Category: Other Controversies

Debates and Conversations in the Public Square

The George Carlin Deepfake: Comedy in the AI Crosshairs?

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The Artificial Intelligence (AI) crisis across the creative industries apparently shows no signs of slowing down anytime soon and now comedy seems to have been thrown into the mix of its hapless targets. Only this time comedy appears to have won the opening battle in its own war with AI, at least going by the lawsuit that has been in the news lately.   The said lawsuit was the one filed by the estate of the late comedy legend George Carlin, who died in 2008, against two podcasters for their offending use of AI in the violation of his publicity rights and for copyright infringement.   

In the case under discussion, the two podcasters Will Sasso and Chad Kultgen, used “deepfake” technology (which performs a digital imitation of real people) to create an AI character named Dudesy, who mimicked Carlin in a faked comedy special titled “Geroge Carlin: I’m Glad I’m Dead,” which was then posted on YouTube in January 2024. Shortly after the lawsuit was filed by Carlin’s estate in federal court in California, the case was settled on April 1, 2024, with the podcasters agreeing to permanently delete the material from the Internet and to refrain from using his image, voice, or likeness without the appropriate permissions. As of the filing date of the lawsuit, the offending audio routine had garnered more than half a million views on YouTube.

To be sure, the heightened interest of the Carlin estate in the Dudesy comedy special here was entirely predictable. In the recent book “Comedy Goes to Court: When People Stop Laughing and Start Fighting” at chapter Six, (available on Amazon), the author uses the separate cases of the comedian Louis CK and The Three Stooges, to illustrate how the fame of any successful entertainer could continue to generate the “gravy” from any number of sources, including the commercial use of the person’s very name, voice, likeness, and more, even long after the person is no longer alive, in which case the late entertainer’s family or whoever controls their estate takes custody of the copyright to this valuable property interest. Given this, it should not require much imagination to see why the Carlin estate would be quite opposed to the unauthorized Dudesy comedy special, both from a financial point of view or otherwise.      

More broadly, and aside from the concrete concerns of the Carlin estate, the use of deepfake technology in this manner throws into sharp relief the nightmare scenario faced by people in creative industries, including actors, singers, comedians and more, who worry about being displaced from their jobs by AI products in a substitution sort of arrangement that renders them unemployed.  (Recall, for instance, the long SAG-AFTRA strike that ended last fall.)   

The question that then arises is how the newly evolving deepfake technology squares with the law regarding the protection of copyrights and other intellectual property products. In this regard, it bears noting that this sort of unauthorized imitation of a copyrighted product sits at the core of what the copyright law is designed to prevent. And since this imitation by Dudesy is apparently motivated by the commercial interest of the podcasters, it lacks the sort of excuse that could otherwise justify an invasion of someone’s else copyright, typically the “fair use” doctrine, which includes notions of de minimis, market substitution and the like. In the said Carlin audio, Dudesy the AI character explained that he had first “listened to all of George Carlin’s material and did my best to imitate his voice, cadence and attitude as well as the subject matter that I think would have interested him today.” Surely, this indicates that so much of the Carlins’ copyrighted product was taken in the training of the AI character.   

In a nutshell, what we have here with the Dudesy comedy special is a naked invasion of a protected copyright that carries with it a strong probability of unfair market substitution of the copyrighted product, not least because the unwary could be led to think they are getting an actual George Carlin comedy performance.

Also, accompanying the copyright violation in this case is the clear violation of the right of publicity which, as discussed in the book referenced above, is one of the important rights that fall into the estate of a deceased celebrity, and this right is of the sort that simply cannot be utilized by someone in the position of the podcasters without the permission of the copyright holder’s estate.   Long story short, this appears to be an open-and-shut case of copyright violation and publicity rights violation by the podcasters. No wonder the podcasters quit the fight early with a promise to be on their best behavior and not to re-offend. Good riddance, one might say.

So, what, if any, are the lessons here for the creative community? Short answer: AI can be checkmated by the copyright law when it goes too far in the imitation of protected works in comedy and other creative spaces. Same thing for invasion of publicity rights. The flip side here, though, is that not everything is protected by the copyright regime. Thus, AI being an evolving technology may yet find some less brazen way to infiltrate this protected territory and thus cause discomfort, especially if the pesky technology is being deployed not for a wholesale takeover or substitution of the protected material but rather as an aid in the process of creating something else inspired by it.

Yet, if or when that happens, the good news is that due to the increasingly observational and experience-based nature of contemporary comedy, a rather unique and even personal bond tends to develop between comedians and their audiences, a sort of dynamic in which the interposition of AI might be truly problematic. Apparently not so for comparable creative endeavors like movies and music where the odds of displacement by AI seem greater, and this is unfortunate.     

In the end, whether the just-repelled AI invasion of the comedy space will get a second life at some future date or occasion is the sort of question that only time will answer. For now, though, thanks to the Carlin estate lawsuit, comedy sure seems to have won a big victory worthy of a genuine celebration.   

Editor’s Note: The new book “Comedy Goes to Court: When People Stop Laughing and Start Fighting“, is now available on Amazon and at bookstores. Go get your own copy of the new bestselling book today and, of course, enjoy the read!

Jad Sleiman: Is the Ban on Comedy Moonlighters a Last Acceptable Prejudice?

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   Talk of expanding one’s career horizons and you might think of moonlighting as one of those harmless pursuits that people indulge in, sometimes for money, other times just for the hell of it. Except maybe when it comes to comedy, it seems.  Recently, we saw the case of journalist Jad Sleiman, who works for the NPR affiliate WHYY in Philadelphia, who was fired in January last year but later re-instated (thank goodness) after he won an arbitration proceeding against his employers; they were crossed with him over his moonlighting gig as a comedian. Sleiman’s troubles recall the case in fall 2013 of another comedian, Vince August, who was forced to give up his day job as a judge in South Hackensack, New Jersey after the bench and bar authorities in that state basically told him that moonlighting as a comedian was “incompatible” with the position of a judge.   

   To put moonlighting in perspective, we see in our daily experience people from all walks of life moonlighting in other areas outside their day jobs: lawyers, schoolteachers, doctors, therapists, personal trainers, politicos, you name it, can, say, work as actors, musicians, marathoners, athletes, corporate ad shills, or if they like cabbies, and not much dust is ever kicked up, even by the career purists in our midst who tend to take it as something being done in good fun.

  One can fairly suppose that if Messrs. Sleiman and August would have been moonlighting instead as marathon runners, actors, or musicians, they probably would not have attracted the same backlash from the journalism or legal communities respectively, as happened in their cases. And all this begs the question: what is it about comedy that gets people’s goats in this way?

