Promoting Comedy in the Public Forum: Learning the Tricky Ropes

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?

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

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

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.

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The Predicament of Mike Ward: An American Perspective on Canadian Comedy

What’s the difference between a Canadian comic and his American counterpart? Simple answer: location, location, location.

The brash Canadian comedian Mike Ward has had quite the unpleasant experience in his march through the comedy landscape of his country. From all indications, if he thought his native Canada was a place where a comedian could safely ply controversial material, he figured wrong, it seems. And for good measure, such a comedian could also find himself in the poor house should some in his audience decide to take him before the authorities.

But before getting into how Canadian and American comedy stack up against one another, it may be well to briefly recount the Mike Ward story:

In 2010, Ward, in a series of routines he performed at his shows in Canada, attacked a disabled kid named Jeremy Gabriel, whom he denounced as “ugly” and lamented the fact that the kid had not yet died. (Gabriel, 13 years old at the time, was born with a condition known as Treacher Collins syndrome which left him with a deformed face and skull. At the time of Ward’s attack, Gabriel had become something of a local celebrity in Canada’s Quebec province for his singing ability, including singing with Celine Dion as well as singing for the Pope in 2006. Ward claimed that he had initially supported Gabriel’s good fortune, on the assumption that the world was coddling him because he would soon die. Ward said that he felt duped when years had passed and Gabriel was still going strong with his singing fame. In reaction, the comedian said he went on the Internet to find out exactly what Gabriel was suffering from. Ward said he was surprised at what he discovered: “You know what it was? He’s ugly, godammit!”

Long story short, Gabriel and his family sued Ward before the Quebec Human Rights Commission for allegedly “hurting, vexing and humiliating” him and as well as for damaging his [Gabriel] confidence and singing career and causing him to be mocked at school. In its 2016 ruling, the Commission said that the comedian’s joke violated Gabriel’s right to dignity, honor and reputation as well as his right to equality and to be safe from discrimination. As a remedy, it penalized Ward with a total fine of $42,000 (consisting of $35,000 to Gabriel and $7,000 to his mom).

The Commission’s ruling outraged Ward and many of his supporters in the comedy community, He promptly set up a crowdfunding campaign and launched an appeal against the ruling. Speaking on behalf of other comics, Ward said: “If the judgment is maintained, no one will be able to dare to be a stand-up comic, because normally you make fun of things that are controversial, otherwise it’s not funny. …If anything that’s controversial can authorize someone to say, I was hurt, I’m going to court, then we’re finished.” Then he tagged on an interesting analogy: “To bring a comedian to court who does dark humor, for a trashy joke, is like giving Vin Diesel a speeding ticket for driving fast in [the movie] The Fast and the Furious.”

Now, let’s consider a different scenario, this time involving Canada and the U.S., its close neighbor to the south. Both countries are democracies and open societies. So, suppose the Ward situation occurred in the US, will the comedian’s fate be any different? In other words, if Ward would have appeared at some comedy venue in America and viciously attacked some disabled kid, will he face a peril to his career similar to what happened to him in Canada? Well, the short answer is: Probably not!

For starters, considering the central role of the First Amendment’s free speech guarantee in the conversation in America’s public square, there would seem to be no room for an agency like the Quebec Human Rights Commission. Fact is, the agency’s watchdog role carries way too much potential for censorship than the First Amendment could live with. To the blessing of comedians in America, controversial speech oddly seems to enjoy enormous protection from censorship. To say things that hurt somebody else’s feelings or even things that are very cruel are allowed in America’s social conversation. Needless to say, Americans get it clearly that the “free society” they pride themselves in can also be a pretty uncomfortable society where some of the most offensive things ever may yet be safely said. Pretty much everything is allowed, other than a few situations like where somebody’s speech could be viewed as inciting violence or be considered as “fighting words” (the sort that would likely draw a violent reaction from the person to whom they are addressed).

So, in the above scenario, merely attacking a disabled kid, however viciously and however tacky the action might seem, would not be reason enough to find legal liability against a comedian and thus to impose a punishing fine upon him. In short, the Mike Ward ordeal is simply a Canadian story that is hard to imagine in a place like America.

However, given the Gabriel family’s other allegation that Ward damaged Gabriel’s reputation by his joke, plus the Commission’s references to Gabriel’s honor and reputation in its decision, some have wondered why a good old-fashioned defamation action cannot be successfully pursued against Ward even in an American court. Well, not much luck here, either. And the reason is simple enough: Statements that a professional funnyman made to audiences who understood said statements as a joke would not qualify as the kind of false statement of fact that would damage somebody else’s reputation, which is the very point of a defamation action.

Yet just because comedians south of the border are allowed by the law to be offensive to others doesn’t mean that an American comedian whose stock in trade is the plying of unnecessarily “outrageous” material will enjoy a smooth sail to a comfortable career. In an era of political correctness and cancel culture, there is the law and then there is the court of public opinion, two different venues. Whereas the law may not take an outrageous comedian’s money from him by way of court fines, for its part, the consuming public may refuse to give him any money at all by simply not patronizing his comedy. This is a powerful reality that neither Ward nor any comedian in America or Canada for that matter can afford to ignore.

