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.     

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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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!

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!

BEING LIKE LOUIS CK: The Modern Comedian, Fame, Fortune and the Law

Louis_CK_photo4Comedy today is at a ‘golden age’ and Louis CK is one of the greatest beneficiaries of this new age in comedy, if not perhaps the greatest beneficiary himself. So says the new book “Comedy Under Attack: The Golden Age and the Headwinds.” And Louis doesn’t shy away from acknowledging his good fortune: “The amount I get paid by these promoters is crazy…I could make $100,000 in a night,” he said about two years ago to Maxim magazine. Aside from the big fees he commands when he actually performs his act, Louis CK can also rake in a ton of money from just his massive fame alone. This is what would happen when he, say, endorses a product or licenses other folks to use his name for whatever it can fetch them. And the picture gets even more rosy thanks to the way the law has changed over the past 30 or so years. This means that even after he passes away, the party continues: His daughters or whoever controls his estate can still keep using his fame to make money as if the guy’s still around.

But can anything go wrong with this enviable picture of a gravy train? For instance, suppose folks who are not connected to Louis CK and who do not have his blessing want to get in on the money action anyway by trading on the comedian’s fame, can Louis CK stop such guys? (You can term these guys ‘freeloaders,’ if you like.) Or if he’s no longer around, can his “heirs and assigns” (you know, his kids and other folks to whom he may have given the right to control the use of his fame) stop the freeloaders? Well, the short answer is that, thanks to the ‘free speech’ clause of the First Amendment, these freeloaders can get away with it, if they are smart enough in the way they go about it. Of course, with things like this, the devil is in the details. And the real headache for everyone involved is that we’re not talking about a black-and-white situation by any means.

To be sure, everything we’ve already said above plus whatever we will say below on this subject applies to Louis CK as equally as it does to each of today’s successful or famous comedians.

For starters, the ability of a famous person (or celebrity) to control the use of his name or fame by choosing when to endorse products or to grant licenses to others is called the “right of publicity”. And here we’re dealing with things like the use of the famous person’s name, photo, voice, signature, likeness and anything else about that person’s life that has ‘commercial value’. We usually encounter this right of publicity power when dealing, for instance, with the use of a person’s name in connection with an ad for a product or a service. As part of the celebrity’s control over his publicity package, he can, if he wishes to do so, give or transfer this right to somebody else by way of a contract. In that case, folks who try to mess with this right of publicity will have to answer to the new guy who acquired the right under the contract. In short, the right of publicity is usually so personal to the guy who owns it that if we were talking about goods and services or, let’s say creative works like books and movies, we’ll be using terms like ‘trademark’ and ‘copyright’ instead. Of course, when it comes to the right of publicity, we are dealing with the ‘identity’ of a ‘person’ rather than a ‘thing’, but the very idea of owning something with ‘commercial value’ is the same in the right of publicity situation as it is with the trademark and copyright situations.

There are a number of ways in which a famous person’s right of publicity could be violated by somebody else. The easiest situation is where someone, for instance, uses Louis CK’s name in a product ad without his permission. That obviously would be a violation of his right of publicity and this is something that any bloke on the street could easily understand. Same goes for attaching the man’s name to a comedy show or a music concert that he has no connection with, in hopes of boosting ticket sales from doing so. By the way, it is worth noting that these are the kinds of situations that originally led to the creation of the right of publicity in the first place. In other areas outside comedy, the right of publicity is taken no less seriously: For instance, when someone tried to sell a plastic bust of Martin Luther King, Jr., his family won a lawsuit to put the kibosh to that move. Also, the TV personality Vanna White from Wheel of Fortune was able to stop an ad that mimicked her actions by using a robot wearing a blond wig to turn block letters on a game board. To bring the matter closer home to comedy, somebody who goes out there today, for instance, to use the line “Here’s Johnny,” which evokes “The Tonight Show” with Johnny Carson” will probably be shot down for wrongfully appropriating or taking something of value from Johnny Carson.

In the real world, when somebody violates a famous person’s right of publicity, the usual remedy is a lawsuit that seeks damages and more. The famous person could, for instance, ask for an accounting of the money or profits made from the unauthorized use of his or her name. The court could also hit the offender with an order of punitive damages, attorney’s fees, injunction and more.

Speaking of how courts handle situations where it is alleged that a famous person’s right of publicity has been violated by somebody else, the one case that stands out as a good example is the 2001 case involving The Three Stooges, who were slapstick comedy legends from the 1950s and 1960s. In that case, a California artist reproduced charcoal sketches of the Stooges trio (Moe, Larry and Curly) on lithographs and T-shirts and then offered the drawings for sale to the public. The children of The Three Stooges team then sued the artist for a violation of the right of publicity of the Stooges trio, all of whom had died a long time ago. The court agreed with the children and rejected the artist’s claim that he was exercising his free speech rights under the First Amendment.

