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

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 cultureIndeed, 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 branchof 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 NoteAt 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

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 NoteAt 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!

The Brave New World of Muckraking Comedy

By Carl Unegbu and Ron Simon

These crazy times have demanded a new brand of comedy. With the news more insane than any joke a comedian can devise, this new comedy has partnered with journalism. 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. This is comedy with a Pulitzer purpose, as the New York Times recently noticed. Funny is no longer funny, as Sid Caesar would say. Funny now investigates and persuades, with the hopes of knowing laughter too.

Comedy interacts with Journalism. Murrow meets Mirth. It has been developing over twenty years, but has reached its apex with Last Week Tonight with John Oliver. We like to call this new humor, muckraking comedy. Back at the turn of the twentieth century citizens were prompted to act because of so-called muckraking reporters, who scoured the filth to discover the truth for its readers. Our leading comedians now get dirty with the transgressions of politics and culture to bring some type of cleansing illumination to its audience. Laughter is the first step of the way to action and enlightenment. You might remember Upton Sinclair from school; his novels prompted legislation in Congress. Now you can see an electronic version of The Jungle nightly with such comedy muckrakers Trevor Noah and Stephen Colbert.

Political Jokes Then and Now

Yes, there have political jokesters like Bob Hope and Johnny Carson. But they just wanted to release tension and basically affirm the status quo. Take this classic joke by Hope in the sixties: “President Kennedy is just winding up a nonpolitical tour of the 11 states he lost in the last election. He wanted to see how they’re getting along without federal aid.” Kennedy could be any politician. Funny to all sides, but ultimately harmless.

Oliver wants more. He posits: “Is anything about Trump funny anymore? I don’t know. Somehow the world’s most objectively laughable human has become a comedy graveyard where laughter goes to die.” Oliver recognizes that good old-fashioned inclusive humor is now hopelessly dead. The comic arrows must now be laced with some sort of poison. The world and its leaders are muck and your mission after the laughter is to change it.

Creating Muckraking Comedy

Well, this new muckraking comedy has transformed the process of creating jokes. If you are going to attack, you have to ensure that your jokes are as accurate and factual as anything in the New York Times. Comedy staffs now feature journalists and fact-checkers, reviewing every word to affirm it is true and factual, as well as funny. Lawyers also assiduously review punch lines to ascertain any possibility of defamation. The danger of muckraking comedy is that your targets will always be out to get you. Not to outwit you, just sue you.

Most people credit Jon Stewart as the trailblazer of this phenomenon in comedy thanks to his revolutionizing Comedy Central’ s The Daily Show. However, this new genre seems to have attained maturity at the hands of John Oliver in the weekly production of his own show HBO’s Last Week Tonight with John Oliver. Taking advantage of the weekly intervals between his shows and the absence of in-studio guests, Oliver, an alum of Daily Show and a protégé of Jon Stewart, is able to do a deep dive into an individual issue each week. Investigative reporting with savage laughs.

Oliver Takes on the Coal Industry

In this award-winning report on the coal industry, Oliver follows the journalistic principles of the muckrakers of old. He begins generally with the Trump Administration’s relationship with the coal industry. He then specially zeroes in on the safety practices of Murray Energy and the fatal collapse of the company’s mine in Utah in 2007. The piece was a smart indictment of the coal industry, worthy of Upton Sinclair, but with a large talking squirrel. His satire led to a defamation lawsuit by the company’s boss Robert Murray, which was ultimately dismissed by the court. Think how much research and comedy writing went into this piece, seamlessly intermingled.

We plan to explore ramifications of this radical muckraking comedy in future blogs. But first we want to understand the roots of the phenomenon. We had a conversation with one of its unsung heroes, Daniel Radosh. Radosh was a journalist for such publications as Spy before he became a writer for the Daily Show hosted by Jon Stewart and then Trevor Noah. Here he explains how journalism is injected into the satire, as well as the comedic differences between Stewart and Noah.

Now journalists play a very crucial role, something that Radosh considers a big legacy of Jon Stewart’s writing staff. As he puts it, “The Daily Show’s DNA” is becoming widely adopted as research and fact checking become commonplace in satirical writers’ rooms, the definition of muckraking comedy.