Still, in America, fortunately for comics, political correctness and the law continue to have some good degree of separation from each other unlike in Canada where they currently appear to the merging and this surely can’t be good news for comedy. As the Mike Ward situation demonstrates, it seems that when speaking of the very survival of a comedian’s career, the whims of political correctness and cancel culture are more manageable hazards than the blunt instrument of a court order directed at the comedian. As it happens, an unfavorable court order is no laughing matter, even for a funnyman.


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Free Speech versus Privacy: British comedian Louise Reay sued by ex-husband

As it happens, comedians tend to have extroverted personalities and considering the nature of their jobs, that isn’t exactly surprising. Yet, they also have a private life and sometimes they actually do draw some of their comic material from the experiences of their private lives just like their other experiences. Problem is, other people in the private lives of comedians may not be so extroverted themselves and so may rather want their private business kept out of the knowledge of the public. So, as one might expect in such situations, comedians do sometimes actually get sued by aggrieved family members who feel victimized when comedians wash domestic laundry in public. The latest episode in this sort of saga comes from Britain where comedian Louise Reay and her ex-husband Thomas Reay are currently embroiled in a defamation lawsuit that has been framed as a free speech case, despite being accompanied by some menacing invasion of privacy allegations.

First, here’s what happened: In 2017, comedian Louise [Beaumont] Reay, put together a 50- minute show titled Hard Mode in which she purported to discuss issues of censorship and authoritarianism with references to China and the BBC. However, the show also contained references to personal details of her life with her ex-husband, Thomas, the plaintiff in the current defamation lawsuit. Upon learning of the contents of the show [presented at the Edinburgh Fringe Festival and in London], Thomas sent Louise a written complaint demanding that she stop talking about the said matters in the show. He subsequently filed a lawsuit against her over the contents of the show, alleging defamation, invasion of privacy and data protection, and sought £30,000 in damages plus costs and an injunction demanding that she refrain from making [publishing] further statements about him.

The plaintiff’s side stated that after clearly identifying him [the plaintiff] both verbally and in still and moving images, the defendant-comedian then proceeded to present private information about the plaintiff and his relationship with the defendant which pushed “the entirely false suggestion” that his relationship with the defendant was “an abusive one.”

Given how commonplace it is for comedians to talk about their personal lives in their work, this lawsuit is such a big deal especially in regard to how a defeat for her in this case might impact the work habits of comedians who think it permissible and safe to include personal life stuff in their material. There is an undeniable chilling effect here, whatever the extent. Perhaps perceiving the significance of this factor, the defendant-comedian Louise Reay, the laureate of the 2015 Alternative New Comedian of the Year award, has opted to invoke the camaraderie of her comedy peers by framing this case as a free speech matter of immense implication for the comedy community. Thus, she has set up a crowdfunding website (GoFundMe) for her legal defense and her comedy peers have rallied around her.

“As standup comedians I believe it’s the very definition of our job to talk about our lives and social issues, so this has become a free speech issue and free speech means everything to me,” she said on the crowdfunding site.

Curiously, though, despite her free speech stance, upon initially receiving his written protest, she did remove the offending references to her husband in subsequent presentations of the show.

(By the way, in plain language for simple folk, liability for defamation arises from the making of false statements of fact that injure the victim’s reputation in the community.)

But how will her free speech defense play out in this defamation lawsuit? Will it fly any?

Well, for starters, it is worth noting that her free speech defense to the defamation lawsuit would have fared way better in an American courtroom than in a place like Britain thanks to America’s world-famous First Amendment whose goal is to ensure that debate on matters of public interest is “robust, uninhibited and wide open.” Yet even in America, in order to enjoy such free speech protections, the offending statements must not be knowingly or recklessly false. And of course, they must relate to discussions about matters of public interest or concern public figures and officials. Since her ex-husband, the plaintiff, presumably, is a private person and the facts about his life and their failed marriage are not matters of public interest, she likely would have had trouble mounting a free speech defense over here in America if she would have been an American defendant. So, long story short, her case probably would have been decided over here in America the same way the British courts are going to decide it, that is to say, like a regular defamation case with no frills.

So, without any First Amendment-style interventions, how will this comedian’s available defenses play out in an old-style defamation court litigation?

Well, from all indications, let’s just say there is some heavy lifting to be done. To this comedian’s peril, it seems that while addressing the vexed issue of censorship in society, she rather chose to take her eyes off the ball for a bit and took an unrelated and quite irrelevant dig at her ex-husband. Yet, being a comedian in a situation such as this, her most obvious line of defense seems to be an assertion that this whole thing was simply a joke being made by a comedian. Her other defense [already foreshadowed in some of her statements] is something of a de minimis claim, namely, that we’re simply dealing with a mere two-minute portion of a 50-minute presentation. In perspective, if she can prevail on the first point about it being but a joke, there will be no need to try to rely on the second point about it being but a rather tiny portion of the entire show. Conversely, if she loses that argument, then the two-minute factor won’t help her.