In essence, the court said that because the artist’s drawings did not make any kind of ‘creative contribution’ to the likeness of the trio, it just was not the kind of expression that the First Amendment lives to protect. In other words, since the drawings did not add anything new or fresh to the image of the three men, there was therefore no message of any sort in there, which could have been regarded as some kind of ‘expression’ of his free speech rights. As the court saw it, the drawing made by the artist (Gary Saderup) lacked any real creativity and was therefore just a flat-out use of the image or likeness of famous people to make money. Well, it is probably not such a bad idea to note here that although it may not be immediately obvious, there is actually a certain downside to the way the court handled this case: Thanks to this kind of approach, the judges are now the guys deciding what is art and what isn’t art as well as what is creative enough to qualify for free speech protection and what isn’t. Talk about a fuzzy picture and a situation where it is hard to gauge which way the wind is blowing.

Yet, that’s the law here and it is what it is. Incidentally, the way the court decided the Stooges case also answers the question posed above regarding when other folks are allowed to benefit from a celebrity’s fame without his permission. To put the matter in layman’s terms, one can say that if the material in question is ‘creative’ enough that it can somehow be viewed as containing a ‘message’, then chances are that it will be regarded as an ‘expression’ which is protected by the free speech clause of the First Amendment. For instance, if the artist’s drawing in The Three Stooges case would have been presented in a way that perhaps made fun of the three slapstick comics rather than simply reproducing their likeness and offering it for sale, the court likely would have accepted it as a ‘parody,’ which is a form of expression protected under the free speech clause.

Also, it is important to note here, that contrary to a common misconception by many, the fact that a piece of art bearing the likeness of a famous person is offered for sale to the public or even that it is mass produced in several copies does not necessarily mean that the work is not a valid expression of free speech rights. Of course, we all know that somebody who is mass producing copies of an image and offering them for sale is in it for the money. Yet, thanks to the free speech law, he is allowed to do so as long as he is smart and creative enough to give the thing the appearance of some kind of a message. It is said that celebrities have such a large role in peoples’ lives and mean different things to different folks that making use of celebrity images in different ‘creative’ ways is an important form of expression for people. That’s why the courts have, for instance, allowed a painting of golfer Tiger Woods to be sold for money without Woods’ permission;  the courts have also allowed people to sell trading cards that made fun of famous baseball players, again without their permission. To digress a bit here, one might say that comedians, as people who make fun of things in creative ways, just might find this sort of opportunity to be rather interesting.

In the end, one can safely say that when it comes to fame and fortune, the law today offers a changed and still changing landscape to comedians and the wider entertainment community for that matter. The new landscape that has been emerging over the past one generation has two sides to it: thanks to the right of publicity, fame today has been made into something of a ‘property’ right which a celebrity comic can turn into big money at any time. And when he’s no longer around, the celebrity is now allowed to even pass it on his kids and family (just like his car or his house). Yet, thanks this time to the free speech clause of the First Amendment and the whole business about ‘creative expression’, the law also permits some pesky gray areas that make it possible for total strangers to literally ride the coattails of famous comics on their way to grabbing some fortune of their own without anybody’s permission. (Same situation applies to famous entertainers in other fields.)

So, can one say that contemporary superstar comics like Louis CK and others have a fair deal here under the changing law? You bet! Here’s the thing: first, to digress just a bit, it is true that because of the holes in the copyright law, comedy material (their most vital asset) isn’t really protected from joke thieves and so can be stolen rather easily. Yet, when they do hit the fame and are rolling in all the fortune that comes with fame, the law gives today’s comedians the kind of big time protection of their fame and fortune that their predecessors could only have dreamed of.

THE ‘WEDGIE’ COMEDIAN: Crossing the Line Between Comedy and the Jailhouse

charles_ross_photo3Though he’s still pretty young, aspiring comedian Charles Ross not long ago learned a simple lesson he should have known all along: that comedy is only about jokes as long as everyone understands what is happening as a joke even if they may not like the joke. And of course, as long as any funnyman involved stays within the boundary lines of the law. Stepping outside the lines drawn by the law can really push things off a cliff and bring unintended consequences for the jokester, including possibly an unexpected visit to the jailhouse. In other words, a bad joke is one thing, but in the real world out there not everything is regarded as a joke – for instance, giving wedgies to total strangers. (For those who may not be familiar with the term, a ‘wedgie’ occurs when someone’s underpants bunch up between the person’s buttocks. Oftentimes, wedgies are pranks associated with schoolyard bullies and most folks don’t think of the wedgie look as ‘cool’.) But first, here’s what happened:

This past January in Bradenton, Florida, 18-year-old Charles Ross, was arrested by the police and charged with battery after one of the visitors at a movie theater in the city reported to the police that Ross had put his hands on him and had given him a wedgie. According to the police report, the 20-year old complainant alleged that Ross had grabbed him “by the back of his pants and pulled them up hard.” The complainant also stated that while Ross was performing the wedgie on him, Ross had asked him if he wanted to hit him and that by Ross’ arrangement, the whole incident was being filmed. Well, just like the complainant himself, the police were in no mood for jokes either, and so Ross was arrested and locked up overnight before being released on bail the next day and given a court date for his battery charge. The police report also indicated that there had been other victims of Ross’ misconduct who did not have the nerve to press charges because they were simply too embarrassed to do so.

