Promoting Comedy in the Public Forum: Learning the Tricky Ropes

On August 25, 2021 By carlunegbuIn Comedy LegalLeave a comment

As democracies go, America is a haven for the practice of comedy thanks to the First Amendment which protects the right of free speech. And, in this area, public forums are very important, especially those venues provided by the government, which are often the venues with the largest audiences for many a speaker. Yet, access to those venues is neither as free nor as guaranteed by law as the right to free speech itself. Indeed, often times people erroneously assume that easy access to a public forum is something of a matter of course. Wrong

On closer examination, a lot of folks, comedians included, have been surprised to find that there are quite a bit of rules or regulations (principles, if you will) that govern someone’s right of access to speak at a public forum.

By the way, comedians might be interested to note here that “speech” in this context includes not just things that are said at an actual show but also things that are written or said in the process of advertising a show or event, say, on billboards or posters.

As a general rule, what one can say on a particular public forum depends on what sort of forum the place is, namely, whether it is a traditional public forum or a “designated” or limited public forum. With traditional public forums, such as public parks and street corners, life is easy and you can think of those places as free speech highways where all manner of speech is allowed, both political and ideological and non-political speech, which includes commercial speech like advertising and the like. In these forums, the government cannot restrict or deny or speech based on the “content” of that speech, meaning, for instance, that it cannot decide to allow commercial speech but ban religious speech. Nope!

In order for the government to do so, it must show not only that it had a “compelling” interest or reason restricting or denying speech but also that it had no other means available to it to achieve the same result in a manner that would have had less impact on the speech in question. Lawyers call this the “strict scrutiny” rule, the whole point of which is to make it very difficult for the government to mess around with any of the “protected” rights under the constitution.

(Note that although the government isn’t allowed to ban or restrict any constitutionally “protected” speech it is nevertheless allowed to regulate the time, place and manner of exercising the right.)

Then there are the “designated” or limited public forums, such as subways and buses, which are places where the government can choose what sort of speech to allow and which ones to prohibit. Government can choose, for instance, to ban political speech while allowing commercial speech. But as long as it has opted to allow commercial speech, it cannot then start to discriminate between commercial speeches on the basis of “viewpoint.” In other words, the government’s actions in restricting or denying speech in such situations must be “viewpoint- neutral and reasonable,” meaning that it cannot, for example, treat similar speeches differently.

For comedians and other entertainers who frequently need to publicize their shows in the public forum, the limited public forums are the ones that appear to raise the trickiest questions.

In the ordinary case, an ad by, say, a computer store on a city bus is a straightforward business promotion and often goes off without a hitch. However, problems might arise where what is said in an ad, for instance, can be perceived as “political” in nature and/ or controversial and thus banned. And this is where comedians can sometimes run into unexpected difficulties with exercising their free speech in such public forums.

Perhaps one of the more interesting cases here is the one involving some Muslim comedians who in September 2014 wanted to advertise their documentary film The Muslims Are Coming through the use of posters in the New York City subway system operated by the Metropolitan Transit Authority (MTA). The said movie, produced one year earlier, follows some Muslim-American comedians on their tour of American towns and cities and their interactions with the audiences.

The various poster ads contained the link to the movie’s website as well as various comic statements, including things like “Muslims Hate Terrorists”; “They also hate”: ‘People who tell you they went to an Ivy League School within 10 seconds of meeting them;’ ‘When the deli guy doesn’t put enough schmear on the bagel;’ ‘Getting out that last bit of toothpaste from the tube.’ The ads also contained statements like “Those Terrorists are all Muslim [the word “Muslim” is crossed out] Nutjobs,” “Grown up Muslims can do more pushups than baby Muslims” and so on. The six ads were scheduled to run over a one -month period in 144 ads across the city’s subways. But the MTA rejected the proposed ads on the grounds that the ads violated its newly adopted policy which allowed commercial speech while barring the use of its facilities for “political” speech.

However, the comedians Dean Obeidallah and Negin Farsad plus the ad’s producer Vaguely Qualified Productions sued the MTA and won big in federal court. In siding with the comedians, the court ruled instead that the ads were essentially “commercial” speech by a for-profit entity and that it was remained so even if the advertiser might have been trying to capitalize on the political controversy around Islamophobia to promote its business interest. (At the time in question, the right-wing activist Pamela Geller’s group the American Freedom Defense Initiative [AFDI] was reportedly running an anti-Muslim ad in the said subways, depicting a man in a headscarf plus the incendiary words “Killing Jews is Worship that Draws Us Close to Allah.” The Muslim comedians claimed they were simply trying to counter the possible cultural impact of that campaign.)

