurt. It’s a paying gig, right? Well, after a few years of this, most of us agreed that dwarf tossing was not so humorous, and states like New York and Florida moved to ban the popular nightclub stunt attraction.
Although the symbolic violence done to identity here is not as objectionable as real violence, it is deeply troubling and (to use an old-fashioned word) dishonorable. A libertarian may instead focus on “the lack of coercion and the pleasures of participation” in reality TV, as Mark Andrejevic observes. But Andrejevic also notes that our discomfort with exploitation has deeper roots, and broader moral bases, than utilitarian or libertarian systems focused on pleasure and coercion:
The fact of exploitation need not prevent workers from taking pleasure in their craft or in the success of a collaborative effort well done. Nor is it the case that accounts of exploitation necessarily denigrate the activities or the meanings they may have for those who participate in them rather than the social relations that underwrite expropriation and alienation. The point of a critique of exploitation is neither to disparage the pleasures of workers nor the value of the tasks being undertaken.
Instead, the critique of exploitation is just an effort to push back on the “naturalness” of the choices offered to marginalized groups. As Helaine Olen observes, “Here Comes Honey Boo Boo is an unintentional reality show documentary demonstrating what happens when the jobs go away, and there is little way to make an honest living.” The rumored $4,000-per-episode payments are far better than the minimum wage jobs common on the “wrong side of the tracks.” But why are the alternatives so poor? If the owners of capital were barely getting by, we could better accept a world where decently-paying work is disappearing. But study after study demonstrate that is not the case. The “tough choices” are made, not found; they’re the result of decades of policy.
Fighting against that policy can seem as hopeless a task as, say, becoming a celebrity. But at least in the latter case, “the experience” seems more fun, as Andrejevic noted in his 2004 book on reality TV:
Not everyone in a reality game show is able to win the grand prize-and for those who don’t, there is no guarantee that they will be able to work their way into the fringes of the entertainment industry through advertising or cameo appearances. For example, for those in the Big Brother house who don’t make it, the payment will be much less than the minimum wage: about $2 per hour for their time spent in the house.
But there is, at least according to the houseguests [in Big Brother], the possibility of having had an experience that was, as several of them put it over the course of the series, “priceless.” . . . Underlying this euphoric rhetoric of experience is the equation of surveillance with self-fulfillment: that being watched all the time serves to intensify one’s experiences, and thereby to facilitate self-growth and self-knowledge.
I’ve watched neither Big Brother nor Here Comes Honey Boo Boo, so I can’t judge whether the “self-fulfillment via surveillance” narrative works in either context. But I do think it’s time for a sober second look at the vogue of outsider-as-entertainment. However morally complex the marketization of human lives may be, some “free exchanges” are far less free than they appear on their face.