It is not surprising that the police found other victims of Ross actions on the day he was arrested because apparently doing these kinds of stuff was simply the way Ross rolled. He was something of a well known gadfly in the area who shocked unsuspecting strangers with various embarrassing pranks, which were then posted on his YouTube site RossCreations . Some of the pranks he had pulled over time and posted on his site are as follows: kissing total strangers to their total shock and embarrassment; faking ‘trust’ falls with strangers by walking up to them, turning his back toward them and challenging them to catch him as he falls backward with his arms stretched sideways; asking strangers to scratch his back; doing handstands over strangers who were bikini-clad women laying on the beach; plumping himself down on the laps of strangers sitting on park benches; dressing as a pink pig, then running up to people and leaping onto their backs; and many more.

Both Ross and the police put different spins on exactly what Ross does on his YouTube site. While Ross prefers to style his actions as “pranks,” the cops see them as Ross merely “creat[ing] situations in order to harass and annoy people.” Regardless of how anyone sees what he does, Ross’ antics have elevated him to a celebrity on the internet. And, as one might predict, given the times we live in, Ross’ celebrity has grown even higher with his current police trouble: shortly the arrest incident, his YouTube channel reportedly received over 50,000 viewers, taking his total count to well over five million viewers.

As it happens, Ross isn’t the only comedian who mixes his comedy with practical jokes. Others do it too, including even veteran comics. Perhaps many will recall the story from 2010 when comedy legend Richard Belzer jokingly put his hand on the shoulders of an Apple Store employee in Midtown Manhattan. Belzer ended up having to explain to the police why his frolic was not enough to get him arrested and charged with harassment. He was able to talk his way out of the mess with help from the store’s video surveillance recording. So, practical jokes can sometimes get real tricky. And this is what makes this case quite a teachable moment for comedians who don’t confine themselves to doing their act onstage and who try to involve strangers in their act without the prior consent of such strangers. The biggest risk here is that those strangers may not share the comedian’s sense of humor and that’s where the trouble breaks out.

Needless to say, when a comedian is performing onstage, he can pretty much say whatever he wants and he can get away with so much stuff without running into trouble with the lawman. But getting into other people spaces without their consent or, worse, actually touching them takes matters way outside the free speech zone and creates a whole different ball game.

Well, speaking of the law, the charge against Ross here is battery. A person commits battery when he deliberately makes a physical contact with somebody else without any lawful justification. For the physical contact to be regarded as ‘battery’ the touching that occurred has to be rather ‘offensive’ in nature. This of course means that the person who made the contact (or did the touching) did not have the permission or ‘consent’ of the other person to touch that other person’s body; the other thing here is that the person who did the touching did not have any lawful excuse for the touching. One can imagine from this explanation that when a cop, for instance, puts his hand on somebody during an arrest, his power of arrest as a cop gives him his lawful excuse to touch folks in that manner and still not be guilty of battery. This also means that doing things like giving a woman an unwanted kiss can be regarded as battery.

So, where does all this leave Ross and his cop case? Well, this one is pretty easy: the lawman got him! With respect to proving battery, this is the easiest case ever, as Ross himself has done the prosecutor’s job for him: he literally filmed himself committing a crime. In doing so, Ross himself might as well have been an investigator working for the DA’s office. Pretty boneheaded thing to do! Luckily for him, it’s only a misdemeanor battery charge but still he will likely get a criminal record.

In a place like New York, Ross might also be hit with a ‘harassment’ charge for his actions. In this case, the prosecutor is required to show that the accused person intentionally harassed, annoyed or alarmed somebody else by striking, kicking, shoving or making some other physical contact with that other person. Usually cases requiring a person to prove exactly what another person intended to do are tough ones to crack because it’s not that easy to read other people’s minds. Yet for a guy like Ross here, this is pretty cold comfort because there is little doubt from his actions that he intended to do all of those things that the law of harassment says should not be done.

Aside from bringing a police case against him, some of the victims of Ross’ pranks could also have opted to just go after him on their own, in civil court. Here, they’ll be looking to hit him in his wallet by seeking damages against him. The most obvious ground on which to seek damages against him would be ‘battery’ which is also a ‘tort’ or civil wrong. And the requirements for winning a battery case in civil court is pretty much the same as what is required in criminal court, as already described above.

And as long as we’re in civil court, the victims of his prank could also decide to sue him for damages for another tort, which is less commonly talked about than the others perhaps because it is generally harder to make the claim stick with this one. Still, the claim is available. This tort is called ‘intentional infliction of emotional distress.’ And this kind of claim can be filed by any person who alleges that the actions of another person toward him are so outrageous and so way out of the ball park that they simply should not be tolerated in a civilized society. Needless to say, because of the requirement of ‘outrageous’ behavior on the part of the offender, petty annoyances or trifling misbehaviors likely won’t make the cut with this kind of claim. And the standards for judging outrageous behavior are the standards of the community where the thing happened. Well, it is fair to say here that most of the kinds of pranks that Ross pulls on his shocked victims would be considered by most folks to be outrageous whether we’re talking about suburban Bradenton, Florida or even Times Square in New York City.