*This article was originally published in Medium, under Paley Matters. The co-author Ron Simon is curator of television and radio at The Paley Center for Media. Simon has been an associate adjunct professor at Columbia University and New York University, as well as a former chair of the Peabody Awards jury.

*For more interesting information about humor at large, visit Feedspot for the Top 100 Humor Blogs on the web. (https://blog.feedspot.com/humor_blogs/)

Editor’s NoteAt 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. Please keep reading!

Spy Magazine and Today’s Brutal Political Satire: An Origin Story?

A remarkable feature of today’s political satire is what appears to be its “snark and insult” character. By most accounts, it wasn’t always this rough and mean.

Perhaps the most persuasive theory on how we started down this brutal path is that the now defunct Spy magazine from the 1980s and 1990s put us on it.  Paul O’Donnell, a writer at Mediabistro.com, reportedly declared that “We’re all Spy now.”

The obvious question that arises is whether there is anything to this legacy theory?

For starters, when Spy debuted a generation ago, during the excesses and glamor of the swaggering ‘80s, it made no secret of its ambition: to take the baton to the noggins of the rich, famous and/or powerful and of course to try to take them down a peg or two. Indeed, as if to serve clear notice (to anyone listening) about the magazine’s intended brand of journalism, its maiden edition in 1986 was captioned JERKS.  In it, the magazine proceeded to ridicule individuals that it considered the “Ten Most Embarrassing New Yorkers.” Quite interestingly, this list included Donald Trump, who the magazine would, in due course, famously describe as “a short-fingered vulgarian’. Not one to be outdone in the insult department, Trump in turn dismissed the magazine as “a piece of garbage.”

For sure, any casual observer at the time could have easily noticed the magazine’s signature style and tone in dealing with its famous subjects, with its unabashed snark and insult bent. A piece that ran in its March 1988 edition could perhaps give those unfamiliar with its work a good sense of the magazine’s modus operandi. The said piece dealt with the subject of people who doubled as managers/boyfriends to their clients and it ran under the (appropriately) provocative headline “Behind Every Great Woman is a Drunk Man (With a Wispy Mustache).” The piece was accompanied by photos of three separate couples, with matching captions to boot. The first photo was captioned “Yesteryears’ Cyndi Lauper and husband manager Dave Wolf”; the second photo’s caption was “Tina Turner and Ike, In Between Spectacular Beatings”; and the third caption read “Twiggy and Nigel “Justin de Villenueve” Davies”.

In that same piece, the writer also wondered in a separate passage why a [then] 24-year-old beauty like Jenny McCarthy would be dating her manager Ray Manzella who the writer claimed resembled “a mangled Ted Danson”.  McCarthy herself was not spared the writer’s vicious ribbing and was described as a “breast-augmented and armpit sniffing former Playboy model”

So, anyhow, that’s the sort of stuff Spy was doing back then. Now what are the political satirists doing today? Well, first, it is not hard to notice that the current practice of satire has steadily become a “no-holds-barred take no-prisoners” business that often carries with it a clear point of view reflecting an ideological slant to the debate on social issues. For instance, shows like The Daily Show with Trevor Noah (previously Jon Stewart), Last Week Tonight with John Oliver or The Late Show with Stephen Colbert, which are arguably the dominant actors on the scene, make no secret of their left-leaning point of view. From the right flank of the ideological field, Greg Gutfeld’s eponymous new show Gutfeld!  (on the Fox network) is joining the party and his stock in this regard is rising steadily. To be sure, these are all news-based shows that hit pretty hard on the events of the day and the people involved in them.

Concerning the legacy question, what can barely escape notice is the obvious parallels that exist between Spy and today’s political satire, not least the shared attitude of critical or even snarky take on their respective subjects.  In fact, anyone who follows contemporary political satire probably won’t have much trouble recognizing the strong presence of Spy’s signature snark and insult in the work of the satirists. And for that matter, this phenomenon seems so infectious that even non-satirists are playing the game, too.

