This is a horrific outcome and the backlash of criticism has been entirely justified - but it has also, I think, been fairly incoherent. For example, Jessica Kickman at SheKnows writes:
This case is admittedly very complicated. The judge technically made the right call in upholding the contract laws of the state. Unfortunately, that doesn't mean that it was morally the correct decision in this case.Madelaine Davies, writing for Jezebel, seems similarly conflicted:
Commercially reasonable, yes. Contracts were signed. Kesha entered into a legal agreement with Sony and Kemosabe...The ruling is so cruel as to seem almost mythological—Persephone stuck in hell as the result of a bad contract—but it’s not; the ruling is real.From all of this, it would seem to follow directly that the law itself is immoral. If we expect a judge to enforce the law, but she cannot do so without inflicting a profound injustice on Kesha, then the law itself should be changed. Alternatively, you could insist that while this particular outcome is unfortunate, this law is justified and needs to be enforced consistently - but that is an argument that the ruling was not immoral and that the greater good has prevailed, a conclusion that most people with a conscience will understandably find unacceptable.
The problem here is that Kesha's advocates can't decide whether they want to defend feminism or liberal capitalism.
The sanctity of contract has always been a foundational doctrine of liberal capitalism. You can do society without it - for example, you can subject contract enforcement to the pure discretion of a judge or a jury - but you can't do capitalism without it. As Milton Friedman put it,
Government...should enforce contracts between individuals...When government - in pursuit of good intentions tries to rearrange the economy, legislate morality, or help special interests, the cost comes in inefficiency, lack of motivation, and loss of freedom. Government should be a referee, not an active player.Ask a capitalist why contracts are so important and they'll give you all kinds of rationalizations, but the actual function is simple: capitalism needs to perpetrate all kinds of injustices to survive, and contracts give it legal cover to do so. Kesha is a particularly vivid example of how this disproportionately impacts women, but the damage is far more widespread. For example, so-called "right-to-work" laws - which justify themselves as a defense of the freedom to contract - drive down women's wages by 4.4%, compared with 1.7% for men. Incidentally, these same laws are also a serious barrier to workplace discrimination and harassment claims, a problem that also, of course, disproportionately affects women.
If you are a feminist, the liberal capitalist contract fetish confronts you with three options.
Historically, the left's response has been to realize that capitalism is deeply implicated in the oppression of women, and to tie the feminist agenda to the broader fight for socialism. When a radical feminist encounters a case like Kesha's, her answer is straightforward: we cannot privilege the sanctity of contract at the expense of women. Judges and juries should be empowered to simply nullify contracts in cases like this, and if capitalists don't like it, they should stop raping women and giving the courts reasons to nullify contracts.
Alternatively, if you don't want to challenge capitalism, you can leave women at the mercy of wishful thinking, as Kickman does:
Sony should have...offered her a new, better producer and assured her that she was still going to receive the same publicity and promotion throughout her career despite the producer shift...Sony, we're watching. And, for women everywhere, we hope you do the right thing.Or third, like Davies, you can resign yourself to empty fatalism:
It’s likely that “commercially reasonable” will almost always beat or “ethically reasonable” and is certain to beat “morally reasonable”...When a woman as powerful and high status as Kesha can’t win, the rest of us stand even less of a chance.I see no other way around this. Particularly over the past several months, liberal feminists have spent a lot of time excrociating the left for being too focused on economic issues and inadequately focused on the plight of women. Kesha's case demonstrates quite clearly why we can't bracket those issues off from each other, but as long as liberal capitalists keep doing so, this kind of thing is going to continue.