In the end, cases like this one, although pretty silly when one comes to think about it, can only be a lesson to people concerning where the lines are drawn between doing comedy and invading other people’s lawful space. Ross himself reportedly admitted that this ‘ended up not being one of his best jokes.’ Well, actually, it ain’t even a joke at all. It is flat- out law breaking that certainly exposes him to unnecessary liability. To be sure, dumb stuff like this would sooner have him sitting in jail than becoming a superstar on Comedy Central. So, seriously, it’s time to wise up: Knock it off, already!

*******Author’s Note*** My new book “Comedy Under Attack…” is now available on Amazon and in stores. Please post your comments/reviews on Amazon, Goodreads, Facebook, Twitter and more, and join the raging debate. Make yourself heard!

BRITAIN’S FRANKIE BOYLE: The Meaning of ‘Defamation’ Across the Atlantic

frankie_boyle_photo5Between the way the world thinks of him and the way he doesn’t want anyone to think of him, the whole stuff about reputation seems to loom pretty large in British comedian Frankie Boyle’s world. From all indications, the brash, irreverent comic doesn’t seem to sweat what anyone calls him as long as no one calls him a “racist.” In Boyle’s worldview, for anyone to call him that amounts to something of a declaration of war. And he could hit the hapless aggressor pretty hard in the wallet and set the aggressor back by many thousands of pounds or dollars. At least, in Britain! Just ask the Daily Mirror, one of Britain’s major tabloids, which took a big hit last fall for apparently ‘messing with the wrong marine,’ as the Americans would say. But first, here’s what happened:

On July 19, 2011, the newspaper published an article in which it speculated about Boyle’s chances of returning to his comedy show on Britain’s Channel 4 television station: “Racist comedian Frankie Boyle could soon be returning to TV despite upsetting thousands of viewers with his sick jokes,” began the article, which also claimed that Boyle was “forced to quit” the BBC panel show Mock the Week owing to his brand of comedy. Feeling deeply wounded by the article, Boyle sued the paper for defamation in a London court; he claimed that the article was defamatory and that it brought him into “odium and contempt”─ stock phrases in many a defamation lawsuit. (By the way, to commit “defamation” against a person simply means to say things about that person which tend to damage or otherwise lower that person’s reputation in the community. If those offending words appear in written form, the harm that results is called a “libel,” as in Boyle’s situation.) Boyle claimed in court that just because he plays characters who express racist views doesn’t mean that he himself is a racist. “These are phrases that a racist would use”, Boyle said. “There is no way they are an endorsement of racist terminology. It is the absolute opposite of that.” In support of Boyle’s position, his lawyer stated that it would be ‘political correctness gone mad’ if Boyle were labeled racist for using racial language in his jokes.

For its part, the paper showed no remorse over the publication and instead stuck to its guns, claiming that Boyle was a ‘racist comedian’ who exploited negative stereotypes of black people for ‘cheap laughs.’ In a further slap at Boyle (who writes a column for a rival newspaper The Sun) the Mirror told the jury that if they should find that Boyle had in fact been ‘defamed’, they should merely award him the sum of 45p (forty-five pence), the price of a copy of the Daily Mirror. Ouch! Well, in the end, the jury came back and Boyle got the last laugh as the jury found that the paper had indeed defamed him. As a result, the court awarded Boyle a total sum of more than ₤54,000 (about US$ 80,000-plus) in damages plus court costs against the Daily Mirror.

Yet, as one might expect, considering the close ties between the pop cultures of the Britain and America, not a few folks, especially in the comedy and media worlds, have wondered if Boyle could have won his case so brilliantly if he had brought the defamation lawsuit in America instead. Well, for starters, if Boyle were merely a regular guy who either just drives a cab or works at the post office, his case probably would have gone the same way on both sides of the pond. For example, if Pete defames Joe who is a private person (think an average Joe) and then Pete can’t prove that what he said of Joe was true, then the defense fails and Pete becomes liable to Joe for defamation. But where the situation involves a ‘public figure’ (think a celebrity) then the matter is handled in a different way in each country. And this is where Boyle, who is undoubtedly a ‘public figure,’ would have faced a totally different ball game if the lawsuit would have been brought in the U.S.

It used to be that defamation cases were handled the same way on both sides of the pond until the 1960s when America decided that ‘public officials’ and ‘public figures’ would have to jump more hoops and work much harder than previously before they can win any defamation lawsuit that they choose to bring against anyone, whether a private person or a media organization. This meant that it is no longer just enough that something said about a public official or public figure was not true; a greater amount of fault on the part of the person who made the statement was now required. In short, a public official or public figure who files a defamation suit could still lose the case even if the statement made against him is later shown to be false. Tough stuff!