However, for her to win the argument on the “joke” front, it has to be clearly shown at least that the references to her ex-husband were both intended and understood as a joke by its listeners or audience. Only problem here is, as the plaintiff’s side claims, is that he was clearly identified in both still and moving images which were then accompanied by factual statements about him and his marriage to the defendant which portrayed him as an abusive person. The plaintiff alleges that these statements of fact were false and thus defamatory. Question is, will the judge agree with the plaintiff’s version of the matter or will he instead think that the statements were just a joke and would have been understood by reasonable people who saw the images and heard the statements as just a comedian making a joke. (By the way, rare though it may be, someone can still be found liable in defamation for a joke because as the old saying goes, one is not allowed to “murder the reputation of another in jest”.)

And then, there is the invasion of privacy claim which is a straight up tort matter that stands separate and apart from the defamation claim. This concerns the right of people to be left alone in their personal spaces. And in terms of a plaintiff proving somebody’s liability, this claim seems to be less complicated than the defamation one where arguments about free speech and opinion issues could muddy the waters and create uncertainty. Not so here. In a situation such as the present case where it is alleged that, without the plaintiff’s consent, the show [Hard Mode] presented personal information about the plaintiff [Thomas] together with still and moving images of him plus other information about what he did during the marriage, there seems to be enough ground for the court to find an unlawful invasion of privacy. That is, if the allegations are in fact proven. Of course, where it is shown that somebody’s privacy has been invaded by another, the courts can always issue “injunctions” to get the offender to stop doing the things complained against.

Also, some might be wondering whether it helps her overall case that in subsequent presentations of the show, she did yank the offending portions of the show upon receiving the plaintiff’s initial complaint or protest about the matter. Well, aside from showing that she maybe realized that she was acting wrongfully, the removal of the said offending portions will probably not absolve her of liability for defamation and invasion of privacy if such liability is otherwise found to exist. More likely, in such a situation, it will be a factor in her favor when the court is assessing what damages to award to the plaintiff.

In the end, whichever way this ends for award-winning comedian Louise Reay, it will likely rank among the most serious cases anyone has yet brought against a comedian for family-related personal information contained in their comic material. Certainly, it is pretty smart of the comedy community to be paying such close attention to it. To be sure, this is a genuine concern that exists on both sides of the Atlantic.

 

(***Breaking News: A sassy new genre of comedy just arrived on the scene ; it’s called  Muckraking Comedy.   Stay current and read all about it at Paley Matters. Enjoy!  https://paleymatters.org/the-brave-new-world-of-muckraking-comedy-feeb86ec4115)

The Defeat of Matt Hoss: A Copyright Lesson for Comedians

Nowadays we live in a new era of comedy where copying a comedian’s work can seem like removing money from his pocket. Needless to say, this is the sort of situation where the aggressor can expect some pretty hard pushback. Yet, as comedian Matt Hoss (full name: Matt Hosseinzadeh) learned not that long ago, just because a comedian thinks that somebody else has crossed the line does not make it so – at least as far as the law is concerned.

Now, here’s what happened: In May 2016, the edgy comedian Matt Hoss (aka “The Bold Guy” or the “Pick-Up Artist”), filed a copyright violation case in federal court in Manhattan against Ethan and Hila Klein, the producers of the YouTube Channel H3H3 Productions. Hoss essentially alleged that the Klein duo by taking way too much of the contents of his earlier video titled “Bold Guy vs Parkour Girl” for inclusion in their latter reaction video (a 13-minute work which sought to satirize his said earlier video) had thereby committed a violation of his copyright in the video. Hoss’s lawsuit also tagged on some less significant claims against the Kleins, including defamation.

After the Klein team, a married duo, got word of the lawsuit out to their more than four million subscribers, they responded by floating a GoFundMe campaign that reportedly netted over $160, 000 for the Kleins’ legal defense of Hoss’s lawsuit. The cause celebre here? Well, it’s “fair use” concerns on YouTube.

Explaining his lawsuit Hoss claimed: “You can essentially watch my film by watching their video. That frustrates the entire point of copyright. Critiquing or commenting on a film should not, and almost always does not, use virtually the entire work.” Well, let’s just say the court didn’t see it that way; otherwise, Hoss would have had a better day in court rather than a big defeat.

Indeed, the decision of the federal court in the case turned out to be a big win for the “fair use” folks and their crowdfunding campaign: In late August, the court ruled that H3H3’s actions were protected under the “fair use” doctrine. The judge explained that a review of H3H3’s reaction video showed that it amounted to a critical commentary upon the Hoss video and that it was not a market substitute for the Hoss video, contrary to Hoss’ claim that one can watch his film by simply watching the reaction video.