        In Sleiman’s situation, his employers found footage of his stand-up comedy work on social media. The employers characterized the jokes as having “racial, sexual and misogynistic connotations,” and concluded that the radio station did not want to be associated with such sentiments and were thus letting their employee Sleiman go. The arbitrator, for his part, was not swayed by the arguments of the radio station and, after saying that he found some of the jokes funny and others not so funny, ordered the radio station to reinstate the employee to his job. He however ordered Sleiman to delete all his standup comedy jokes from his social media site. In Vince August’s case, what got him in trouble with the legal community were the jokes he made about religion, national origins, and children, which the authorities claimed might cause him to be biased against those folks if they appeared before him when he sits as a judge.        

  So, why this apparent prejudice and singling out of comedy as a no-go area for moonlighters, as our society gets its knickers in a twist? Perhaps, this attitude is a holdover from the last generation when comedy was not taken seriously as a career path, an era in which parents would discourage their kids from pursuing a career in comedy. But this would not be a good explanation today when comedy is considered by many to be at a “golden age,” having become a reliable and lucrative career path for those who succeed at it, just like anything else.  This means there has got to be a better explanation for the continuation of this apparent discomfort with comedy: more likely, it is because of the zeitgeist of contemporary society, which is characterized by political correctness and a desire to be woke in all things. At its core, the goal here is to protect the vulnerable from oppression by more powerful forces in society. And with comedians there is a worry that they tend to “punch down” at vulnerable people in society in rendering their jokes, thereby increasing the sense of oppression of these targets, whether it is Tracy Morgan against gay people, or Daniel Tosh against rape victims or Dave Chappelle against transgender people. (Incidentally, Chappelle says he likes “punching down”).

  However, for any society that stands ready and mentally prepared to drop its lingering prejudice against a specific group of its members, it should be possible for these concerns to be addressed by some appropriate devices that are already well-recognized and in use in our society. For example, in situations such as Sleiman’s own, where the offending jokes were posted on social media, a simple “disclaimer” statement, claiming the views as the comedian’s personal views, rather than those of his employers, ought to suffice, as we see every day with various professionals engaged in extracurricular activities. In August’s case, there is the old concept of the “Chinese wall”, which erects a barrier that separates any two things that are not supposed to meet. In his work, August seemed to adopt this method by opting to use a different name, Vince August, for his standup comedy work rather than the name he used as a judge, which was, obviously, his actual name in real life. In addition, he did not discuss his life as a judge during his comedy routines and vice versa.

  In the end, there is no disputing the noble instinct in sticking up for the vulnerable in our society, as our contemporary society seeks to do via political correctness and woke ideology. Similarly, it is quite healthy for our institutions, whether it be the media or the bench and bar, to not want to be associated with any continuing oppression of society’s marginalized groups. However, the existing situation with comedy moonlighting tends to make our society rather complicit in the oppression of yet another group, this time comedians. By refusing to acknowledge available and time-tested safeguards that should resolve our concerns, we may be unwittingly indulging what increasingly appears to be one of our society’s last acceptable prejudices. Therefore, it is well past time to also open the moonlighting gates to comedy. Just let Jad Sleiman and other comedy moonlighters be.

Editor’s Note: The new book “Comedy Goes to Court: When People Stop Laughing and Start Fighting“, is now available on Amazon and at bookstores. Go get your own copy of the new bestselling book today and, of course, enjoy the read!

The Hasan Minhaj Controversy: Attacking the messenger and ignoring the message?

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A recent article in The New Yorker by the reporter Clare Malone revealed that comedian Hasan Minhaj had lied about some of the events that he had recounted in his comedy work.  And this revelation has prompted a swift and brutal backlash. Yet, on closer examination, this may well be a case of the proverbial much ado about nothing resulting in a needless attack on the messenger of a rather noble message: social justice.

In the article, Minhaj admitted that the following were not true: that his young daughter was hospitalized for exposure to anthrax; that he had interacted with a certain FBI informant; and that a white female friend had turned down his high school prom invite at the last moment. These incidents were used to demonstrate the discrimination and marginalization he had endured as a Muslim of Indian descent living in America. And the stories themselves did appear in his various comedy works for Netflix and others, including “Homecoming King” (2017), “Patriot Act” (2018) and “The King’s Jester” (2022).

  While conceding that “lying is comedy isn’t always wrong,” Jason Zinoman, the influential New York Times critic-at-large asserted rather harshly that Minhaj had “crossed a line”.  Calling him “the boy who cried racist wolf,” MSNBC columnist Noor Noman, a Muslim Pakistani American, charged that Minhaj’s behavior by potentially stoking disbelief in future claims of oppression by marginalized groups had damaged the cause of social justice and aided white supremacy. Minhaj’s other critics have accused him of weaponizing his otherness in an unfair attack on other people. Defending Minhaj, however, comedian Whoopi Goldberg noted:  “There’s information that we will give you as comics that will have grains of truth, but don’t take it to the bank…that’s our job, a seed of truth. Sometimes truth and sometimes total BS.”

Of course, at issue here is whether it is permissible for a comedian to base the message of their material on a factual lie or untruth, not least because Minhaj is a comedian that is active in the social justice space.     

In his own defense, Minhaj said: “All my stand-up stories are based on events that happened to me,” he said. “I use the tools of stand-up comedy — hyperbole, changing names and locations, and compressing timelines — to tell entertaining stories. That’s inherent to the art form. You wouldn’t go to a haunted house and say, ‘Why are these people lying to me?’ The point is the ride. Stand-up is the same.”

Then he almost sabotages himself by introducing the complicating factor of “emotional truths”, a process whereby he utilizes his fictional stories to dramatize the travails of his marginalized community. This concept, though, does not seem like the best peg on which to hang his defense, given that, “emotional truth,” subjective, nebulous, and imprecise as it is, can fairly be said to provide a potential shield to anyone seeking to take liberties with factual accuracy in any given situation. Not a good look in his current circumstances.    

However, the good news for Minhaj is that based on comedy’s tradition, he is allowed to make stuff up as premises for his joke. Put differently, he is entitled to as much factual accuracy or truth as he chooses in making his point. (Even his adversaries concede that when it comes to the factual basis of a comedian’s joke, “lying” is not a deal breaker.) And for society at large, comedians stand on a different footing from other people with respect to the accuracy of their factual statements. In his Times opinion on the Minhaj controversy, Zinoman deals with this issue of trust as he references Minhaj’s past interview with Barack Obama in which the former president admits that he had consumed all the books, albums and movies featured on his annual “best-of” lists.