Furthermore, the court said that even if the ads could be considered as “political” speech, the MTA had engaged in “viewpoint discrimination” given that it had already allowed other ads on its platform that were arguably even more political in nature than the comedians’ ads in this case, such as cable TV station CNN’s ad about the GOP presidential debate which contained photos and quotes by the candidates. In other words, the court found that the MTA, which offered its subways and buses as a limited public forum for speech, was treating similar things differently in violation of the principle of “viewpoint-neutrality.”

So, what are some of the lessons here? Well, for starters, the less political speech that are contained in ads for a show, the easier life will be for the comedian. Obviously, things can get tricky when the ads straddle the political and the commercial lanes of traffic: in such situations, the authorities might be tempted to use the excuse of stopping political speech to perhaps ban the ads of a rather controversial comedian they might not like. (This is arguably what the MTA was trying to do in the Muslim comedians’ case, as the court implied.) The other thing is that when it comes to ads and free speech, life is easiest in classic public forums like public parks and streets where the test is “strict scrutiny”; things get a little hard in limited public forums like subways and buses; and even harder in nonpublic forums like public schools, public hospitals or even jail houses. With all that in mind, the good news, though, is that even in the forums that are less friendly to free speech, such as the limited or nonpublic forums, there is still the protection of the First Amendment in requiring that there be no viewpoint discrimination. In any event, ads containing statements or images that might be considered as “obscene” or statements that amount to “fighting words” or which could be viewed as “incitement to violence” are not protected under the First Amendment regardless of the forum involved.

Seriously, Can Comedy and Cancel Culture Live on the Same Planet?

On May 13, 2021May 16, 2021 By carlunegbuIn Other ControversiesLeave a comment

Comedy is at a quite different place today than it was just a generation ago.

In that simpler time, comedy was essentially about making people laugh, whether it was slapstick humor or one involving social commentary. Then society as a whole started to change, beginning in the 1960s, with the push to create a more just and less oppressive society. Thus began our society’s journey to its ultimate destination, namely, our present era of “political correctness” (PC), which requires all of society’s speech to respect the sensibilities of its oppressed or vulnerable groups. In so doing, PC has tended to create around said groups a zone of protection from offensive speech.

More consequential yet in our new PC society, especially for comedians who make their living by talking, is the emergence of a rather virulent and oppressive offshoot of PC known as “cancel culture,” courtesy of the confluence of social media, woke culture and the relative decline in the importance of comedy clubs in the career advancement of comedians. As the name implies, cancel culture simply “cancels” people for expressing offensive or objectionable opinions in the social conversation; it also cancels places and institutions for representing said offensive ideas.

In the current architecture of the cancel culture phenomenon, “wokeness” functions as the litmus test for cancellations while social media is the forum for the trial and execution of convicted offenders of the woke orthodoxy, a regularly updated and sometimes unpredictable code of conduct. Over the past two or so decades, as one might predict, especially since the advent of Twitter, the so-called PC brigade has increasingly weighed in on just how far comedians can freely swing their bats in exercising their art form. In other words, they’ve taken a position on what sort of “material” comedians are permitted to use for their work.

Hence, over the said period, several comedians have gotten into trouble for literally running the red light of political correctness, including Tracy Morgan (gay jokes); Dane Cook (Aurora, Colorado theater shooting); Bill Maher (cowardly US soldiers vs. brave terrorists) George Lopez (Kirstie Alley’s weight problem); Gilbert Gottfried (Japanese tsunami jokes) and Tosh. O (rape jokes).

Not surprisingly many in the comedy community find this state of affairs simply unacceptable. Lisa Lampanelli’s May 2013 guest column for the Hollywood Reporter (“How Political Correctness is Killing Comedy”), for example, aptly captures the prevailing sentiment of the comedy community on this matter: fundamentally, most comedians believe their art form is subjective in nature when it comes to what jokes appeal to different people and that to deny an artist the chance to explore his art is like forcing your beliefs on him.

So, the question arises, can comedy and cancel culture co-exist with each other on the same planet? As uncomfortable as it might seem, the short answer is, well, they’re going to have to.