This new rule is called the ‘actual malice’ test, and two things are required in order for someone to fail the test and thereby become liable for defamation when sued by a public official or a public figure: first, the person must have intentionally made or published the false statement with the knowledge that the statement was false; or second, that the person chose to make or publish the false statement when the circumstances were clearly such that he should have known that the statement he was making or publishing was false. (In this second scenario, you might include situations like someone, for instance, deliberately looking away from another person who is trying to show him that the statement was false; or situations where someone simply chooses to believe some crazy ‘Mickey Mouse’ kind of talk that ‘pigs can fly.’ Instances that come under this second scenario are often regarded as ‘willful blindness.’)

At the time the new rule of ‘actual malice’ was adopted, it was said that the First Amendment which commits America to the principle of ‘uninhibited, robust and wide-open debate’ on matters of public interest or public issues needed the new approach in order to provide greater protection for ‘free speech.’ In the 1964 case where this new rule was established, the New York Times had published an ad put forward by an interest group; the said ad detailed the alleged mistreatment of civil rights activists by the Alabama authorities. It turned out that some of the facts stated in the ad were inaccurate, for example, like how many folks had been arrested; exactly where the police had been positioned on the campus; what particular song the protesters had been singing and more. When the public official in charge of the police sued the New York Times for defamation, America’s High Court said it didn’t matter that these statements of fact were in fact false. The court stated that under the First Amendment, no defamation was in fact committed as long as both the Times and those who paid for the ad didn’t knowingly or intentionally publish the false statements nor did they publish them under circumstances where they clearly should have known that the statements were false.

So, as it happens, Americans are willing to put up with some ‘false’ stuff in order to protect the right to free speech and to preserve their highly prized culture of spirited debate on public affairs.

But exactly why, in Britain, did Boyle win his case against the Daily Mirror? Well, it’s fair to say that the jury simply didn’t buy the defense’s story: they didn’t think it was true that Boyle was a ‘racist’ or that he was ‘forced to quit’ the Mock the Week show because of his racist views. The defense’s style itself could be described as something of a ‘kitchen sink’ strategy that allowed the defense to hedge its bets by playing the kind of hand that both an English lawyer and an American lawyer might choose to play in defending a case like this one. Essentially, the defense claimed that the offending statement was either ‘true’ or was an ‘honest comment on a matter of public interest.’ Interesting tactic: first, to show that the statement was true, the defense trotted out some of Boyle’s quite offensive remarks on the Channel 4 comedy show Tramadol Nights, including the Madeleine McCann crack as well as his Twitter quips about Paralympic athletes. Then the defense came up with the public interest commentary that many an American defamation lawyer would recognize. Pretty smart hedge!

Yet, in hindsight, Boyle’s opponents did not seem to have done themselves any favors with the whole Mock the Week business. It seems like the overall atmosphere at the jury trial tilted against them when they fought for but lost that branch of their case. For example, a witness with firsthand knowledge of the situation actually showed up at the trial to testify that Boyle was not in fact canned from Mock the Week. Even worse for the defense, the witness stated that the show’s producers had hoped that Boyle would make a return appearance on the show in the future. Apparently, the Daily Mirror might have looked better just sticking with general claim of ‘racism’ against Boyle and no more.

But seriously, how would Boyle have fared in an American court? Short answer: Not as well as he did in Britain! Not even close. For starters, America, unlike Britain, is First Amendment territory. So, predictably, the ‘public figure’ business would have been front and center of this kind of case in an American court and with that (you guessed it!) comes the ‘actual malice’ standard as well. All of this would have created massive complications for Boyle and thereby jeopardized his odds of winning. Incidentally, in the British case, the Daily Mirror won a small victory when it got the court to reject Boyle’s claim of ‘malicious falsehood’ in the Mock the Week imbroglio. In an American court, a ruling that there is no malice would be a huge factor that could only weigh down a public figure’s odds of winning a defamation lawsuit against a newspaper which is defending itself on grounds of public interest.

In the end, considering the potential impact of these big issues on everyday life in any society, the Boyle-Daily Mirror case is one of those situations that remind any observer that, ‘special relationship’ aside, Britain and America are still different places after all. As far as comedy goes, America, thanks to the First Amendment, is the best place on earth not only for anyone to be a comedian but also for anyone in the mood to mess with comedians. In our case here, it means that a dude like Boyle, who would say anything about anyone but cannot stand for certain things to be said about him, obviously is living on the right side of the Atlantic ── outside America, that is. For the Daily Mirror, well, living outside America apparently seems like a different ball of wax.


