South by Southwest® Conference and Festivals, known by its more familiar title SXSW®, recently received intense backlash over two clauses in its contract with artists who perform at the festival. The first clause states: “If SXSW determines, in its sole discretion, that Artist or its representatives have acted in ways that adversely impacts the viability of Artist’s official SXSW showcase … SXSW will notify the appropriate U.S. immigration authorities of the above actions.” The second clause dictates that “international artists entering the country through the Visa Waiver Program (VWP), B visa, or any non-work visa” are forbidden from performing at unofficial events, as performing at such events “may result in immediate deportation, revoked passport and denied entry by U.S. Customs Border Patrol at U.S. ports of entry.”
After one performer publicized the provisions of his contract, protests arose over what many protesters dubbed SXSW’s “anti-immigrant” policies. After days of protests, including an open letter by several musicians set to perform at SXSW and at least one performer canceling his appearance at the festival, SXSW officials made a statement vowing to review the contract terms for future events beginning in 2018.
The uproar surrounding the contract provisions, which has been part of SXSW’s standard contract without controversy for several years prior to 2017, comes as no surprise given the currently charged climate surrounding immigration.
On its face, SXSW’s contract provisions are not illegal or improper. Any international performing artist is required to enter the United States on any of the visas enumerated in the contract. An artist entering under any of the specified visas may only perform for the specific purpose identified in the visa. Thus, an artist entering the United States for the purpose of performing at SXSW is not permitted to perform at other unofficial events without violating the visa. As accurately stated by the contract, violation of the visa may result in “deportation, revoked passport and denied entry by the U.S. Customs Border Patrol.” Moreover, regardless of the visa’s stated purpose, any artist who commits a crime, such as assault, may be subject to scrutiny and possible deportation by the U.S. Immigration and Customs Enforcement, more familiarly known as ICE.
Unfortunately, the contract is vague with respect to these terms. For instance, while SXSW officials noted that calling ICE would only result where an artist “does something truly egregious, such as disobeying our rules about pyrotechnics on stage, starting a brawl in a club, or causing safety issues,” nowhere in the contract does it state this fact. Instead, the contract vaguely covers actions that “adversely impact the viability” of the artist’s showcase. Moreover, the contract does not clarify that the provisions derive from U.S. immigration law, and not its own personal discretionary policy regarding international artists. As a result, the contract creates confusion regarding the specific conditions SXSW authorities are obligated to call ICE, as well as the basis for having to do so.
Given the contentious topics surrounding immigration in the past few months, the controversy over SXSW’s contract will likely be one of many to come. Accordingly, businesses who frequently interact with and host individuals outside the United States should take a second look at how immigration clauses are framed within their contracts to ensure that the provisions are clearly written. By reviewing and appropriately revising such provisions, businesses will be better able to clarify their immigration policies and avoid similar backlash.