To be sure, the defeat of Hoss’ lawsuit isn’t at all surprising. In a place like America where the First Amendment is a big deal and offers protections to both comedians and non-comedians alike, a doctrine like “fair use” serves as an important tool for the promotion of free expression and debate in the public square. Some critics, though, who perceive H3H3 as bullies, have frowned upon the fact that even sometimes spiteful actors like the Kleins are granted free speech protections for their offensive work. But, oh, well, this is America and the First Amendment is just doing its job in our national conversation. In this copyright context, this means that a person using somebody else’s copyrighted work doesn’t necessarily need the permission of the owner of the earlier work. Nor does the person have to say something nice about the earlier work. They can be as snarky as they want to be. As a matter of fact, such a person is protected as long as he is traveling along the lane of commentary upon or critique of the said work.

Anyhow, from the court’s decision, it is clear that Hoss fell into a common error among copyright plaintiffs regarding the exact extent of the copyright protection that their work enjoys. The problem is made worse by the fact that assessing a doctrine like “fair use” in any litigation is typically a “fact-intensive” inquiry, as the lawyers would say. It is generally a case-by-case situation, meaning that no set-formula exists beforehand for making the call in each case. So, one thing to keep in mind is that just because somebody has copied another person’s copyrighted work for inclusion in their own production does not mean that they’ve run the red light yet. Not even in a situation where the second work has copied a whole lot from the first work, as noted above. As the court made clear, the second work is allowed to use as much of the first work as is necessary to accomplish what the court called the “transformative purpose of critical commentary” of the first work.

In practical terms, determining how much is needed for such purpose depends both on the “context” of the work and the “utility” of the portion copied. In plain language, the second person is allowed to copy as much as he needs in order for the portion copied from the first work to make sense in the second work; of course, by itself the second work now represents a transformation of the first work. Incidentally, speaking of “reaction videos” in a battle between YouTube channels, it bears noting that if the second work simply copied and presented the first work to its viewers with very little or no commentary or criticism of the first work, then it’s difficult to say that it is a “transformation” of the first work.

In such a situation, where no transformation is present, the second work would be putting itself in situation where it literally becomes a substitute for the first work in the market place. In our case here, it would mean that folks looking to watch Hoss’s video might as well just watch H3H3’s video instead. This sort of situation is a no-no and goes against the very purpose of copyright protection. If that would have happened in this case, it would have resulted in a likely win for Matt Hoss. But the court said it didn’t.
As noted above, Hoss also made a few other claims that were less of a big deal in this case, including the claim of defamation which were decided against him. For instance, the defamation claim was simply tossed out because the statements he alleged as defamatory toward him were ruled as pure statements of opinion by Ethan Klein which had no basis in fact. The actual meat of his case was always the copyright claim.

In the end, the simple lesson here is that copyright protection is not intended to give the owner absolute dominion over the copyrighted work, meaning that not every case of copying amounts to a copyright violation. When the second work can be said to represent a transformation of the first work, there likely is no violation. But whether or not lawful transformation has occurred in each situation is a matter for the courts to decide on a case-by-case basis, as explained above. Yet one thing is for sure: someone who is simply lifting somebody else’s work without adding anything to it is, well, probably running the red light of copyright law.

 

Twitter: @ocarls

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

Suing JOHN OLIVER For Defamation: A Good Use Of Time?

Speaking of occupational hazards, comedians cannot help but irritate people and they do it aplenty. And, for what it is worth, they do get sued by those they piss off. This time John Oliver, host of HBO’s Last Week Tonight, has been sued for defamation by Robert Murray, founder and CEO of coal company Murray Energy Corporation, over statements that Oliver made on his show in mid-June.

So, there we go yet again, along the beaten path, one might say, as another lawsuit is filed against a comedian over what he said on a comedy show. While it may be tempting for those with money and other resources to step out there and try to teach a comedian a lesson, one has to wonder whether such a move is a good use of time in a place like America.

But first, here’s what happened:

On the aforementioned episode of his show, Oliver had a segment in which he knocked the Trump Administration’s efforts to revive the coal industry and portrayed CEO Murray as a guy who had fought against coal safety regulations. He referenced the collapse of one of Murray’s mines in Utah in 2007, in which nine miners were killed plus how Murray falsely claimed that an earthquake was to blame for the disaster even though, as Oliver said, a government report indicated otherwise.

In response, a few days later, Murray sued John Oliver along with the show’s producer Charles Wilson; HBO and parent company Time Warner on the claim that the segment was “false, injurious and defamatory” and that it was based on the show’s biases against the coal industry and the Trump Administration’s coal policies. To support his suit, filed in [coal country ] West Virginia, Murray, whose company is based in Ohio, claimed that the show’s producers were fully aware that a report by a government agency [Federal Mine Safety and Health Administration] supported his own version of the events and yet persisted in running the segment that “intentionally, falsely and outrageously” asserted that Murray’s claim was false.

So, that’s Murray’s defamation case against Oliver. But what are his genuine chances of winning? Well, for starters, defamation involves a false statement of fact that results in injury to somebody’s reputation or standing in the community. Now in defending this case, Oliver appears to have two grounds upon which he can push back against Murray. In other words, he can actually get two bites at the apple.