For instance, Trump himself, a favorite target both of then Spy magazine and today’s satirists, deploys this shared tactic of snark and insult in dealing with his opponents both in and outside the political arena, whether he is mocking handicapped people; belittling political opponents based on their physical stature or denigrating female enemies as fat pigs or ugly. Indeed, during the 2016 election, as James Poniewozik of the New York Times rightly observed, he habitually treated political campaigning “like a roast, “

Yet there are those who don’t exactly feel comfortable with the notion that a legacy exists between what Spy did in its day and what today’s satirists are doing: Daniel Radosh, for one.  Having worked as a reporter for Spy then and is now working as a senior writer on The Daily Show, Radosh is someone who can perhaps be described as a rare common link between the two worlds at issue.  As Radosh sees it, what Spy did and what, for instance, The Daily Show does, are different things in the sense that the former is journalism, albeit humorous journalism, whereas the latter is comedy, news-based though it may be. Perhaps a distinction without a difference?

Apparently not in the opinion of Radosh. He explains that what Spy did was genuinely based on the principles of journalism, where professionals would actually dig up facts and do a reporting of the news, albeit with an “attitude of playfulness, rebellion and irresponsibility which was what made it fun.” Thus, at all times they, as journalists, had to be responsible with the facts. On the other hand, he notes that The Daily Show as a news-based comedy show often relies on the facts already dug up and reported by the journalists and tries to make a joke from them. (Radosh, however, acknowledges the long form storytelling and reporting on John Oliver’s news-based comedy show as an exception to this journalism versus comedy dynamic.)

So, given the above, what does one make of the link between Spy and today’s satire?  Well, it’s obvious that Spy’s signature snark-and-insult tactic is practiced on both the left and the right in their work, not only against their targets but also in their ideological feuds with each other. In a perverse way, therefore, Spy can claim credit for starting us down this road in our political satire. Whether or not one chooses to use the term “legacy” to describe this phenomenon may well be a matter of perspective. Yet it is perhaps fair to say, though, that anyone looking to place the viciousness of our current political satire in its proper context might do well to take a look at what Spy magazine did in its day. Well, so there you have it!

***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. Please keep reading!

Fighting The Daily Stormer: When a Comedian Sues a Rogue

When a comedian sues a non-comedian for damaging his reputation, one can expect the sort of unusual scenario where ‘the usual suspects’ become the ones trying to restore sanity. So, as the hunter becomes the hunted and people wonder just how well the shoe will fit on the other foot, the recent case of Muslim comedian, lawyer and left-wing political commentator Dean Obeidallah against the controversial right-wing neo-Nazi website The Daily Stormer offers us a window into the reality of that tricky situation. But first, here’s what happened:

 This past June, Obeidallah, a SiriusXM radio host wrote a piece in The Daily Beast in which he queried why President Donald Trump wouldn’t use the phrase “white supremacist terrorism” to describe the activities of right wing extremists. According to Obeidallah, the defendant website responded by fabricating tweets that appeared to have been written by Obediallah himself and posting an article titled” Dean Obeidallah, Mastermind Behind Manchester Bombing, Calls on Trump to Declare Whites the Real Terrorists.” This was then followed by a torrent of online abuses directed at Obeidallah including even death threats. Incidentally, Obeidallah and The Daily Stormer appear to be old enemies.  Two years earlier, Obeidallah had written another piece in The Daily Beast in which he urged the GOP to disavow the growing support that then-presidential candidate Trump was receiving from right-wing extremist groups including (you guessed it!) The Daily Stormer.

In his lawsuit against The Daily Stormer and its publishers, chief among them (its public face) Andrew Anglin, Obeidallah seeks damages against the website for libel and intentional infliction of emotional distress.  

 Now, before even talking about Obeidallah’s chances of winning this defamation lawsuit, it is worth considering something else, namely, that given the sort of folks that he’s dealing with here, it increasingly looks like worrying about winning the case may well be the lesser of his problems. In fact, his biggest headache at this point is actually finding the people he is suing. Andrew Anglin and The Daily Stormer, for all their caustic advocacy of hate and extreme right-wing rhetoric, are notoriously shy when it comes to showing up to defend their position in court. And, whenever push comes to shove, finding them to serve them with court papers can often seem like looking for a tiny needle in a huge haystack.  “Good luck finding them,” one might well say to anyone in Obeidallah’s position looking to serve Anglin and his website with court papers.