Rather instructively, Zinoman wrote: “To quote Minhaj, everything is built on trust. That trust operates differently for politicians and journalists than for artists, but it matters to us all. Treat it carelessly and the price can be steep.”  (emphasis supplied). Darn right, concerning the “trust” question, when Obama the politician makes factual statements while recommending a product or service, we put it on a different scale than when Minhaj the comedic artist is serving up factual premises for his joke. Context is pivotal here: surely, to expect or demand more accuracy from Obama’s factual claims than Minhaj’s is not to treat matters of trust carelessly.

Next, Minhaj’s critics seem to suggest that because he is dealing with social justice issues as a “trusted source” for political and social news, a paradigm shift is required with respect to the facts, one that requires that he adhere to factual accuracy. However, given that the more the merrier in the noble endeavor of social justice work, comedians are no less welcome as campaign partners than, say, lawyers or environmental activists, not least considering their large influence on our contemporary pop culture.  And it would be self-defeating for our society if we were to exclude the voices of people like Minhaj merely because, by virtue of their occupational background, they are not obligated to adhere to factual accuracy as rigorously as, say, a lawyer making a closing statement to a jury or a congresswoman participating in a budget debate on the deficit on the House floor.    

In the end, perhaps Minhaj’s comedy may not seem sufficiently ethical to his critics and, one must concede, he has been rather opportunistic in some of the paths he has taken to stardom, and this writer is no fan of some of his tactics.  Yet, even as he engages in his social justice advocacy, he is nonetheless allowed under comedy’s rules of the game to practice his own chosen brand of comedy, warts and all. To insist otherwise is to foist one’s value judgments on his craft and/or to take one’s eyes off the ball of his social justice work and thus to attack the messenger while ignoring his vital message. Surely, society can do better than that.

**Editor’s Note: The new book “Comedy Goes to Court: When People Stop Laughing and Start Fighting“, is now available on Amazon and at bookstores. Go get your own copy of the new bestselling book today and, of course, enjoy the read!

Sarah Silverman Sues ChatGPT’s Owner: Should Comedians be Worried about AI?

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Say hello to the AI era and its associated headaches: In recent times and seemingly from almost out of nowhere, Artificial Intelligence (AI), has jumped into the center of our public conversation thanks largely to the massive headaches it is causing everywhere from authorities worried about people cheating in their testing sessions to people worried about losing their jobs: Hollywood actors, for instance, are terrified AI could displace them at work and Google is reportedly working on getting AI to write news reports and thus send journalists to the unemployment line. Closer to home in comedy, this past July Sarah Silverman the comedian sued Open AI, the maker of ChatGPT for copyright infringement of her memoir “The Bedwetter” which she claimed was copied “without consent, without credit and without compensation.” The comedian alleged that since she did not grant OpenAI her permission to include her said work among the materials used in training the AI models, the material was likely copied from a “shadow library” of pirated works. Welcome to the era of generative AI, which describes computer programs that can create texts, images, and music, just like a human being could.

So, the obvious question is: should comedians also be worried about their own jobs and, if so, just how imminent is the AI threat to the careers of comedians? Perhaps an alternative way of framing the same question is to ask the old question of what ways comedy is or is not like the art forms of music and movies, a question that is often posed separately in the copyright protection context.    For comedians, the answer this time is good news. Unlike the comedy of a generation ago, characterized by the proverbial mother-in-law jokes, comedy today, especially stand-up comedy, tends to be a highly personalized art, where the personal experiences and perspectives of the comedian is front and center of the material and this factor tends to create a certain bond between the comedian and his audience. As a result, it is predictably more difficult for any AI bot to replicate for any comedian’s fans the same warm and idiosyncratic rendering of the material from their favorite comedian. People looking to see, for example, Jerry Seinfeld, Chris Rock, or Sarah Silverman, for that matter, would probably be quite reluctant to emotionally engage with, let alone bond, with a bot pretending to be their favorite comedian.

Yet, while comedians won’t be the first ones to fall victim to the invasion of AI, the new climate of AI aggressiveness in the art community threatens to create the proverbial slippery slope where people are conditioned to accept less and less authenticity in art as bots move into new areas, (you guessed it!) comedy included. After all, just 10 years ago, it would have been difficult to imagine the gigantic strides that AI technology has now made in various areas of human endeavor. So, whither comedy should such a dispensation ultimately arrive? In other words, how will comedy fare in such a world? Can comedians mobilize as effectively against the invasion of AI as the actors are currently doing? Well, as it happens, unlike the earlier question above, the news on this front doesn’t seem so good.

For starters, it seems fair to say that the same factors that make it rather difficult for AI bots to displace comedians from their jobs are, ironically, the reason why comedians are ill-suited to take concerted action against AI. And here is why: actors, for instance, by virtue of the nature of their work, are accustomed to working as a group and for long hours (think of all the moving parts and the different sorts of people who must collaborate in the production of a movie, both on and behind the camera).  So, the habit of collaboration and the camaraderie that inevitably results from collaborative activity are literally second nature to actors: after collaborating to produce it, it is easier to get them to collaborate to protect and defend their work.  

On the other hand, with comedians, the sort of teamwork that actors are known for is often missing, again due to the nature of their work where each comedian works on their own and does not need the collaboration of each other to produce their material. The ruling instinct in this professional community is for each member to shield their material (i.e., the jokes) from each other and this is a matter of self- preservation. Thus, comedians are more like individuals than team players and this very quality tends to take a toll on any effort to organize comedians for any sort of concerted action. Pushing back against the invasion of AI technology is a classic situation where concerted action is required and comedians are historically weak on this front.

To get a sense of the challenge here, consider the failed organizing effort by comedians in the late 1970s to start getting paid for their work by owner Mitzi Shore at the storied Comedy Store in Los Angeles or even the somewhat more successful but rather short-lived New York Comedians Coalition, so-called, led by comedian Ted Alexandro in 2004 which sought to persuade the comedy clubs in New York to pay comedians more money for their work. Anyone who has tried herding a group of cats to a common destination can perhaps imagine the problem being described here.

Whatever the outcome of Sarah Silverman’s lawsuit against Open AI, it is now a fact that AI has become something of an unwelcome guest in the house of the creative artist community. While comedians are all the way in the back of the line among the groups facing the disruptive impact of AI, they nonetheless have a dog in this fight, not least because if the dam breaks and the toxic waters of AI rushes into their territory, the very nature of their work puts them at a relative disadvantage in terms of taking collective action to meet the challenge. So, surely the comedy community will be watching for the outcome of Silverman’s lawsuit and what that could mean for their community in the new era of AI disruption.

**Editor’s Note: The new book “Comedy Goes to Court: When People Stop Laughing and Start Fighting“, is now available on Amazon and at bookstores. Go get your own copy of the new bestselling book today and, of course, enjoy the read!