For starters, political correctness, to be sure, seems to have some redeeming qualities, considering our society’s history of oppression and the relative permissiveness of our laws in that regard. True, there is always the risk of the pendulum swinging too far in the direction of cancel culture. Yet, PC in its good moments might actually have a salutary influence upon the civic life of any modern society. For instance, in America, the First Amendment, which is a wonderful gift that we enjoy, nonetheless gives protection to so much hurtful and, arguably, unnecessary speech that might well be homophobic, xenophobic, racist or misogynistic. Perhaps in those circumstances, it may not be such a bad thing for PC to occasionally step in and try to civilize our society.

Take the Don Imus controversy in 2007 concerning the Rutgers University basketball women, whom the late former radio host and humorist had attacked without any provocation as “nappy-headed hos” during an infamous episode of his show “Imus in the Morning.” Though to his credit Imus later apologized for his wrongheaded actions, the fact remains that he was well within his First Amendment rights when he lobbed the rather gratuitous attack on the hapless ladies. In fact, prior to the firestorm that followed his attack on the women, Imus was known to tout his irreverent show as the “First Amendment at its best and its worst.”

Now what’s the way forward in this apparent standoff between these two warring contingents, none of which is entirely blameless. Well, the starting point here is to recognize that cancel culture isn’t going anywhere soon. Under the circumstances, therefore, it is comedy more than the cancel culture squad that has to adjust to the “reality of the times”, not least for the very simple reason that comedians actually have a job to do and a living to make for that matter. Speaking of which, it must be noted that comedy is now a mature art form at a brilliant “golden age” moment, where the rewards of success are literally astronomical compared to its past.

More importantly, since comedians are doing comedy not for themselves but rather for the broader society, they must consider their “shtick” as something of a service or product being offered for sale in the marketplace. As a matter of sheer economics, it is no more a winning strategy for a comedian to push comic “material” that the audience, owing to changing sensibilities, won’t find funny than it is for a salesman to be offering goods that his prospective customers won’t buy owing to changing tastes.

For good or ill, navigating the waters of cancel culture has become a cost of doing business today in our society and must be accommodated as such. Not least because political correctness and cancel culture are not directed at comedy alone: they set down rules of general application touching every segment of society, including politicos and corporations.

In the end, the good news for talented comedians with a healthy imagination and creativity is that there is still a lot of game on the ground, meaning that there is yet so much funny stuff out there in the real world that can be said without necessarily burning down the town or breaching the proverbial “red line” drawn by contemporary society, however debatable the said line might be. Besides, in real life anyway, one cannot simply say whatever one likes any more than one can do whatever one likes. So, there you have it!

Roy Moore vs. Sacha Baron Cohen: The Maverick Politico and the Gadfly Funnyman

On April 24, 2021February 1, 2022 By carlunegbuIn Comedy LegalLeave a comment

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This is a case about a failed collaboration between two odd ducks on a project that is alleged to have damaged the reputation of one of them. The one that is suing, as one might imagine. Enter Roy Moore and Sacha Baron Cohen. One, the plaintiff, is a Republican maverick who fell short in his senate bid in Alabama a few years earlier and the other, the defendant, is a gadfly funnyman famous for pranking the unwary into embarrassing behaviors. Now they walk into a courtroom for their hour of reckoning on their failed collaboration.

First, here’s what happened: sometime in 2018, both parties took part in an episode of the defendant’s Showtime TV political satire series Who is America? In a segment of the said episode, presented in an interview format, the plaintiff Moore, who had been dogged by sexual misconduct allegations, including child molestation accusations, willingly appeared as himself whereas the defendant Cohen posed as an Israeli Mossad agent. During the interview, the defendant produced an instrument he described as a pedophile detector which is programmed to beep around pedophiles. The instrument beeped when the defendant waved it in front of the plaintiff but did not beep when the defendant then waved the same instrument in front of both himself and another person who was present at the interview. In response, the plaintiff walked out in protest, denying any and all involvement in child molestation.

In the present lawsuit, pending in federal court in New York, the plaintiffs, Roy Moore and his wife, allege defamation, intentional infliction of emotional distress and fraud, owing to Cohen’s portrayal of Moore as a pedophile, and therefore seek damages totaling $95 million against the defendant as well as the media entities Showtime and CBS.