First, since we are dealing with an alleged false statement of fact, it follows that “truth” is a recognized defense to any defamation claim. And, given the circumstances of this case, one can predict that Oliver will try to play the truth card. Prior to the show episode in question, Murray’s side had served a “cease-and-desist” notice on Oliver’s people demanding that they not run the offending segment. Yet, during the show, Oliver positively scoffed at Murray’s notice, saying, “I know that you’re probably going to sue me, but you know what? I stand by everything I said.” Hmm! Well, so there you have it: Oliver clearly anticipated this lawsuit as well as his likely use of truth as a shield against liability. Translation: “The truth shall set you free…”, as the saying goes.

Then again, what if for some reason the truth defense doesn’t fly. Does it mean Oliver is toast? Not so fast! Now since we’re living in America, he could then move the ball into First Amendment territory, where our nation’s high court has long since held that debate on matters of public policy must be “uninhibited, robust and wide open”. Under the law here, for Murray to win, he has to show that Oliver knowingly made a false statement of fact or that he was reckless as to whether or not the statement was true. This is the so-called “actual malice” standard, which applies to public figures. Now, Murray may not be a public official, but it is hard for him not to be classified as a “public figure” considering a number of factors ranging from his prominent role in the mine collapse controversy and the references to him during official hearings on the matter to his position as the CEO of what is regarded by many as the biggest privately-owned coal company in America. (He would at least qualify as a “limited public figure” and that’s good enough for this purpose.) Besides, this is a debate about an important matter of public policy and concern, namely, mine safety. So yeah, in this lawsuit Murray probably will be deemed a public figure subject to the actual malice test. And there lies a big problem for him because this test  typically is a high hurdle for anyone to clear and, as experience has shown, the analysis here is exactly where these sorts of cases usually meet their Waterloo.

And this is so notwithstanding Murray’s allegation that the show’s producers in pushing their biased version of events were aware of other reports which indicated that an earthquake was responsible for the mine collapse. The thing here is, if Oliver relied on a government report in forming his opinion on the matter, as he claimed, then he cannot be said to have acted with malice, a la reckless disregard of the truth. As a participant in a public policy debate, he was entitled to hold and advance his own opinion, however offensive it may be.

Yet, if all else fails (which is unlikely anyway), Oliver can always say he was just making a joke as (you guessed it!) a comedian. Here, as long as a comedian is understood by his listeners to be making a joke, it makes it that much harder for a defendant like Murray to claim that the listeners are taking the funnyman’s cracks as true statements of fact, especially when we’re dealing with a famous comedian.

Oh, by the way, speaking of making a joke as a comedian, Oliver could also simply decide to play his entire defense backwards from the way it has been presented above. So, he could, for instance, straight up claim that the whole thing was all a joke for the amusement of his listeners. And if that doesn’t cut it, he can then start taking his two bites at the apple as described above, namely, that the offending statements are ‘true” anyhow or, alternatively, that he was just participating in an “uninhibited, robust and wide-open” debate on a matter of public concern.

In the end, there are a couple different ways that Oliver could win this thing. On the flip side, Murray’s odds of winning are quite long indeed. Then again, Murray could be the sort of guy who finds it worth his while to hale Oliver into court and make him sweat some and spend money on lawyers. After all, the statements in his lawsuit suggest that Murray feels wounded by Oliver’s attempts to make fun of his age and appearance. Recall that Oliver also called the guy a “geriatric Dr. Evil,” for added measure. So, given the gigantic odds against him, it is quite possible that Murray might choose to press ahead in this lawsuit because he looks at victory in an altogether different way, however perverse and vindictive that might seem to the rest of us. Otherwise, a lawsuit of this sort against a comedian in a place like America isn’t a good use of time because winning on the merits just isn’t a realistic expectation.

Twitter: #@ocarls

Going to Jail for a Joke: A Contemporary American Look at German Comedy

jan_bohmernann_photo6The saying that America is a ‘free country’ is something that Americans in the comedy business in contemporary times would probably appreciate better than most people. But in other places, however, thanks to their laws, comedians actually live in a different world and in some cases can actually go to jail for the content of their comedy. Perhaps surprisingly, Germany is one of those places.

Take the case of comedian Jan Bohmermann. In March 2016, Bohmermann, a German insult comedian and host of the satirical talk show Neo Magazin Royale took an offensive shot at Turkish leader Recep Tayyip Erdogan. Sitting in front of a Turkish flag and a portrait of Erdogan, Bohmermann read a poem in which he suggested, among other things, that the Turkish leader had sex with goats and watched child porn. Ouch! Well, perhaps this was great comedy for his audience but the offensive gag did in fact run up against an actual law in Germany which forbids anyone from insulting a foreign leader. The punishment? Up to three years jail or a fine.

Not surprisingly, the reaction of the Turkish government was swift and harsh. In demanding that Bohmermann be immediately punished for his action, the Turkish government denounced the satirical poem as a “serious crime against humanity…that crossed all lines of indecency” as well as an insult to all Turkish people’s honor. For her part, German chancellor Angela Merkel (under pressure to preserve her country’s refugee deal and overall fragile relations with Turkey) also condemned the poem as “deliberately offending,” and noted that Germany’s freedom of the media was not an unlimited right. Sensing that it had stepped into it, Germany’s ZDF, the public broadcaster that carries the comedian’s talk show, yanked the video from its website as well as on YouTube.