Comedy Versus Free Speech: Deconstructing a Never-Ending Story

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Comedy today is a long way from where it was just a generation or two ago considering that it has now migrated from the fringes to the center of the cultural conversation. But will it be allowed to enjoy its newfound fortune undisturbed, or will it become a target of detractors who rather resent the methods by which the art form exercises its right of free speech. At issue here is just how much leeway comedians are permitted when it comes to saying things that other people might find objectionable or simply intolerable. Especially if said objections are made on behalf of vulnerable demographics in the society, as in when comedians are perceived to be “punching down” at their targets. An obvious question here is whether the attempts to deter or push back at comedians when they punch down can legitimately be seen as a threat to the integrity or even the very survival of the art form itself.

 In contemporary society the pushback against the perceived excesses of comedians is embodied in the phenomenon of political correctness (PC) and its current enforcement tool cancel culture. Among the community of free societies this tension looks to be most stark in contemporary America, not least because of the unique constitutional protection for free speech under the First Amendment.

 Regarding the threat that PC and cancel culture pose to comedy, two schools of thought seem to have emerged over time, namely, those who perceive a threat to comedy and those who think the threat is rather exaggerated. And from all indications, neither side in this debate appear willing to blink anytime soon.  

 The first group is made up mostly of comedians, such as Lewis Black, who genuinely worry about the negative impact of cancel culture on the free speech rights of comedians. In an April 2021 appearance on the NewsNation program Banfield, Black said there was now a sense of Russia-style inquisition against people perceived to hold objectionable views, and he even mentioned the word McCarthyism. Finding it “odd that a lot of these things” nowadays originate from the left as opposed to the 1960s when they came from the right, he explained that the urge to cancel people was due to a “lot of us being alone in our various pods and judging other people in the midst of losing our minds.” Black also queried whether canceling people was so high on our list of priorities compared to other important things we need to do as a society. To demonstrate the extent of the problem, Black and the host Ashley Banfield even pointed out that someone these days could get in trouble not for making the joke but rather for merely laughing at it or not pushing back against a joke perceived to be objectionable.  (On this point, Banfield referenced the backlash in April 2021 against then New York mayoral candidate Andrew Yang for merely laughing and not pushing back at a joke about sexual violence in a video he appeared in.)   

The other view of the matter comes from those who do not really consider this situation a problem. People such as comedian/comedy writer Kliph Nesteroff, who in an October 2021 op-ed for the Seattle Times (“’Cancel Culture’ Has Always Been a Problem for Comedy”) acknowledged the cancel culture problem but then took the radically contrary view that “comedians have far more freedom today”, based on his observation that subject matter involving sex, religion, politics and profanity, no longer results in jail time nowadays unlike in the past decades going back to the turn of the last century when Mae West (1927), Lenny Bruce (1960s) and Richard Pryor (1974) got in hot water with the law for what they had said.

 So, which side is right on this important question? As one might have guessed, the answer is not so straightforward after all. For starters, it is obviously tempting to suppose that contemporary comedians have it so good since they no longer risk jail time for freely wandering into formerly prohibited areas where the taboo subjects reside, whether it be religion, sex, or politics.   Yet, staying out of jail does not necessarily resolve the free speech challenge for comedians, especially when viewed from a career perspective. Cancel culture today, it turns out, poses a pretty serious problem to the comedy art form not least because of its career-ending consequences. On a comparative basis, it seems like the occasional arrest for transgressing the lines of what is considered acceptable would be less of a problem for any comedian than the brutal banishment of the comedian from their workspaces, which is often the unfortunate result if not the pernicious goal of cancel culture, whenever it targets an erring comedian.  

 Still, despite the objection of most comedians, the disciplining impact of political correctness has been a net positive for comedy at least inasmuch as comedy can be legitimately perceived as a “product” being sold to contemporary society, a factor that inevitably forces comedians to do their market research.  Especially now that comedy has not only become a big-money enterprise, but people out there seem more willing than ever before to pay for a good laugh. We can certainly think of a scenario where what makes people laugh is the thing that they are willing to “buy” from the comedian merchant. If the consumers’ minds have been so conditioned by PC thinking that they do not find a joke funny and would rather not buy it, then tough luck for the merchant hawking the joke. In a free-market society with consumer autonomy, the comedian has no more right to sell the consumer a joke they consider unacceptable than the neighborhood grocer has the right to sell the same consumer a basket of stale fruits they may find unpalatable. PC thinking may be wrong and perhaps unfair to comedians, yet the customer is still king.  

 In the end, there is one thing both sides seem to agree on: the tension between comedy and free speech won’t be going away any time soon and striking a balance between these two things remains a necessity. Nesteroff says the “tug of war between censorship and free speech has been part of comedy for its entire existence…and will likely continue.” Black for his part says that “this is something that will work itself out as we evolve.”

While we await the striking of that all-important balance and its contours, it does not seem convincing to assert that political correctness and cancel culture will kill off comedy as an art form. What rather seems more likely to happen longer term is that these factors will shape or change how comedy is performed.  And it will be interesting to see how the new practice of comedy will be different from what we know today.     

Editor’s Note: The long-awaited book “Comedy Goes to Court: When People Stop Laughing and Start Fighting” is available now and on sale. Be sure to grab your own copy of this new Amazon bestseller today. Enjoy the read!

What’s a Comedy Central “Roast” Doing at the Supreme Court?

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Without a doubt, comedy is a big deal these days in our society, especially in our pop culture, and when done smartly at an appropriate forum, the jokes can mean a lot of money, but when done in a certain way at certain places, they can also be a deadly serious affair that can wind up in front of the judges at the US Supreme Court. Not least when it involves a Comedy Central roast featuring the famous and talented insult comic Jeff Ross and a murder trial in a red state like Texas. And, under the circumstances of this case, the crucial question that pops up is whether an apparent joke is still just a joke or perhaps something rather dark and incriminating. But first, here is some background to all this:

In 2011, a Texas man named Gabriel Hall murdered an elderly man and badly injured his wheelchair-bound wife in College Station, Texas. In 2015 while Hall awaited his murder trial, comedian Jeff Ross visited the jail house where he and other inmates were being held and over some days Ross filmed a special for Comedy Central titled “Jeff Ross Roasts Criminals: Live at Brazos County Jail”. Ross claimed he was there because he was a believer in second chances and that he wanted to see if the inmates at the jailhouse had a sense of humor about their situation. Among the inmates Ross spoke to was Hall and although his talk with Hall was not ultimately included in the special when it aired, the prosecutors in Hall’s trial nonetheless subpoenaed the footage of Ross’s conversation with Hall and played it for the jury during the sentencing phase of Hall’s trial following his conviction a few months later. The prosecutors aimed to use the footage to persuade the jury that Hall had shown no remorse for his crime; as a result, the jury sentenced Hall to death.  In the footage, Ross asked Hall what he was in for, whether he had hacked somebody’s computer? Hall joked that he took a machete to someone’s screen. Ross then remarked that Hall looked like “a fuckin’ scary dude,” to which Hall said: “Oh, come on, I wouldn’t hurt a fly.” Then, Ross said: “What about a human?” And Hall replied: “Ah, they’re annoying.” The banter also included Ross making some derogatory comments about Hall’s Asian heritage.      