This past April, for instance, the Alabama-based nonprofit legal advocacy group, the Southern Poverty Law Center (SPLC) tried to serve The Daily Stormer with court papers after suing them for intentional infliction of emotional distress and invasion of privacy for allegedly orchestrating “a troll storm” that literally sought to destroy the life Tanya Gersh, a Jewish real estate agent in Montana. (Supposedly, the Stormer’s actions were aimed at punishing Ms. Gersh for engaging with the mother of white supremacist leader Richard Spencer.) Well, let’s just say that the report card on the SPLC’s attempt to serve Anglin with court papers in his native Ohio, at one point, read like any plaintiff’s nightmare: Seven different addresses and 15 return visits yielding nothing, plus lots of undelivered certified and regular mail service. (At one point, there was even a report, albeit unsubstantiated, on CNN that said Anglin had moved to Nigeria.) Tough luck!

Long story short, Obeidallah’s opponents are not the easiest guys to find when it comes to serving court papers. Now let’s get to the law on Obeidallah’s claims against them.

First, the defamation claim involving injury to the plaintiff’s reputation is fairly easy for anyone to understand. To call anyone a “terrorist” in our post- 9/11 world is a terrible thing. What’s even worse is to say that of a Muslim person in a place like today’s America. Under these circumstances, the damage to the plaintiff’s reputation couldn’t be more self-evident. For someone in the public eye like the comedian-plaintiff in this case, whose career survival and success depends to a large extent on his public image and his acceptance by the public, the label of “terrorist” is like a dagger to the heart of his standing and reputation in the society. Of course, under the law, since truth is a defense to a defamation claim, a defendant can still defeat a defamation claim by showing that what he had said about the plaintiff is actually true. But, alas, such a defense is not available to The Daily Stormer in this case because what they said of Obeidallah here is an absolutely false and entirely made up tale with the clear purpose to ruin his reputation.

Yet, since we’re in America, the First Amendment could always come up as defense in a defamation case, for whatever it is worth. Meaning that the neo-Nazi website here, for instance, might attempt to claim that Obeidallah is a public figure and that they were simply exercising some First Amendment free speech right on a matter of public concern. Now, speaking of public figures, Obeidallah may not be a familiar person to most people on the streets of America, but he is by no means merely the sort of anonymous [private] Joe out there who rides the subways of New York City on a routine basis. To the contrary, he’s actually something of a controversial figure who takes on public causes. For instance, in the fall of 2015, he was one of the ringleaders of a group of comedians, including Negin Farsad, who won a lawsuit against the Metropolitan Transit Authority (MTA) allowing them to advertise their documentary “The Muslims Are Coming,” in the New York City subways.  In any event, public figure or not, any First Amendment defense attempted by The Daily Stormer in this case will all but flop on the simple ground that their statement against Obeidallah was “knowingly” false.

Now, how about the claim of intentional infliction of emotional distress, which, one might add, has grown into a staple of modern defamation cases. On its terms, this claim is often designed to punish defendants whose actions are judged to be so “outrageous” as to “exceed all bounds of decency” and thus to be “utterly intolerable in a civilized society.” Well, let’s just say that for all the reasons stated above with respect to the defamation claim, the clearly outrageous actions of The Daily Stormer in this case also make them liable for the intentional infliction of emotional distress.

In the end, for all the merits of his case, it’s fair to say that Obeidallah is in something of a pickle here, which is par for the course for anybody suing a rogue defendant like The Daily Stormer these days. He has overwhelming odds of winning the match if only he can get the other guy to show up. This is the kind of irony that one won’t find in most regular cases where folks tend to worry less about their opponents actually showing up for the fight.  Not to make light of the grave situation here and to give a nod to comic relief, perhaps one can say that many of Obeidallah’s comedy brethren might find in this ironic situation some good comedy material for their time onstage. But seriously, it’ll be quite interesting to see how this case ends.

 

Twitter: @Ocarls

DONALD TRUMP vs. BILL MAHER: Tensions between a Joke and a Deal

Doanld_Trump_photo4When it comes to money matters, mixing things up with Donald Trump can be a costly proposition. This means that even making a bet with the real estate mogul and Celebrity Apprentice host can earn someone a court date and maybe even set the person back a couple million dollars. Not even if the bet was meant as a joke. Not even if the person on the opposite side is a well known comedian. Like Bill Maher.

