Asian-Pacific American Heritage

Stephen began writing about Asian-American legal history after hearing about an 1850s murder case that resulted in an infamous opinion by the California Supreme Court. Stephen went through California archives to learn more about what happened in the case, and his article about the case has been used in law-school classes. In 2023, he wrote a monthlong series of articles about Asian-American legal history, some of which are below.

Stephen is currently the second vice president of the Asian American Bar Association of Greater Chicago. He also has been involved with many events, including starting a tradition of taking a photo of Asian-American attorneys who have served in the government at the National Asian Pacific American Bar Association’s annual convention.

Stephen Lee Stephen Lee

Notes on “Yellow Face” by David Henry Hwang

Notes on the reality behind David Henry Hwang’s “Yellow Face,” including a discussion of the law concerning casting decisions, Henry Hwang’s bank, and the Wen Ho Lee case.

Photo from the 2024 producton of Yellow Face, with Ryan Eggold, Marina Anderson, Daniel Dae Kim, and Kevin Del Aguila.  Photo by Joan Marcus.

If you have seen David Henry Hwang’s excellent play Yellow Face (or listened to it on Audible), you may have questions about what is real and what is fictionalized.  I did!  Here are some notes and commentary about the play’s real-life context, including employment discrimination laws, selective prosecution arguments, and a high-profile case against an Asian-American scientist.

“Face Value”

Let’s start with the easy stuff. 

David Henry Hwang did write a play called “Face Value,” and it did have a very short run in Boston in early 1993.  But the show did not inadvertently cast a white man as an Asian character.  The lead Asian-American male part was initially played by an Asian-American actor, Dennis Dun (probably best known for Big Trouble in Little China), and then played by B.D. Wong, according to my review of press reports at the time.

The lead of the play, at least according to my review of press reports, was Mark Linn-Baker, who is probably best known for the 1980s sitcom Perfect Strangers.  He played the white actor who was playing Fu Manchu, the fictional Chinese criminal mastermind created by author Arthur Ward aka Sax Rohmer.

And Jane Krakowski and Gina Torres were indeed part of the cast.

Casting Decisions Based on Race

The play Yellow Face takes place in and around the 1990s.  And during the 1990s, the law was not clear as to whether casting decisions could take race into account. 

Generally speaking, federal anti-discrimination laws do prevent employers from considering race in making hiring decisions.  As a result, some thought that you could not consider race in making casting decisions, though you could consider physical appearance.  Basically, you could look for actors who looked like they were of a particular race, but you had to be open to actors who were not actually of that race.

This view got tested in 2012, when two black men who unsuccessfully applied to be the “Bachelor” in 2011 brought a lawsuit alleging employment discrimination because all the Bachelors and Bachelorettes as of that time had been white.  A federal court noted that the lawsuit sought to “support the social acceptance of interracial relationships, to eradicate outdated racial taboos, and to encourage television networks not to perpetuate outdated racial stereotypes,” and the court noted that this cause was “laudable.”

Even so, the court dismissed the lawsuit because the First Amendment protected casting decisions that might violate anti-discrimination laws in other contexts.  The court found that casting decisions were “part and parcel of the creative process behind a television program” and thus merited First Amendment protection.

“Whatever messages The Bachelor and The Bachelorette communicate or are intended to communicate – whether explicitly, implicitly, intentionally, or otherwise – the First Amendment protects the right of the producers of [the shows] to craft and control those messages,” the court wrote.

The court also noted that applying federal anti-discrimination laws to casting decisions would have far-reaching consequences.  “Would applying anti-discrimination laws require a playwright to consider white actors to paly Othello, black actors to play Macbeth, or a male to play Lady MacBeth?  For that matter, could a dramatist face civil liability for staging an all-female version of Romeo & Juliet?” The court’s ruling avoided those consequences.

The reasoning from the Bachelor case was applied more recently in a lawsuit involving the Hadestown musical.  In 2023, a black woman who was a member of the chorus in Hadestown sued after she was terminated and replaced by a white actress.  At the time, all of the members of the chorus were black, while the actors who played Orpheus and Hades were white, and Hadestown officials were concerned that the casting resulted in the show being an “unintended and harmful ‘white savior’ story.” 

Following the reasoning of the Bachelor case, the court found in 2024 that the Hadestown casting decisions were protected by the First Amendment.  

As a result, much of Yellow Face’s plot makes sense for how the law was interpreted in the 1990s and early 2000s, but it does not depict how the law is generally interpreted today for casting decisions.

Henry Hwang and Wen Ho Lee

Much of Yellow Face focuses on two investigations of Asian Americans that were publicized in early 1999 – suggestions that Wen Ho Lee had passed nuclear secrets to China and suggestions that the bank founded by David Henry Hwang’s father had been used to bring Chinese money into the United States.

Both cases raise concerns about whether Lee and Hwang were improperly targeted because of their race or national origin.  Lee was born in Taiwan, studied in the United States, and became a U.S. citizen in 1974, and had worked at Los Alamos National Laboratory for 20 years when he was fired and prosecuted.  Hwang was born in Shanghai and came to the United States when he was 21 years old.

Legally, courts have recognized that a defendant could challenge a criminal case if they can show that the case was based on improper “selective prosecution,” but making such arguments is very difficult.  Generally, a defendant must show that people who are similar to him have not been prosecuted and that his prosecution was based on an impermissible motive such as racial prejudice.  This is very difficult to prove, and defendants often have difficulty even getting enough information from the government to try making these arguments.

As discussed below, Wen Ho Lee made such an argument on his behalf, and a judge’s willingness to consider this argument may have played a part in how the case got resolved (see more below).

Henry Hwang and Far East National Bank

In real life, the allegations against Henry Hwang did not go very far, apparently because the federal investigation of Far East National Bank was already closed by the time that it became public.