Well, Hall’s lawyers have challenged the use of the footage in securing the death sentence, claiming that it gave a rather misleading portrayal of Hall and his true feelings in a situation where Hall was just playing along with a comedian and nothing more. Even more significant, Hall’s lawyers have also hitched their wagons to the Sixth Amendment’s right to counsel provision, claiming that the comedian’s interactions with Hall, which generated the footage, was permitted by the jail house authorities without the presence of Hall’s attorneys and was therefore unconstitutional.

So, now we are dealing with at least two main issues here: the right to counsel under the Sixth Amendment plus the question of whether the content of the footage was just a guy playing along with a comedian or whether it was something else more sinister, as in, somebody who showed no remorse for murder.  First, the Sixth Amendment. Under the law here, anyone charged with a crime is given the right to have their lawyer present during what is known as “critical stages” of the process, meaning that this right usually comes into being even before things start happening inside the courtroom in front of a jury and so on. To explain it more simply, once a guy is arrested by the cops and is informed that they have a right to a lawyer, most ordinary folks do understand that to be the beginning of the person’s journey through the criminal justice process, and that is therefore a “critical stage” of things. The basic idea here is to protect the person in custody against unfair oppression by the government authorities.

But our situation here with Jeff Ross and Gabriel Hall is rather interesting in one obvious way: most ordinary folks can also appreciate the fact that someone bantering with a comedian, even inside a jail house, stands on a rather different footing when it comes to the right to counsel than, say, someone being interrogated by a cop in the same situation. Unlike a comedian, a cop ain’t joking around with the guy in custody, rather he is usually trying to get information about a crime, something that could doom that guy at his trial. Well, let’s just say the difference in the two situations is pretty clear and this is where Hall’s legal team has a genuine problem when it comes to their big argument about the Sixth Amendment. And this is a heavy lift, for sure.

By comparison, the lawyers seem to have a less heavy lift when it comes to whether the footage shown to the jury reflected Hall’s true feelings, as in, remorse or no remorse for his crime, or if it was just a guy playing along with a comedian. Again, most ordinary folks would understand that a guy sitting down somewhere and doing a back and forth with someone he knows is a comedian probably isn’t expecting such information to land in front of a jury that is deciding his guilt or innocence let alone a jury that is deciding whether he should live or die.         

So far, the efforts of Hall’s lawyers to shoot down his death sentence have tanked on appeal before the Texas courts, and they have decided to seek another bite at the apple at the Supreme Court of the United States. Only time will tell if they’ll find success with this move. And it likely won’t be long before we see how the Supreme Court processes the subject of humor in the criminal justice system. And, of course, it’ll also give us a window into the high court’s own sense of humor.

**Editor’s Note: The new book “Comedy Goes to Court: When People Stop Laughing and Start Fighting“, is now available on Amazon and at bookstores. Go get your own copy of the new bestselling book today and, of course, enjoy the read!

Lewis Black and his Posse: Comedians at the Copyright Barricades

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When it comes to the business of copyrights and its protection, one could be forgiven for thinking of comedians as downstairs people compared to musicians. To be sure, this old problem also seems to be a matter of respect as well as money. Not surprisingly, the comedy community these days is trying to do something about it and this time it’s the streaming services that are in their crosshairs for allegedly using their work without paying compensation for it by way of licensing. Enter Lewis Black: the comedian is suing the streamer Pandora in a California federal court for $10 million in copyright infringement damages, for allegedly streaming about 68 of his works without a license. The works in question are comedy recordings.

Black is only the latest comedian to file this sort of claim against Pandora, which is already being sued by comedians like Andrew Dice Clay, Ron White and others, including the estates of George Carlin and Robin Williams.  A win in these lawsuits will be a huge development both in terms of expanding the landscape of available copyright protection and of course turning on an additional money tap for comedians. The other big streamer Spotify avoided similar litigation last year by moving pre-emptively to yank some comedy recording from its platform after it couldn’t agree terms with the copyright holders. In that dispute, Black himself, in a gesture of solidarity with the aggrieved comedians demanded that his own works be taken off Spotify platforms as well. 

But what is really at issue in these cases and can Black and his brethren in fact win?

For starters, it bears explaining that when a work is protected by copyright, it means that the said work is both an “original” creation of the copyright owner as well as a thing that is affixed to a “tangible medium.” The said copyright owner could be an artist, a designer, a writer and more.

Now, though the allegation of the comedians we’re dealing with here is that the streamers are basically not paying for the recording being streamed at all, the question that must ultimately be resolved when it comes time to pay is exactly what particular elements of the comedy “work” should be paid for under a license. In other words, exactly what contents of the work are being licensed by the streamers? (The sort of copyright that comedians hold in their work is known as “spoken-word” copyrights.)  

While the streamers like Pandora and Spotify claim that a comedy recording is a single unified product that should attract only one license fee for the whole work, the comedians, for their part, claim that a comedy recording does in fact have two portions, namely, the recording itself and then the composition, or comedy writing, as separate components. To support their case, the comedians point to the situation with musical copyrights where the license purchaser, say a streaming service, buys and pays for both the musical recording itself as well as the composition of the song lyrics, as separate licenses. This argument was well foreshadowed by Black’s now famous remark that “a joke is just as powerful as a lyric of a song,” with the obvious implication that since the streamers are already paying separately for song lyrics, why not a joke as well.

Then again, one might well ask: if a musical recording and comedy recording are so analogous to each other, how come the two products have been treated so differently for so long and how come the comedians are only speaking up now?

It is worth noting how this question of timing seems to have played into the defense of the streamers as they attempt to fight off the recognition of this additional copyright, namely, comedy writing, which the comedians are seeking. In this regard, the streamers’ argument can be described as one based on tradition, something that some may well perceive as somewhat oppressive.  And it appears to relate to rather philosophical questions about the historical place of comedy in the broader society’s scheme of things and the inevitable value judgments around such questions. In this context, it is common knowledge that comedy’s existing recognition as an authentic art form or rather as “its own thing” is of rather recent vintage.  By contrast, music and the visual arts (think sculpture, painting, et cetera) have long been respected as legitimate art forms with valid claims to their own integrity and thus deserving of protection via things like copyright.      