    Author’s Note:

:*** As promised, my new book “Comedy Under Attack…” which covers political correctness and all the big issues in comedy today is now available on and in stores. As a service to comedy, please post your comments about the book on Amazon, Goodreads, Facebook, Twitter and other places, so that together we can drive this ‘hot debate’ even deeper into the public square…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

KATT WILLIAMS: When a comedian’s time onstage may be too small

katt_willliams_photoKatt Williams is a comedian who is no stranger to run-ins with the law and with other folks. And lately, his run of legal troubles have been adding up: he attacked an aspiring rapper on his tour bus at an Oakland hotel and then (two days later) led cops on a high speed chase for reckless driving in Sacramento, California; then he also got sued by his female personal assistant for allegedly punching her at his house and causing her serious and permanent injuries. But for many comedy watchers, there is one particular incident in Williams’ line-up of recent troubles that raises a new kind of question in the way that comedians relate to their fans. And the answer to that question may be something that comics might want to pay attention to. Here’s what happened:

This past November, Williams and events promoter Live Nation collaborated on a comedy gig at the Oracle Arena in Oakland, CA featuring Williams. However, a mere 10 minutes into his set, Williams became provoked by the actions of a heckler and reportedly had a serious meltdown. As the story went, he took off his clothes and challenged the audience to a fight, and then attempted to fight at least three members of the audience. Needless to say, by the time the fracas ended, the show itself was over as well. The fans were not amused one bit. In response, a disappointed audience member named Brian Herline, acting on behalf of all the other audience members who attended the flopped event, filed a lawsuit against both Williams and Live Nation.

For starters, the ‘class action’ nature of this lawsuit is something that should be pretty easy to maintain and Herline and his posse likely won’t have a problem with it. The idea of a class action is designed to allow folks who have suffered a ‘common injury or loss’from a ‘common source’ to pull their resources together in order to obtain whatever relief or remedy they are entitled to get under the law. So, in this case, as long as the audience members (the plaintiffs) keep themselves on the same page, they’ll be just fine. But, of course, if, for instance, some of them are seeking a refund of their ticket price while others are claiming damages for assault and battery, then the lawsuit can no longer survive as a class action. The simple explanation for that would be that if the people bringing the lawsuit together are actually seeking different kinds of remedies from the court, it implies that they probably suffered different kinds of losses as well.

Anyhow, what we have in this case seems like a proper class action in which all the audience members are reportedly seeking unspecified damages for “Katt Williams’ non-performance.” To put it all in layman’s terms, Williams and Live Nation are being sued for not living up to their promise to Herline and the other audience members who attended the event. But what exactly did the comedian and his promoters promise to the audience? Well, first of all, when people talk about ‘promise’ in this way, it implies that there is some sort of agreement between the two sides: the comedian and his promoters on the one part and the audience members on the other part.

In this context, it is fair to say that paying money to see a comedian’s performance may be no different from paying money to see a movie. In the movie case, we can assume that in exchange for the moviegoer’s ticket price, he is promised a chance to see the movie he has paid for. Since the moviegoer’s deal is simply to see the movie, if he happens not to like the movie after he sees it, then tough luck. Of course, if the movie theater does not keep its promise to show him a movie, then the moviegoer is entitled to “rescind” or cancel the contract and receive ‘damages’ in return. Typically, the ‘damages’ he would receive in this situation is the chance to get his ticket price back. Translation: there are two promises in this situation and each promise is the price or ‘consideration’ for the other promise. Simple as that!

Similarly, in the situation involving a comedian and a paying audience, the understanding is that in exchange for the cover charge that the audience pays, they get a chance to see the comedian perform. Clearly, what a comedian’s audience is promised is a chance to see the comedian perform. And just as in the case with the movie, whether or not the comedian’s audience like the performance they get is a different matter altogether. But again, just like the movie theater, the comedian and his promoters must at least deliver a performance. This is where Williams and Live Nation may have a real problem in this case. The big question here is: Did they at least deliver a performance that day considering that Williams went bonkers after just 10 minutes, got mixed up in a fracas and brought the show to an end? Could it be a defense in Williams’ favor that a heckler interfered with the show? Well, the odds are not looking too good for Williams’ side with these questions.

Usually, when a comedian is sued for damages for non-performance in a case like this one, it is essentially a breach of contract action. And in a breach of contract case, the person sued might choose to play the hand that his efforts to deliver the thing he had promised was frustrated by the actions of the person to whom the promise was made. In this case, a guy in Williams’ position might try to say that his attempt to give his performance was frustrated by hecklers who were members of the audience. But will that be a good enough defense? Probably not! Because when the court begins to look at the whole case, part of what it could consider is something called ‘custom or usage’ in the industry – meaning what the usual practice is among comedians at a performance.

As it happens, hecklers are known to be a problem at comedy performances. Yet, as a practical matter, hecklers can always be removed from the venue of a performance, in the same way as somebody trying to disrupt a theater performance on Broadway or someone heckling an invited speaker at a college campus. Besides, a ‘reasonable’ professional comedian would be expected to find a less disruptive way to handle a heckler rather than to take the heckler’s bait, walk off the stage and challenge the audience to fights. In short, considering that Williams’ actions do not seem ‘reasonable’ under the circumstances, especially when judged by the standards of other professional comics in similar situations, the defense of blame-the-heckler likely won’t be available to him.