In contemporary America, it is taken for granted that something like the Bohmermann situation cannot happen here and indeed that is true. Thanks to the First Amendment’s prescription for “uninhibited, robust and wide-open” debate on matters of public concern, it is difficult to imagine any situation where a contemporary American comedian can be arrested and charged for the content of their comedy. Usually, if it should happen that some foreign leader doesn’t like a particular joke made by some American comedian, well, tough luck! No wonder it is said that the First Amendment is the comedian’s best friend and that America is the freest place on earth where a person can do comedy, gadflies like Bohmermann included.

Yet, in perspective, the American cultural landscape wasn’t always such a danger-free zone for any comedian who would push the envelope and thereby ruffle neatly arranged feathers or step on sensitive toes. The legendary American comedian Lenny Bruce is remembered as much for his heroic advocacy of free speech as for the tragic price he paid for doing so. Bruce was the classic iconoclast who never hesitated to attack the conventions of the American society of his time in a bid to expose what he considered as their hypocrisy, whether the conventions concerned religion, sexuality, race, the flag, and more. Consequently, between 1961 and 1964, he was arrested for obscenity in places like San Francisco, Los Angeles, Chicago and New York. The encounter in New York ended in an actual criminal conviction. (By the time he died in August 1966 of a drug overdose, his conviction was yet to be overturned on appeal. He was finally pardoned in 2003 by the governor of New York.) Today, thanks to Lenny Bruce and his leadership in the free speech battles of his era, no American comedian since then has been charged with a crime for the content of their comedy.

Speaking of Bohmermann, it happened that this past fall, the German authorities who had been weighing an indictment against him, opted not to do so, citing lack of evidence. For what it is worth, they claimed that since Bohmermann’s crude poem was simply an example of what would constitute overstepping the boundaries of freedom of opinion rather than him actually expressing his own views about Erdogan, he therefore didn’t violate the law after all. In other words, whatever Bohmermann was doing with his poem was OK as long as he had not expressed his own personal opinion about Erdogan. Now, for anyone who really cares about free expression, the trouble with this kind of reasoning is that Bohmermann was saved from going to jail precisely because he did not in fact (allegedly) express his own personal views about the subject he was dealing with. Translation: as German law sees it, not saying what is on one’s mind is actually the way to avoid trouble and jail. Really? Well, let’s just say that Americans, whether they are comedians or not, simply do not see freedom of expression in this way.

The other intriguing fact here is how even Bohmermann himself perhaps seems not to quite grasp the deeper implication of the prosecutor’s decision. To be sure, he was right (as a free speech advocate) in railing against the authorities for launching the investigation at all as well as for stating that “if a joke triggers a state crisis, it is not the problem of the joke, but of the state.” Only problem is, Bohmermann would have to be living in a place like America where that kind of protection exists as a fact of life for comedians courtesy of the First Amendment. Given the way things actually work in Germany where he lives, it is obvious that as long as this particular law remains unchanged, a joke which triggers a state crisis could indeed land a comedian in jail if that joke happens to be his personal opinion on the subject. Especially when such a joke rubs prickly foreign leaders like Erdogan the wrong way. Not a happy picture!

Still, it isn’t all fun and games in American comedy today and indeed may not be so any time soon. Although nothing quite compares to going to jail for doing a comedy act, as it was in the Lenny Bruce era, it remains true that the current culture of political correctness does present quite a headwind for the advance of American comedy. Where a comedian in the 1960s would have worried about a cop in the audience arresting him for, say, obscenity, today’s comedians rather worry about their act offending the so-called PC police on social media and other forums in the public square. Incidentally, the growing clout of the PC police has caused some famed contemporary comedians like Jerry Seinfeld and Chris Rock to opt to skip doing shows on college campuses where PC seems now to be almost a religion. However, to America’s advantage in the American-German match-up, we’re really talking about the impact of an actual penal law versus a mere social phenomenon that comedians, admittedly, find unpleasant. A night and day difference, it seems. Besides, it’s not as though German comedians themselves also don’t have to worry about PC, just like the Americans. They actually do! Not least because Germany for all its free speech deficiencies is still (get this!) another western society and an advanced democracy that exists in the 21st century.

In the end, the Bohmermann situation in Germany is something that really ought to be a big deal whenever an American comedian counts his or her blessings. For although the impact of PC is something like a rain on the parade, it is still safe to say that compared to other places, including similar western societies like Germany, doing comedy in contemporary America is an experience like no other. As they say, it’s a free country, live in it! And bring the comedy with you!