Now fast forward to contemporary times and it is soon obvious that comedy’s fortunes have changed: with its newfound status as a legitimate art form, basking in the glow of a “golden age,” comedy no doubt has acquired a quite defensible claim to the greater protection of its integrity, just like music and the visual arts. Thus, for the comedy community, there is no better time than now to press this additional claim as part of an overall effort to protect every aspect of their art form and to benefit from it where appropriate. Quite simply, if not now, when?

So, in a manner of speaking, this brings us to a history versus law scenario: the comedy community’s good timing in launching this fight for a bigger slice of the pie is one thing, but whether the court will recognize their claim is quite another, considering the novelty of their claim. Though there is no certainty as to what the court will do, yet, if the comedians can justify their new claims under the law, then history won’t be able to stand in their way and they will win big. As already noted, such a big win will expand the contours of what elements of a work of comedy are protected from infringement and thus available for additional licensing. In this battle for more respect and money it seems like the comedians are the odds-on favorites to win, given the similarity of a joke and a song lyric in this copyright context and the sheer oddness of continuing to treat the two items differently. But, of course, the jury’s still out on the matter.  

*Book Release Notice: Well, folks, the new book “Comedy Goes to Court: When People Stop Laughing and Start Fighting,” is finally here and is scheduled for official release on September 22, 2022. Publisher: Hybrid Global Publishing. However, as of today the book is available on Amazon as an ebook for 99 cents. If you do obtain your copy at Amazon and you happen to like the book, please feel free to recommend the book to your friends/associates by simply giving the book a nice review/recommendation on Amazon. Enjoy the read and the laughs! Cheers!

Chris Rock and Dave Chappelle Attacked Onstage:  An Open Season on Comedians?

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First, there was the slap heard around the world this past March when comedian Chris Rock was attached by actor Will Smith as he stood on stage during the last Oscar ceremony in Los Angeles. Then, not long after came the vicious assault on comedian Dave Chappelle by a crazed audience member at the Hollywood Bowl in May.

As one might expect, many are now wondering whether we might be entering an era where comedians have to worry about becoming victims of physical assaults by people who are unhappy with their shtick onstage. Bill Maher has described the situation as a “war on jokes” and other comedians like Kathy Griffin, Howie Mandel and more have said they won’t be going back onstage at least in the meantime. So, if there is a war on comedy, what then can be done to address the situation? Before answering this question, it may be worthwhile to try to figure out what options for redress are available to any comedian attacked onstage as Messrs. Rock and Chappelle were.

Well, the obvious person to be held legally liable here is the attacker himself (or “tortfeasor” as lawyers would say). The aggrieved comedian’s quite simple claim here is one for damages for battery, which is a claim asserted against someone who has made an unlawful physical contact with somebody else without any lawful excuse. Now, how about the venues responsible for hosting both the comedians and their attackers? Here, most ordinary people would think the comedian should be able to sue the event venue and thus make them liable for not taking steps to prevent the attack on the comedian. But, alas, it doesn’t work that way in the law and this expectation will likely be disappointed. For starters, the law generally won’t hold one person liable for the “intentional” act of another person, unless, for instance, a special sort of relationship exists between them.

Typically, such relationships include, say, a master-servant situation or employer-employee situation where one person can be said to control the way and manner that another individual performs their job. These situations are often referred to as “vicarious liability” situations. But does that apply in this situation? Can one validly say that a vicarious liability situation exists between, say, the hosts of the Oscar ceremony and the actor Will Smith or for that matter any of the so many celebrities and other guests at the ceremony?

The all-too-predictable answer here is no. Because Will Smith and the other guests are merely “invitees” (albeit lawful ones) to the ceremony. They are no more related to the event hosts than someone who attends a show at a comedy club and while therein decides on their own to beat up another patron of the comedy club. Liability for such “intentional” acts falls upon the person who did the act, rather than the venue. Unless of course the event hosts had reason to know or should have known that such a danger existed and yet did nothing to prevent it. In such situations, the event hosts would be liable to any injured “invitees” who become victims of any particular dangers that were foreseeable and therefore preventable.  Long story short, comedians who get injured in situations like the ones here, like Rock and Chappelle, can generally only go after the guy who attacked them and not the venue. And if the attacker is a man of straw who can’t even pay his own rent, or is otherwise a loser, then tough luck.  (Of course, the district attorney could bring charges, but that’s a different thing altogether.)

So, when it comes to preventing attacks upon comedians for doing their jobs, there, sadly, seems to be no effective way of making that happen, given that there isn’t much that can be done to the event venues where such incidents happen. Nor in fairness can one say that the venues are in a position to prevent such occurrences anyway.

Well, so are we now in a new era where it is open season on comedians who offend people by their material? The good news is no: for all the buzz surrounding recent events involving Rock and Chappelle, there doesn’t appear to be some sort of noticeable trend of attacks on comedians to a degree that is out of the norm for their line of work. The new aggressiveness is more of a society-wide problem. There seems to be a new climate of incivility and extreme behavior from members of the public that is manifesting itself to the detriment of working people or staffers in public-facing jobs, whether they be airline employees, restaurant workers, transit workers, and yes, comedians, too. One explanation is that thanks to the pandemic and the resulting lockdowns, people seem to have been cooped up for too long and thus to have gotten just a bit more on edge than usual and, naturally, appear to be acting out more. Perhaps social scientists can tell us the expected trajectory of the extreme behaviors that we have been witnessing lately, but it is doubtful that they will become a “new normal” and, for what it is worth, comedians seem to be in no greater danger from hyper- agitated members of the public than other working people in public-facing jobs.

Speaking of the world of comedians, it is certain that getting confronted by offended people for what they have said onstage is an old problem that goes with the territory of standup comedy: sometimes the confrontation happens onstage, sometimes off stage. As far back as the 1970s New York comedy scene, for example, Joe Piscopo infamously had his nose broken by mobsters at the Improv, with a chipped tooth and black eye to boot, while a few weeks later Jimmy Brogan got confronted and “was scared to death” by a fearsome mobster after he got offstage at Catch A Rising Star and was forced by his would-be assailant to admit that “he wasn’t funny”. (“I apologized like a madman,” Brogan reportedly said.) So, between the cancel culture activists and those actually rushing the stage at them or confronting them afterwards, comedians are no strangers to folks who want them to shut the heck up. But the show must go on, even if the circumstances be different. There’s no canceling comedy. This too shall pass.