Still, there may be more to this case by the time the dust settles down: Williams’ problem may not end with just giving back the audience’s ticket prices to them. The part about him not performing as he promised is a matter of contract law. But then, he may have committed a ‘tort’ as well. For instance, any instance of actual fighting with any members of the audience would likely have rendered him liable for the tort of ‘assault and battery’. By definition, an assault occurs whenever one person puts another person in fear of imminent physical contact. On the other hand, a battery occurs where one person actually makes an offensive physical contact with another person without the consent of that other person or without any lawful justification for making that kind of contact.

Well, there seems to be little doubt that none of the audience members at the event consented to Williams’ actions toward them. Plus, it is hard to see what lawful justification (such as, maybe, self defense or something else) that Williams could have had for his aggressive actions toward the audience. So, if Williams did stop at merely challenging folks in the audience to fights, as the lawsuit seems to suggest, then he is perhaps liable only for an ‘assault’. In that kind of situation, since he didn’t actually make physical contact with anyone, he’ll be spared the more serious hassle of an actual ‘battery’ claim.

And as long as we are talking about claims against Live Nation for Williams’ actions, the assault and battery claims will not lie against them. Otherwise, to say that Live Nation will be liable for these actions will mean creating “vicarious liability” against them for the actions of Williams. ‘Vicarious liability’ is normally reserved for situations where one person controls and directs the actions of another person such as the kind of situations that exists between a master and a servant or between an employer and an employee.

In the case we have here, it is clear that even though Live Nation brought Williams to the show, Williams was not an employee or servant of Live Nation. This means that he was not subject to their control and direction in the way he did his job. So, as a professional comedian, Williams remained an ‘independent contractor’ throughout the event. (An independent contactor is a guy who decides the ways and means of doing his job.) Actions like going offstage and threatening to fight folks in the audience is an “intentional” act and the law will not hold promoters like Live Nation liable for the intentional wrongdoing of an ‘independent contractor.’

This case is also kind of unique for another reason. For example, this is a case where a comedian is being sued for what the comedian does at a performance rather than what he says onstage. Obviously, saying and doing stuff are two different things: What a comic “says” onstage enjoys free speech protection. However, what an irate comic decides to “do” at a performance, whether onstage or offstage, is a different matter altogether. And this is one big reason why Williams is in such a weak position in this case: when he went offstage in a fighting mood, he lost all the normal protections that a comedian would normally enjoy for what he ‘says’ while onstage. His ‘free speech’ protections deserted him.

Needless to say, whatever the temptation, it is never a good idea for any comedian to get offstage and confront an audience. One of the biggest things the comedian would lose in such a situation is the protection of First Amendment. As matters stand here, Williams’ position in this lawsuit isn’t a pretty one. His best move ought to be to find a way to settle this one and just move on.

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

JERRY SEINFELD: A comedian’s lesson from a defamation case

A few years ago, star comedian Jerry Seinfeld’s family spent quite a bit of time in court and with lawyers. First, his wife gets sued for plagiarizing (or copying) somebody else’s cookbook. Then Seinfeld himself gets sued for talking about the lawsuit filed against his wife when he appeared on David Letterman’s show. And it is the same person that is suing them the whole time. In the end, though, the Seinfelds got the last laugh: the wife beat back the lawsuit against her and then another court sided with Seinfeld in denying that he committed defamation against Missy Chase Lapine, the woman who had sued them.

Here’s what happened: Around 2007, Lapine sued Jessica Seinfeld (Jerry’s wife), for plagiarism, claiming that Seinfeld’s cookbook “Deceptively Delicious”, which dealt with sneaking pureed vegetables into kids’ foods was copied from her own cookbook “The Sneaky Chef.” The case ended up getting dismissed because the court said that the two books were different enough from each other and that sneaking pureed stuff into kids’ foods wasn’t such a brand new idea after all. (The back story here is that publisher HarperCollins rejected Lapine’s book twice before picking up Seinfeld’s own book and helping her promote it on Oprah’s show. The book later turned into a hit.) Afterwards, that same year, Seinfeld himself appeared on The Late Show with David Letterman and without mentioning Lapine by name, said some unflattering things about her, including using such words as “wacko”,” stalker” and “nut job”. At one point, Seinfeld had said: “We’re sorry that she’s angry and hysterical and because she’s a three-name woman. She has three names. And if you read history, many of the three-named people do become assassins. Mark David Chapman. And you know, James Earl Ray. That’s what concerns me.” Then Lapine followed that up with a defamation lawsuit against him, claiming that Seinfeld’s use of the words “wacko”, “stalker” “nut job” and “assassin” when referring to her during his appearance on The Late Show amounted to defamation.

Well, the court didn’t agree with her and Seinfeld’s folks celebrated their good day in court. “Today’s decision is a complete victory for Jerry, and also a victory for the First Amendment and the right of comedians to tell jokes,” said Orin Snyder, Seinfeld’s lawyer. The gloating of Seinfeld’s lawyer aside, the defamation part of the court battle is the one that offers up a few good lessons to comedians on just how much space the law allows them to swing their arms when talking about other folks.