Here’s what happened: This past January, Maher, the host of HBO’s Real Time with Bill Maher appeared on Jay Leno’s Tonight Show and mocked Trump as “the spawn of his mother having sex with an orangutan.” Maher then said that if Trump could show proof that what he [Maher] said wasn’t true, he would give $5 million to Trump, which the billionaire would be free to donate to any charity of his choice, such as “Hair Club for Men, the Institute for Incorrigible Douchebaggery, whatever charity…” To drive his point home, Maher also claimed that the color of Trump’s hair and the color of an orange orangutan were the only two things in nature of the same color. The audience laughed loudly and applauded. And most people regarded Maher’s offer as merely mimicking or mocking Trump’s own offer a year earlier to donate $5 million to any charity of Barack Obama’s choosing if Obama would produce his birth certificate and college transcripts.

Well, as it turned out, if the comedian was joking, the billionaire apparently didn’t take it like a joke: Two days later, Trump produced his birth certificate to Maher and then demanded that the funnyman pony up, as promised. When that didn’t happen, Trump made a most unexpected move: He sued Maher in a Los Angeles court, for breach of contract.

Lately, it seems like The Donald has been busy trying to teach folks out there some lessons in the courtroom. Last December, just one month before the start of his dust-up with Maher, Trump was awarded $5 million dollars in his lawsuit against ex-beauty queen Sheena Monnin, a former Miss USA contestant, who in June last year pulled out of the pageant after alleging that the competition was fixed. In response, the Trump Organization, owner of the pageant, hit her with a defamation lawsuit, claiming that her false statements had hurt the reputation of the Miss USA Competition. The arbitrator agreed, and ordered Monnin, a former Miss Pennsylvania, to pay $5 million to the Trump Organization.

However, in the comedy industry, Trump’s lawsuit against Maher has not won him a lot of admirers. At stake here is the longstanding freedom of comedians to go on comedy talk shows and just parody public figures without even thinking about it. Needless to say, whatever Trump’s chances of winning the case, his accusers fear that if he wins the lawsuit against Maher, it could open a brand new door against comedians which people had assumed did not even exist. To be sure, this sort of apprehension flows in the same stream as the so-called ‘chill’ factor on free speech rights in general.

But what are Trump’s odds of actually winning? Can he even sue Maher for breach of contract in a situation like this one? For starters, when most folks think about breach of contract, they often imagine a situation where two people have made promises to one another and then one of them either refuses or fails to keep his word. In such situations, the agreement is made ahead of time, with each party knowing exactly what he promises to do and what he gets in return from the other side. Needless to say, they both recognize that the agreement is ‘binding’ on them and that they can be sued in court if they don’t keep their promise. This kind of contract is called a ‘bilateral’ contract and is obviously not the sort of situation that Trump and Maher are involved in.

But that’s not all. There are other situations that might involve people who have never negotiated or ‘bargained’ with each other or perhaps have never even known each other or met each other before. Yet, as long as an offer is made by one person and accepted by the other, a contract situation can arise between them. Again, it must be clear to both parties that the agreement is ‘binding’ on them and that they can be sued in court for not honoring the agreement. Here’s a situation where that could happen: Jose loses his dog and offers to pay $200 to anyone who finds and returns his lost dog to him. Three days go by and Jimmy finds the dog and returns it to Jose. At that point, Jimmy has ‘accepted’ the contract by actually performing it and Jimmy can sue Jose for breach of contract if he fails to pay up. This kind of contract is called a ‘unilateral’ contract and it is obviously less commonplace than the other kind of contract, discussed above. And for whatever it is worth, this is the kind of contract that Trump’s lawsuit assumes exists between the billionaire and the comedian.

Still, Trump has a real problem here as far as trying to establish that he and Maher entered into a contract. The crucial piece that is missing in their situation is something called ‘intent to enter into legal relations.’ Translation: Did Maher intend to make an offer that is ‘binding’ at law? Usually, when it comes to whether a person means what he says to stand as a valid offer or promise, the ‘context’ of the statement can be pretty crucial. Naturally, not every offer will qualify as valid. Consider the case of a ‘puff’ in a product ad. As the court recognized in an old English case from 1893, it is possible that what might seem to one party like a promise or an offer from the other party may be ‘only a puff from which no promise to pay could be implied.’ In layman’s language, a ‘puff’ is just an exaggeration or swagger about something, and when it comes to offers, stuff like ‘puffs’ are out.