***

*Editor’s Note: At the moment the author is seriously working hard to finish writing a new book on a rather tight deadline. So please bear with us if upcoming posts do not appear as regularly as they should during this, hopefully, quite short period. However, in the meantime, please do dig into the many other posts contained in the archives, which are readily available for your reading pleasure. There are two “categories” of articles: “Comedy Legal” and “Other Controversies.” You can find all of them at the “Categories” box on the sidebar. Please keep reading!

Understanding the Politics and Rise of Right-Wing Comedy: The Missing Links

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One remarkable development in our current cultural moment is the growing emergence of conservative comedy as a powerful force in our social conversation. Contrary to other explanations so far offered for it, this essay attributes the rise of right-wing comedy to the intense polarization that has occurred in our politics and culture over the recent decades.

At the forefront of this conservative counterpoise to the more dominant liberal comedy is TV host Greg Gutfeld courtesy of his eponymous show Gutfeld! on Fox. According to Nielsen data, Gutfeld has bested the left’s leader Stephen Colbert in viewership numbers in the late-night comedy space in the most recent period.This despite the significant fact that Gutfeld’s show runs on cable rather than the more available network TV channels.

In their article on the subject, professors Nick Marx and Matt Sienkiewicz suggested that the growth of conservative comedy was due to “shifts in media industry economics and political ideologies.” (“How a Conservative Comic Greg Gutfeld Overtook Stephen Colbert in Ratings to Became the Most Popular Late-Night TV Host”, September 24, 2021, The Conversation.) 

However, the evidence rather suggests that comedy did not become “ideological” until the last two or so decades, with the overall polarization of our politics and culture.  Indeed, it was largely the ideological tenor of latter-day comedy that seemingly transformed the so-called “media industry economics”. 

For his part, comedian Bill Maher rightfully explained that “comedy goes where the funny is, and there is funny on the left now, as well as the right”. (See Real Time with Bill Maher, August 27, 2021)

However, it is a fact that both the Left and the Right have had their share of scandals and absurdities over the last half century and yet no conservative comedian (think Dennis Miller and others), regardless of their talent, had managed to break through to comedic recognition and applause like Gutfeld has done. And it’s not because conservatives don’t know how to do comedy, as Maher further claimed. They actually do.

And so, the question lingers, why now?

Well, fact is, America itself changed, materially. Over the past two decades, the political branch of comedy has tended to dominate the practice of comedy, bringing with it the introduction of ideology and advocacy to the work of comedians. This new sort of comedy has been aptly termed “muckraking comedy”, courtesy of an August 2018 article in Medium co-authored by the Paley Center’s senior curator Ron Simon and this writer, titled “The Brave New World of Muckraking Comedy.” In explaining muckraking comedy, the article stated, “Once facts were facts and jokes were jokes. But the two have merged with comedians now wanting to change hearts and minds and not just release a guffaw. Funny now investigates and persuades, with the hopes of knowing laughter too.”  Comedian Jon Stewart’s The Daily Show on Comedy Central is considered by many to have birthed this new (muckraking) era in comedy.

Once upon a time in American society, say the 1960s and 1970s, comedians simply stayed in their lanes and rendered the jokes to entertain their audiences and mostly kept their politics to themselves. And that was in keeping with the country’s mores at the time. Even a political scandal as big as Nixon’s Watergate was not perceived by most comedians of that era as offering comedy gold; nor did most Americans see it as that much of a laughing matter, as confirmed by a 1973 article in The New York Times which noted that “Watergate just isn’t a laughing matter for most of the nation’s standup comedians”. (Watergate Comics Find the Joke Is on Them,” by Roy Reed, September 8, 1973).  “When they subpoenaed the President, that’s not comedy,” said Ken Barry, a comedian from that time.

To understand the “new normal” in American comedy, try imagining the probable reactions of leftwing comics if, Donald Trump, say, were to have faced a political scandal so huge as to force his resignation from office. Given recent suggestions in some quarters of a “national divorce” between Red and Blue America, it is hardly surprising that Americans now seem to have trouble being able to laugh at the same jokes. It is this sort of polarized environment that has created the golden opportunity for conservative comedy to answer the needs of people on the political right who hunger to “own the libs” and to laugh heartily at their expense. Accordingly, right-wing comedy of the muckraking variety has simply joined the fray, not so much to displace left-wing comedy as to stand in opposition to it in the service of its own political constituency. Gutfeld’s operation has seemingly emerged as the flagship of this movement, one that appears poised to wax even stronger in our current political and cultural moment. 

Editor’s Note: At the moment the author is seriously working hard to finish writing a new book on a rather tight deadline. So please bear with us if upcoming posts do not appear as regularly as they should during this, hopefully, quite short period. However, in the meantime, please do dig into the many other posts contained in the archives, which are readily available for your reading pleasure. There are two “categories” of articles: “Comedy Legal” and “Other Controversies.” You can find all of them at the “Categories” box on the sidebar. Please keep reading!

Confronting Trump and Nixon: Comedy’s Changing Perspectives

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In the wake of the January 6 Capitol attack few would dispute the assertion that Donald Trump is the most controversial president of our lifetime. Surely, he seems to bring out the very worst in his detractors: the mainstream media loathes him and he in turn famously berates them as “the enemy” of the American people. The comedy community makes a feast of trump jokes and, as some comedians have noted, the Trump jokes are literally writing themselves. To say the least, these jokes can be pretty tough stuff and are clearly intended to hurt mightily.

It is worth stating at this point that despite Trump’s departure from power, the current moment can still be fairly regarded as the Trump era, thanks to the continuing impact of the phenomenon of Trumpism in our cultural life.

The controversy of the Trump era recalls another president in America’s modern history: Richard Nixon. Aside from his frosty, adversarial relationship with the media, Nixon, in fact, created a so-called “enemies list” of people to be hunted down by the government; predictably, the list included not a few members of the media. Former Washington Post reporter Carl Bernstein calls the Nixon’s presidency a “criminal presidency.” Ultimately, Nixon was forced to resign the presidency in disgrace. Yet, it seems rather noteworthy that the comedy community of Nixon’s time did not go after him with anything resembling the venom and virulence with which Trump is assailed by comedians of his era. Question is, what accounts for the different reactions of the comedy community to the two uniquely controversial presidents?

America in the Nixon Era

As comedy legend Dick Cavett noted, the comedian [in that era] simply set out to think about an event and try to find some humor in it. A classic example can be seen in one of Cavett’s jokes about Watergate. In it, he cracked that the White House “plumbers” in trying to do their job of plugging leaks instead opened a Watergate. Speaking of his experience with Watergate, Cavett said, “I set out to do an entertaining talk show, never dreaming that I’ll get up to my neck in a national scandal.”