On May 12, 1999, the New York Times did publish a front-page article about Far East National Bank:  China Sent Cash to U.S. Bank, With Suspicions Slow To Rise.  But the article’s allegations are confusing and weak, no clear accusations are made against the bank or Hwang, and the news value of the story is debatable.

According to the article, U.S. bank regulators conducted an investigation of Far East National Bank relating to $92 million coming from sources connected to China.  Regulators began the investigation in July 1996 and completed the investigation in the spring of 1997.  “No charges were brought, and no regulatory actions taken.” 

There were suspicions and theories about the $92 million, but not much in terms of evidence.  According to the article, “the purpose of the money remains a mystery.”  The article cites some people who “suspect” that the money might have been used to pay for Chinese intelligence operations, or political contributions, or to buy military technology, but acknowledges that “officials do not rule out that it could be related to legitimate business dealings.”

Henry Hwang did agree to an interview with the New York Times, and the article says that he denied any wrongdoing in the bank’s handling of the money.  The article then says that he “declined to explain where the $92 million had come from or how they managed it, citing client confidentiality.”

The article insinuates that Hwang should have cleared up where the bank’s clients’ money came from.  But if he had told this to reporters, that likely would have violated bank privacy regulations.

In any event, it does not appear that federal regulators or law-enforcement re-opened their investigations or took any further action based on the article.

More broadly, there were some concerns in the 1990s of Chinese money entering the United States and potentially influencing elections.  When the New York Times published its article about Far East National Bank on May 12, 1999, the article was next to another article that had more definitive news value.  Johnny Chung, a Democratic fundraiser, had pled guilty to charges in connection with illegal campaign contributions and had testified that he had been given money by a Chinese official to use for political contributions.

Many of the quotes used in Yellow Face relate to concerns about campaign fund-raising, were not specific to Henry Hwang or Far East National Bank, and occurred prior to the publication of the article about Far East National Bank in 1999.

United States v. Wen Ho Lee

The case about Wen Ho Lee is very complicated, but here are a few points for context.

First, the government initiated its investigation based on concerns that someone had provided information about a nuclear warhead to China in the 1980s, but it was not clear whether someone actually had.  Investigators came to suspect Wen Ho Lee in part because he had been working at Los Alamos National Laboratory in the 1980s (where and when a leak was believed to have occurred), because of his connections to China, and because he had been briefly connected to another suspect in the early 1980s.

Second, news organizations did report that Wen Ho Lee was suspected of espionage months before he was charged with any crimes.  The Wall Street Journal was the first to report on the investigation in January 1999.  The New York Times published a detailed article on March 6 but did not identify Wen Ho Lee’s name.  After he was fired, news organizations began reporting his name, with the New York Times doing so on March 9.  This caused massive condemnation and scrutiny of Wen Ho Lee even though he was not charged and arrested until December 1999, months later.

Third, even though the concerns initiating the investigation were about espionage in the 1980s, Wen Ho Lee was charged with his handling of data on tapes in 1993 and 1994, years later.  Wen Ho Lee has said that he destroyed the tapes, but much of the case revolved around the government’s suspicions that the tapes still existed.

Fourth, Wen Ho Lee was detained and held in solitary confinement largely because of concerns about the tapes.  Judge James Parker ordered Lee detained in December 1999 largely because of concerns that Lee might “reveal to unauthorized persons the location of the seven missing tapes or to assist an unauthorized possessor in understanding and utilizing the information contained in the tapes.”  

Fifth, the case against Wen Ho Lee started to collapse over the course of the next few months, and Judge Parker made several rulings in August 2000 that probably had serious problems for the government’s case.

  • On August 23, Parker issued an order allowing Wen Ho Lee to use some classified information in his defense.  For example, Lee could use some information to show that the data at issue was not sensitive or as important as the government had indicated, which would help undercut the government’s arguments about criminal intent.

  • On August 25, Parker issued an order showing that he was seriously considering Wen Ho Lee’s “selective prosecution” argument.  Parker specifically ordered the government to provide the Court with information that might support Lee’s “selective prosecution” argument.

  • And on August 31, Parker wrote that he now saw a “tableau different from what was described by the government last December.”  The picture of Wen Ho Lee had looked “extremely dark” in December 1999, but Parker had reviewed more information and now saw it as a “somewhat mottled shade of gray.”  The evidence of wrongful intent appeared much weaker, the data’s significance was arguably much less, one important statement that an FBI agent had attributed to Wen Ho Lee turned out to have been misquoted, and the danger posed by Wen Ho Lee’s release was much weaker.  As a result, Parker ordered that Lee be released from jail.

All in total, these rulings probably weakened the government’s case significantly.  The government and Wen Ho Lee quickly worked out a deal under which Wen Ho Lee pled guilty to one count of mishandling data and agreed to cooperate with the government’s investigations regarding the tapes which he said he had already destroyed.  He was then released.

After the criminal case was done, Wen Ho Lee proceeded with a lawsuit against the federal government and several news media organizations based on the leaks in early 1999 about his case.  Ultimately, several reporters were held in contempt for not revealing the sources for their articles.  The reporter who appears to be the basis for the reporter in Yellow Face was initially held in contempt, but that was vacated upon appeal.  In 2006, the case was settled for $1.65 million by the federal government, the New York Times, the Associated Press, the Washington Post, the Los Angeles Times, and ABC News.

Hope you found this useful! Please contact me if you have questions or would like to discuss.

Sources:  Here are some of the sources I consulted.

The Roundabout Theatre also has some notes about the facts in the play at https://www.roundabouttheatre.org/get-tickets/upstage-guides-current/yellow-face/the-facts-in-the-fiction/

 

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