For starters, “context” is a big deal in a defamation case, especially because a typical defamation case tries to make the point that somebody else’s false statement of fact had damaged the reputation of the person that is bringing the lawsuit. Since we are dealing with a statement of fact, it means that what the other person [the offender] said must be the kind of statement that can be shown to be true or false. If the statement is false, then the person making the statement is liable for defamation. But then again, a statement about somebody can either be a statement of fact or a statement of opinion. If the statement can be seen as a statement of opinion, then there is no defamation. And this is where the “context” (or in layman’s language the “circumstances”) makes all the difference.

And whenever the law looks at the “context” of the statement, it does not do so through the eyes (or point of view) of the person suing or even the person being sued. Rather it looks at the statement through the eyes of what is known as a “reasonable person” in the community, and this is usually someone who would be unbiased, owing to the fact that he is not involved with any of the parties in the case.

And when a comedian is being sued for something he said, the whole talk of “context” and the difference between “fact” and “opinion” becomes an even bigger deal. As one might expect, comedians, more than any other group of folks out there, would be likely to benefit from this kind of analysis. The simple reason is that comedians are jokesters trying to draw a laugh and most people understand them to be just trying to draw a laugh. And in Seinfeld’s case he obviously got the full benefit of being a comedian, and a well known one at that. In this controversy, everything was in a good place for Seinfeld: he was a comedian by profession; he was appearing on an entertainment show dominated by comedy and hosted by a well-known comedian and he was speaking before a late-night audience looking to be entertained, including those watching at home.

Now, how is a reasonable person supposed to look at statements made in such a “circumstance”? Well, the court applied the “context” test, and flat out said that no reasonable viewer “would have believed that Seinfeld’s statements were conveying facts about Lapine”. The court added that no viewer could have regarded Seinfeld’s statement as an accusation that Lapine was a would-be assassin or was in any way dangerous. Long story short, the court concluded that Seinfeld’s statement on the Late Show were simply statements of ‘opinion’ and not of ‘fact’.

Well, that was the end of the road for Lapine’s defamation claim and it offered yet another proof of how hard it is to make a defamation case stick against a comedian, thanks to the First Amendment and the right of free speech. But does it mean that somebody can’t win a defamation claim against a comedian? Simple answer here is that, as hard as it may be, and despite their advantages in defamation court, comedians can still be found liable for defamation because, just like other citizens, they can sometimes slip up on a banana peel. To be sure, the First Amendment does not give anyone the license to break the law. When it comes to defamation, the general rule is that a person is not allowed to murder another person’s reputation in jest. And here, comedians stand in the same shoes as everyone else.

And again, “context” or “circumstances” play a big role on the flip side, and we’re talking about the same “context” factor that often allows comedians to beat most defamation raps. Thus, when the context or circumstances of the statement make it look like the comedian is stating a “fact” about somebody else, then the comedian will be liable for defamation if that statement of fact happens to be “false” and also damages the other person’s reputation in the community. In such a case, just because the comedian accompanied the statement with a joke will not save him from being liable in defamation. So, the line will be crossed when the humor or joke is simply being used to mask or hide an attempt to injure somebody else’s reputation. To be clear, we are talking only about statements of facts here. And, by the way, if the statement of fact happens to be true, then the comedian or whoever made the statement will be protected from liability, just like in any other defamation case. And of course, as already noted above, when the statement is a matter of opinion, then the comedian will not be liable.

In Seinfeld’s case, looking at everything from the eyes of a reasonable person, the court simply didn’t buy the narrative that the comedian was making a statement of fact about Lapine or that he was expressing anything other than his own personal opinion about Lapine. None of those situations are enough to make him liable for defamation. Yet, just because a person was appearing on a comedy or entertainment talk show doesn’t necessarily mean that they won’t ever be found liable for defamation. They can still get in trouble for defamation, as happened in July last year in Australia when a comedian named Mick Molloy joked on a sports show that a married female politician had slept with a former football player. The court described the broadcast as an attack on a woman’s “self-respect and dignity” and rejected the defense that the “humorous context” of the show suggested that that the joke was not meant to be taken literally. The court then slapped a fine on the TV station for making the broadcast.

In the end, the real lesson from the Seinfeld case is that comedians are indeed allowed a lot of room for maneuver when it comes to defamation. And thanks to the First Amendment, that room is much larger in America than every place else. Yet, while comedians have wiggle room to say an awful lot about other folks, they don’t have the kind of room that allows them to say just about anything. A lot of room and un-limited room are two different things. In perspective, because Seinfeld as a celebrity comedian has the sort of media connections and pretty big microphone that Lapine did not have, maybe it was bad manners and a case of unfair play on his part to have knocked his adversary on the Late Show, a national forum where she had no opportunity to hit back at him. Perhaps some folks might even feel that he acted a little like a schoolyard bully toward her. Yet, fair or not, Seinfeld was still operating within the large room space available to comedians in the American public square. Long story short, what he did doesn’t amount to defamation in law.