Cavett’s comments aptly capture the way comedy was done in the period before the contemporary era. Back then, comedy saw itself in a different role in society: it stayed in its own lane where the whole act was about making people laugh with whatever subjects would do the trick, whether the subjects were drawn from the political arena or elsewhere. Thus, comedians did not directly venture into the politics of the day to take sides in the political controversies of the moment. (Despite its apparent ideological bent, even the Smothers Brothers Comedy Hour, which many would consider the outlier in that era, hewed closely to the goal of provoking laughter albeit at Nixon’s expense. The show neither wore its politics on its sleeves nor betrayed a burning desire to help the political opposition.)

Perhaps there was a good reason that comedians opted for that approach: their audiences, somehow, seemed to want it that way. Consider, for instance, the Watergate scandal, the biggest disaster of the Nixon presidency. According to a 1973 article in The New York Times (“Watergate Comics Find the Joke Is on Them,” by Roy Reed, September 8, 1973), most comedy audiences across the country, with the exception of a few isolated spots like New York, did not find Watergate jokes all that funny. “Watergate just isn’t a laughing matter for most of the nation’s standup comedians,” began the article, which went on to note that, “even scarcer than anti-Nixon Watergate jokes at the clubs are pro-Nixon jokes. Indeed, an informal nightclub survey didn’t turn up one of them.” From all indications, it was indeed a different time in the culture: “When they subpoenaed the President, that’s not comedy,” said Ken Barry, a comedian from that time.

Enter Trump and the Muckrakers

In today’s divisive political climate, it is difficult to imagine a comedian expressing the sort of sentiment expressed above by the comedian in the Times article. The simple reason is that we now live in the era of “muckraking comedy”, an overtly political and weaponized comedy that is news-based but lacks the commitment to objectivity that news professionals feel obliged to practice. The essence of this genre of comedy, which has been growing for the past two decades, consists of holding a viewpoint and using the vehicle of comedy to advance that viewpoint. As comedian Bill Maher rightly observed about today’s comedy audiences, “they’re there more to clap for the opinion they already believe in than to laugh. That’s what changed,” he said, adding, “It became more important to cheer for your team than to actually have a laugh.”

To be sure, the old laughter-based comedy of Cavett’s generation of comedians still exists today. However, in contemporary pop culture and the political climate that surrounds it, such comedy, clearly, has taken a back seat to the far dominant and more appealing genre of muckraking comedy, which is what reels in the all-important ratings. Given Trump’s outsized impact on the news cycle and the intense loathing of the man by those on the left, any left-leaning comedian of any significance today can only ignore anti-Trump muckraking at his or her own career peril. For instance, during Trump’s time in power, NBC’s Jimmy Fallon was forced to confront this new reality in his late-night competition with CBS’s Stephen Colbert: thanks to anti-Trump muckraking, Colbert the new-kid-on-the block in late-night comedy did seize the late-night ratings crown from Fallon, for at least three consecutive seasons through 2018-2019, when Colbert snagged a hefty 3.82 million nightly viewers compared to 2.44 million for Fallon and 2.04 million for Kimmel, according to Nielsen data.

Fallon’s troubles began in September 2016 when he famously mussed Trump’s hair during the latter’s appearance on his show, a gesture interpreted by angry audiences as him “normalizing” Trump. Over the three – year period since then, Fallon’s audience numbers have plunged whereas Colbert’s have spiked. Needless to say, Fallon has since learned his lesson and dutifully joined the anti-Trump muckraking party as a matter of sheer self-preservation. Samantha Bee is another leading comedian of the muckraking era who has reaped the benefits of anti-Trump advocacy. Acknowledging the role of outrage in her comedy, Bee noted in an interview with Canadian TV journalist Rosemary Barton that in her comedy world she found that “people care about the world” and aren’t so interested in jokes about celebrity antics anymore.

Under the prevailing circumstances, hardly any left-leaning muckraking comedian today particularly cares to either hide the political undertones of their act or the fact that they’d be glad to take down the Trump presidency if they could. And sometimes, it can get downright personal, to boot. Case in point: Bill Maher’s New Rules segment about Trump’s supposed narcissism (See Real Time with Bill Maher episode of September 21, 2018). In the six-minute span of the segment, Maher lamented how narcissism has rendered the president a stupid person who considers himself infallible and is therefore unteachable and can never be corrected. He likened Trump’s brain to a cell phone with a full mailbox where one can call but cannot leave a message.

Though more noticeable on the political left, muckraking comedy, by its nature, is a phenomenon that also exists on the right of the political spectrum. Thus, the muckraking comedy era isn’t all anti-Trump. To the contrary, the former president does indeed have some powerful muckrakers in his corner. Fox’s Gutfeld! a classic muckraking show, which according to Nielsen data is the current late-night ratings king, is a case in point.

In a nutshell, Greg Gutfeld, the show’s eponymous host, is the political right’s answer to what happens on the political left, complete with both his unabashed defense of Trump and the (correspondingly) brutal sarcasm he heaps on Joe Biden’s person and presidency. He joined the late-night fray this past April.

Making sense of what may not seem to add up

If the foregoing makes anything clear, it is that comedy’s reaction to the Nixon and Trump presidencies is a tale of two eras in comedy, which at bottom reflect a change in cultural attitudes. This cultural shift, coinciding with the transition from traditional to muckraking comedy, explains why Nixon and Trump, both right leaning and uber-controversial politicians could have been treated so dramatically differently. Whereas the audiences of one era preferred that comedians not take partisan political positions, the audiences of the other era rather wanted to be entertained with jokes that espouse an ideological point of view and would reward comedians who play the part. In this scenario, one can see that Nixon avoided the assaults of muckraking comedy simply by having existed in an era when the phenomenon did not yet exist. Trump’s presidency, however, was quite literally born into the era of muckraking comedy and he simply couldn’t avoid its harsh spotlight if he tried.

Therefore, to those who wonder about the disparate treatment of two personalities-of-a kind by the comedy community, one simple observation should suffice: Were Nixon were in power today, it’s a safe bet that he’d probably be treated with as much hostility as Trump is facing. Not least because Nixon remains the only person ever to resign the presidency, thanks to the worst political scandal of modern America.

Editor’s Note: At the moment the author is seriously working hard to finish writing a new book on a rather tight deadline. So please bear with us if upcoming posts do not appear as regularly as they should during this, hopefully, quite short period. However, in the meantime, please do dig into the many other posts contained in the archives, which are readily available for your reading pleasure. There are two “categories” of articles: “Comedy Legal” and “Other Controversies.” You can find all of them at the “Categories” box on the sidebar. Please keep reading!