The law of New York and many other jurisdictions prohibits employment discrimination based on national origin. Anna Netrebko's firing would seem on its face illegal. Had she been born in the Donbas region of Ukraine instead of across the border in Russia, she would not have been fired even if she had refused to condemn the war or Putin. Pictured: Netrebko on February 21, 2020. (Photo by Christoph de Barry/AFP via Getty Images)
I had planned to see the Metropolitan Opera's production of Turandot staring Anna Netrebko. But the Met fired her on the ground that she is Russian and did not sufficiently condemn Vladimir Putin for waging war in Ukraine. She did condemn the war, but refused to condemn Putin personally. If she had, she would be endangering her family, friends and her own ability to ever return safely to her homeland. Netrebko is an Austrian citizen, but her country of origin is Russia.
The law of New York and many other jurisdictions prohibits employment discrimination based on national origin. Her firing would seem on its face illegal. Had she been born in the Donbas region of Ukraine instead of across the border in Russia, she would not have been fired even if she had refused to condemn the war or Putin. She would not have been asked her political views. But because she was born in Russia, her associations before the war with the leader of that country -- she says she met him "only a handful of times" -- were scrutinized, and she was required to take a disloyalty oath condemning him.
Here is what she said:
"I am opposed to this senseless war of aggression, and I am calling on Russia to end this war right now, to save all of us. We need peace right now."
She also wrote:
"I expressly condemn the war against Ukraine and my thoughts are with the victims of this war and their families."
But she refused to go further, insisting that:
"Forcing artists, or any public figure, to voice their political opinions in public and to denounce their homeland is not right.... I am not a political person.... I am an artist and my purpose is to unite people across political divides."
Netrebko's problem is that before the war, she did express political views: she supported Putin and pro-Russian Ukrainian separatists, though she has now expressed "regret that past statements of mine could have been misinterpreted."
Despite her rather tepid apology, Netrebko has lost work in Russia and is widely condemned by fellow Russians as a traitor during time of war. As Simon Morrison, a Princeton music professor aptly put it: "She's damned if she does, and damned if she doesn't."
Not every artist born in Russia can be expected to demonstrate the courage of my friend Evgeny Kissin, the great pianist, who did denounce Putin, the war, and the Russian Government. He will probably never set foot in his birthplace — certainly not as long as Putin is in charge.
I agree with Netrebko that artists should not be required to express political views if they choose not to. Her case is a bit more complex because she chose to support Putin and pro-Russian separatists in the past, thus thrusting herself, even if only slightly, in contentious political issues. The lesson that other musicians will learn from Netrebko's dilemma is to use their voices to sing and not to take political positions that may come back to haunt them. It is a mixed lesson because we want artists to speak out — when we agree with what they are saying. But in this age of quickly changing criteria for cancellation, prudent artists will decline to express any potentially controversial views. It is too late for Netrebko to erase her pre-war statements, so her cancellation by some organizations will probably persist, at least until the war is over.
Nonetheless, the Metropolitan Opera's decision to fire her, at least in part, because of her national origin, may put my beloved opera company on the wrong side of anti-discrimination law. Her views would probably not have become the subject of political scrutiny if not for her national origin. And that may be enough to violate the anti-discrimination rules.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Case for Color-Blind Equality in an Age of Identity Politics. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of "The Dershow," on Rumble.