Now, speaking of ‘context’ and ‘intent,’ here’s the big question in this lawsuit: what is the ‘intent’ of a comedian making a funny statement on a late night show in America? Is he looking to make an agreement that is ‘binding’ upon him at law, even if he’s mentioning somebody else by name? The short answer here is that any average person (think: a ‘reasonable’ person) who understands the nature of American talk shows as well as how comedians generally behave probably would not think so. More likely, he or she will think that the comedian was merely joking around.

There is another angle to Trump’s lawsuit: As he took Maher to court, Trump rejected the idea that Maher may simply have been joking when he made the offer. “I don’t think he was joking. He said it with venom,” Without directly saying so, this talk about ‘venom’ seems to hint at ‘malice’ on the part of Maher. An accusation that somebody made a statement or did something with malice likely would be more relevant and even helpful in a different lawsuit than a breach of contact claim. Because of this, one just might wonder why Trump did not choose to sue Maher for something like defamation instead of breach of contract. By the way, Trump presented his birth certificate in an attempt to show that Maher’s statement was false. And we note that a false statement that hurts someone’s reputation is the whole point of a defamation claim. Plus, as a billionaire with huge financial interests in the business arena, the money he can recover against someone who has damaged his ‘reputation’ would be a lot more than $5million. After all, defaming a billionaire like Trump is not like defaming a cabbie or a janitor.

So, why didn’t he sue for defamation instead? Well, apparently because Trump is smart or at least his lawyers are. To be sure, whatever his odds of winning his present breach of contract claim against Maher, his odds of winning a defamation claim against the comedian are even longer. Much longer indeed! A defamation claim against a comedian for what he said on another comedian’s talk show will quickly be consumed by much legal wrangling and bombast over the First Amendment and free speech. Long story short, between the notion that Trump is a ‘public figure’ and other matters that the free speech law concerns itself with, such a messy fight will most likely end up as a losing proposition for him.

In a defamation kind of situation, either Maher’s statement will be found to be a mere joke or parody, given the ‘context’ in which it was made, or it would be considered as a mere statement of opinion rather than fact. One way or the other the result will be the same for Trump – a defeat! Yet, for all the talk about ‘context,’ the law as they often say, remains ‘an ass’ and one can imagine a situation where something that a comedian says even on a talk show can still get him in trouble in a courtroom. For one thing, there is always that old principle that ‘a person is not allowed to murder another’s reputation in jest.’ But that’s not the situation we have in this lawsuit, it seems.

Well, in life, it is said that you win some and you lose some and Trump certainly had a big win in that defamation case against Miss Pennsylvania. But there are real differences between the case he won against the beauty queen and any possible defamation case that he could bring against the comedian here. The biggest difference is that the beauty queen made a statement of fact that the pageant was rigged, which turned out to be a false statement. It is awfully easy to imagine the serious damage that such a rather ill-advised statement can cause to the reputation of both the Trump Organization and the competition itself. Consider the context of the two statements: The Miss USA Competition is a serious event where folks win money, careers are made, role models emerge and media interest is high. On the other hand, Maher is a comedian who likely was merely grandstanding or bloviating on another comedian’s talk show, a program which opens every weeknight with a traditional stand-up monologue. The two scenarios are vastly different from one another.

In the end, Maher most probably won’t end up paying $5 million on Trump’s breach of contract case. But between paying his lawyers and going to court in this lawsuit, perhaps Maher has ‘picked on the wrong marine’ and has made a joke that will bring him an unexpected hassle. Despite his likely defeat in this case, The Donald is a tough customer who plays hard ball whenever the whistle is blown in any fight. From all indications, he will not be in any position in the present lawsuit to teach the comedian the kind of ‘expensive lesson’ (as he put it) that he taught the beauty queen. Yet, at the end of the day, he likely will have made his point with his lawsuit – a move that some have angrily denounced as an outrageous attack on comedy.

Please stay tuned for my upcoming book “Comedy Under Attack…”. Coming out soon!