For starters, this isn’t your typical case where somebody who is at arms-length is suing a comedian for defamation and other harms related to it. (Defamation here, simply put, means that the defendant has damaged or injured the plaintiff’s reputation in the community through a false statement of fact.) In such cases, as experience shows, it is pretty difficult to win in America because of the way the First Amendment guarantees free speech to everyone. For comedians who talk for a living, and sometimes, perhaps often times, talk in a way that offends other people, the free speech protection is a pretty big deal. And because they are comedians, most people listening to them often think they are making a “joke” rather than stating a “fact” (whether true or false) about someone else. And, of course, when the person suing is also a “public figure”, like Roy Moore, a former chief justice of Alabama and a candidate in a high-profile national campaign for the US. Senate, then the obstacles to winning are even higher because the plaintiff will have to show essentially that the defendant either knew that the statement was actually false or that the defendant (recklessly) did not care that the statement was probably false. This is the so-called “actual malice” rule.

Predictably, as any comedian would in these situations, Cohen did file a motion asking for the early dismissal of the case but the court rejected his request and waved the case on to its subsequent stages. This despite the fact that Moore had signed a “release” in favor of Cohen and his co-defendants at the start of the parties’ collaboration on the project. So why does this case seem something of a different animal and why has it already lasted longer than your typical defamation case against a comedian?

First, one should note that the parties in this case actually collaborated on the project in question, unlike the ordinary case where a comedian did something on his own that is alleged to have “harmed” the person suing him. And the release in question was signed prior to the collaboration, as one might expect. And this is where it gets complicated because the defense that a comedian is just making a joke has been tainted in this case by an allegation of fraud against the comedian: Moore claims that his signature on the release “was obtained through fraud”, thus making the release “void and inoperative”. To explain this, Moore said he was conned into doing the interview by Cohen putting on a disguise and posing as an Israeli anti-terrorism expert and also that he had been falsely told by the defendants that he was being presented with an award for his support of Israel.

Thus far, Moore’s argument is doing quite well in court, judging by the dismissal of Cohen’s motion, and this means that deciding whether there was in fact defamation or not will have to wait until the court first decides whether the agreement (the release) between the parties can be enforced and if so in whose favor. If Cohen is right, then that’s likely the end of the road for Moore because by signing the release he’d already exonerated Cohen for whatever loss or damage arises from his participation in the TV program. Of course, if, however, Moore is right, then the agreement will not protect Cohen and his co-defendants Showtime and CBS, who will then have to defend themselves against Moore’s big money claims for defamation and emotional distress in the normal manner in which such cases are litigated in court.

Now, if the case goes forward to a likely jury trial, how will the jury look at it? Well, this being a defamation case, Moore’s biggest hurdle, as suggested above, will be getting the jury to look past the fact that Cohen is a comedian and thus to think that he is doing anything other than just making a joke. That, plus the fact that Moore is a “public figure” would seem to cut in Cohen’s favor. Yet the determination of that matter by the jury will be affected by a few factors on the minus side for Cohen: for starters, an allegation of fraud consisting in disguising one’s actual identity to a collaborating partner isn’t a good look. Plus, when it comes to the question of “malice”, it won’t help Cohen’s side that Moore had previously warned them not to air the allegedly “defamatory” segment but they did so anyway, meaning that they intended to actually air it and if it turns out that it included false statements of fact, then just because Moore happens to be a public figure won’t help Cohen’s side. Besides, Moore’s claim of fraud, for instance, will be decided on different principles which are more neutral than the defamation claim, where the law is much more comedian-friendly.

In the end, though, Cohen, as a comedian, still seems to have better-than-even odds of victory in this case, at least on the defamation claim; yet he will come to find that the more a comedian gets away from the traditional boundaries of comedy and wanders into dicey areas like punking folks via questionable tactics, the more that comedian loses the generous protections afforded him by America’s First Amendment. Especially when the comedian is dealing with people of means, who can afford to make their vengeful point, winning the lawsuit itself be damned. (Already, the lawsuit has been on since 2018; has been re-located from Washington DC to New York, where presently a nasty war of words is raging between the parties’ lawyers over alleged “discovery” misconduct, with threats of sanctions on both sides.) Describing Cohen’s actions against his clients as “malicious” and “despicable”, Moore’s lawyer, the scrappy veteran litigator Larry Klayman vowed: “great harm has been done to my clients, which must be addressed and remedied.” Well, so far, as an adversary, Roy Moore is proving not to be an ordinary plaintiff, the lesson being that Cohen can still get hurt even if he wins the lawsuit.