MARC MARON Plus ADAM CAROLLA: When Patent Trolls Rain on Comedy’s Podcasting Parade

Maron_Carolla_photo1In the comedy industry these days, it seems like more and more people are talking about podcasting. In the new book Comedy Under Attack: the Golden Age and the Headwinds (http://comedyunderattack.com), podcasting was portrayed as one of the hot new things in modern comedy and thanks to his WTF podcast Marc Maron was toasted as its foremost trailblazer. But Maron isn’t the only comedian who has made giant strides in that arena. There is Adam Carolla, too, a comedian who reportedly holds the record for having the “most downloaded podcast” around. For Maron, Carolla and their comedy brethren the podcasting movement had been flourishing in peace until recently when they came under assault by a group of folks who have been referred to, rather disparagingly, as ‘patent trolls’. (By way of simple explanation, ‘patent trolls’ are guys who make their money by registering patents for products or processes that they themselves do not use but would sue other people who actually use those patents for any purposes. In more polite language, they are referred to as ‘Non-Practicing Entities’ or NPEs.)

But, first, here’s the story:

Sometime in early 2013 Maron received a letter from an East Texas company known as Personal Audio informing him that his operation of his podcast show was a violation of their software patent. The message was clear: he needed to either license the patent from them at a fee or face legal consequences. While Carolla didn’t get a [warning/demand] letter: the Personal Audio people actually did hit him harder than they hit Maron when in January 2013 they sued Carolla’s ACE Broadcasting Network over his self-owned podcast ‘The Adam Carolla Show.” Personal Audio is reportedly offering to settle the case against Carolla for $3million. (The company has also gone after comedian Chris Hardwick, the current host of Comedy Central’s @ Midnight, over his ‘Nerdist Podcast’.) By the way, “podcasting”, a term coined from a mix of ‘I-Pod’ and ‘broadcasting’, is a technology that basically allows users to pull down MP3 audio files onto their computers or personal digital audio players (like iPods) from a podcasting website.

And from the look of things, the company (founded by a guy named Jim Logan) isn’t just going around making threats and bloviating about consequences; it actually seems to play pretty hard ball: for instance, in 2011, it got a jury to award it more than $8million against Apple, Inc, on its claim that Apple’s i-Tunes playlists infringed its patent. Personal Audio has also forced big names like Samsung, Motorola, Sirius, Amazon, RIM and others to enter into patent licensing agreements with it after it sued them in patent court; it has also sued NBC and CBS.

Not surprisingly, all this stuff sounds pretty offensive to Maron: “We’re just guys talking on microphones out of our garage…then someone comes out of nowhere and says we owe them money.” For his part, Carolla has dug in his heels and has vowed to fight it out with Personal Audio in court. This past March he launched a fundraising campaign, complete with a promotional video. His “Save our Podcasts Defense Fund” (http://fundanything.com/patent troll) aims to raise about $1.5 million for the battle. (As of April 24, they’d raised more than $363,000 and counting.) That same month of March, Carolla and Maron organized a show in Redondo Beach, California, attended by talk show host Jimmy Kimmel, Drew Pinsky and others, in support of Carolla’s legal defense fund.

To be sure, patent trolls are a matter of big concern to comedians. For starters, alongside all the blessings of social media, podcasting has become a quite valuable new tool for comedians today in comedy’s “golden age”. Podcasts are pretty cheap to produce and distribute and pretty much anyone with a computer and microphone can manage to get around to doing it. To comedians, the chance to reach their audiences in this way is very appealing. Needless to say, if the patent trolls win and licensing fees become the norm, then podcasters will have to pass on the cost of licensing fees to their listeners. Long story short, this whole thing creates the risk of a new ‘pay-to-play’ model that will quickly transform the economics of podcasting to the disadvantage of comedians.

And there’s another reason: People have talked about ‘p.c.’ (political correctness) and have knocked the so-called ‘pc-brigade’ as one of the major forces out there today that are giving comedy big-time hell. On their own, patent trolls may be less visible to many people as a threat to comedy, but the threat they pose to comedy is no laughing matter: for instance, unlike the pc – brigade who are merely pursuing their vision of a good society, the patent trolls are in it only for the money and in so doing they are reaching their hands more directly into the pockets of comedians. Even worse, they are threatening to curtail the further growth of podcasting in the comedy industry, especially among the newbies and the less established comics who have less money and almost certainly lack the clout of guys like Maron and Carolla.

Aside from the comedy industry, patent trolls have also been a real pain for people trying to make a living in other sectors of the economy like coffee houses, hotels, restaurants, supermarkets, real estate agents and so on. And surely the activities of these patent trolls have done them no favors in the court of public opinion. For instance, one of the most aggressive patent trolls out there is one called Innovatio IP Ventures from California, which claims a large number of patents in the operation of Wi-Fi services.

In a rather brazen tactical decision, Innovatio simply chose to ignore the product manufacturers (like Cisco and Motorola) and instead went directly after hotels, coffee houses and other end users of Wi-Fi, threatening them with expensive lawsuits and demanding a couple thousands of dollars in licensing fees. Soon after it was formed in early 2011 by a California lawyer named Noel Whitley, the company reportedly sent over 8,000 demand letters to end users across all 50 states literally asking them to pay up or come to court. The calculation here is clear and simple: end users who are not sophisticated about patent matters would rather pay a few thousand dollars than engage in very expensive patent litigation in federal court.

Not surprisingly, many commentators out there have openly lamented how much things have gone off the rails and so far away from the original goal of the patent law which was to reward genuine inventors like Thomas Edison and Nikola Tesla (think the light bulb, cameras, motion pictures and more) rather than guys like Jim Logan and Noel Whitley, who seem to be smiling to the banks today with bundles of (other people’s) money.

In the overall scheme of things, guys like Maron who are merely “talking on microphones out of their garages…” to their friends and fans are obviously just “end-users,” just like all the hotels, coffee houses and real estate agents who are getting hammered by patent trolls. And Carolla, too, of course! As one might expect, these mere end –users wouldn’t likely know much about all the technical mumbo-jumbo of patent-speak, much less the complexities of high-wattage patent litigation in federal court. Ironically, these hapless end-users are the very people that the patent trolls have chosen to confront rather than the big manufacturers and patent vendors who have both the technical knowledge and the money to fight back against the patent trolls.

But exactly what does the patent law do to help the little guy, Maron and Carolla included? Well, not a heck of a lot, at the present time at least. To the contrary, the patent trolls seem to be having a field day. The federal courts have said that when patent trolls go after anybody, including poor end users, the patent trolls are – get this!- exercising their First Amendment ‘right to petition’ the government. Innovatio played this hand brilliantly in 2001 when it beat back Cisco’s attempt to protect its end users from Innovatio’s ‘smash-and- grab’ tactic. What a funny new way for a patent troll to use the First Amendment, the American comedian’s best friend, of all things.

So, just where do matters stand now for Maron, Carolla and the comedy industry in the battle against patent trolls? Well, here’s the thing: First, Carolla had no choice but to do something since he’s already been sued. Yet his decision to push back pretty hard is a smart move in itself. For instance, if they were to enter into settlement negotiations later on, his hardball tactics so far would make him a stronger player in those negotiations with Personal Audio. Certainly, it would be wise for him not to take the settlement option off the table because complex litigation such as this one can seem like an unruly horse galloping to an unknown destination. Plus, Personal Audio’s case may not be so weak in the end; after all, its prior encounters with powerful entities like Samsung and Motorola so far have proven that Personal Audio can actually win games. In short, no one knows the strength of Personal Audio’s case yet. So, it’s not yet party time for the podcasters.

Yet, going forward, the comedy industry ought to do more than just express support for Carolla and here’s why: Even if Carolla wins, it doesn’t necessarily mean that Personal Audio will shut down or that its lawyers won’t find some obscure ground to go after any other podcasters. (Not unless, of course, its patent is declared invalid.) Generally, the result of any litigation binds only the parties involved. Therefore, in the long run, the best solution is to change the law so that every podcaster is protected against patent trolls for good.

The expected game changer here is the proposed legislation called ‘the Innovation Act,’ which passed the House of Representatives in December last year. Concerning the menace of patent trolls, the best part of the law for comedians is the provision that protects end users by allowing the big tech guys like Cisco, for instance, to step into the shoes of their customers and take on the patent trolls on their behalf. The proposed law would also discourage the activities of patent trolls by forcing anyone who files a patent lawsuit to pay the legal fees and other costs of the guy who ends up winning the case.

And then there is the part that requires people filing such lawsuits to lay out their cases in such great detail that then makes it real easy for the courts to dismiss the cases pretty early on in the process if the cases have no merits. Unlike the situation we have today, the new law will force people filing such patent lawsuits to spend time and money in doing some pretty extensive research on their patent infringement claims. And they are required to have all this stuff ready right when they walk through the courthouse doors. To be sure, guys like Maron and Carolla would be sitting pretty today if the proposed new law were already in place.

Yet, no matter how this thing ends for Maron and Carolla, there’s a lot more to the fight than just the two comedy gentlemen. In reality, for the reasons stated above, the entire comedy industry has a dog in this fight, indeed a big one. And Carolla was correct when he said: ‘They are suing me, but they are coming after you next.’ To be sure, this problem with the patent trolls isn’t going to go away on its own, especially because the patent trolls have already seen the dollar signs and will do all they can to stick around for the money. To solve the problem, the patent trolls will have to be forced out of the game.

In the end, the one great thing to come out of the Maron and Carolla situation is that their struggle has focused the comedy industry’s attention in a big way on this worsening problem of patent trolls. As end users of the podcasting technology, the comedy industry will do well to join forces with other interest groups in the ongoing campaign in Washington to pass the Innovation Act. This is where guys like Maron, Carolla, Jimmy Kimmel, Joe Rogan, Chris Hardwick, and Greg Fitzsimmons, plus all the other comedy superstars with a large microphone, who are supporting Maron and Carolla in their anti-patent troll campaign, can help get things done, And this is especially important now that both foot dragging in the Senate and election-year politics are threatening to slow things down in Washington with this bill. It’s time to finish the job by helping to push the bill across the finish line. That’s a smarter and more reliable way to save the podcasting space from further assault by patent trolls. Litigation alone just won’t cut it, even if the patent trolls lose. The law will have to change.