THE WHEELCHAIR COMEDIAN: Between the Jail House and Free Speech

The world of comedy is a weird one that can serve up both big laughs and the occasional puzzle. As things stand, not many people would guess that a crippled comedian in a wheelchair making fun of her disability in a public park would be told she may be breaking the law or that folks helping her to promote her show at the park could go to jail for disorderly conduct. But that’s exactly what happened at a park in Ohio this past May when Ally Bruener, a comedian with muscular dystrophy and her promoter-friend Forest Thomer went to a Cincinnati park to promote her next gig and to steer visitors to her website. With Bruener sitting in a wheelchair at his side, Thomer reportedly went up to a group of folks at an event called “Party at the Park” and asked them if they wanted “to laugh at the crippled girl?” After Thomer said that, Bruener then told the group a joke as well as the place where she’ll be performing her next gig plus her website address.

But apparently the officials at the park were in no mood for jokes and didn’t find the whole thing funny. Soon, Cincinnati police were called and Thomer was arrested and charged with disorderly conduct. He could go to jail for 30 days if the charges against him stick. It is not entirely clear who said what to whom since some of facts are still in dispute. An official at the park claimed that Thomer and Bruener did not walk away when they were asked to move on, but the comedy duo said that cops refused to tell them why Thomer was being arrested. Bruener and Thomer claim that the arrest of Thomer by the police amounts to a violation of their First Amendment free speech rights, especially their right to promote their comedy. “The police are trying to censor us. They’re trying to tell us how we can or can’t promote my comedy,” Bruener said.

Well, there we go again, another day another free speech case. And to be sure, we are indeed in classic free speech territory since we are talking about an activity at a public park and the actions of the police. But aside from the back story as to why Thomer was arrested, the case perhaps is really about when a comic can advertise a gig in a public space such as a park without running afoul of the law. The other way to put this question is to ask how far the government can go in restricting the ability of comedians to promote their gigs at public spaces. And as long as we are talking about free speech and public spaces here, it has to be said that the freedom to promote a comedy event is no different from the freedom to promote any other kind of event, say, a rodeo show or even a ballgame.

So, how far can the government and its agents, such as the police, go in restricting the right of Americans, including comedians, to exercise their right to free speech by promoting their events, goods or services at public places? Well, let’s see what the law on free speech says. For starters, it is important to recognize that a public park represents what is called a “traditional public forum” where the constitution allows the biggest leeway for free speech. To put it in layman terms, a traditional public forum is pretty much the kind of place where folks can expect each other to ‘swing their arms’ as widely as they choose to swing them so long as their arms don’t hit the next person who has the same right to do so without getting hit. A public street or sidewalk would be another great example of a traditional public forum. At the other end of the spectrum are “non-public forums” run by the government, such as prisons or military bases, where the right to free speech is much more limited.

Anyhow, at a public forum like a public park, the kind of restriction that the government can put on speech depends on whether that speech is what is called “political speech or non-commercial speech” or whether the speech in question is “commercial speech or advertising.” In short, if the speech is about advertising a product or service for sale, then it is commercial speech and it enjoys less protection than political speech. A political speech is pretty much any speech that is not advertising a product or service. Political speech receives the greatest protection by the law, especially if they are connected to a discussion or debate about public affairs. When we talk about “protecting” speech in this area, what we mean is that for the government to restrict a “political speech”, the government has to show what the law calls a “compelling state interest.”

This is another way of saying that the government has to show that there is pretty much no other way to protect or serve the public interest than to restrict the speech in question. A good example here would be a case where the police move in to stop a guy whose fiery speech at a public park would likely rile up folks to engage in violence and cause a disturbance of the peace. In that kind of situation, the “compelling state interest” could be that the government is trying to prevent a breakdown of law and order. Aside from these kinds of situations, the police cannot stop somebody from speaking at a public park just because the police don’t like the person’s views or philosophies or even that the police would rather give the platform to another speaker with a different viewpoint. Choosing between speakers in this manner is no business of the police in a free speech nation and the law certainly doesn’t permit that.

But while the government cannot restrict speech in a public park based on the speaker’s views, it can however impose some restrictions as to the time, place and manner in which the speeches can be made. And when dealing with advertising or commercial speech, the government does not have to show a “compelling state interest” in order to restrict advertising. In such a case, all that the government needs to be able to show is that the restriction it is trying to impose is a “reasonable” way to achieve its goals, and also that such restriction does not discriminate against between one advertisement and another. Because advertisements or commercial speech enjoys “less protection” under free speech law, there is no need for the government to show that the restriction it is trying to impose is the only way to protect the public interest.

Then again, sometimes it may happen that the speech in question is a little bit of both advertising and political speech. One good example here might be a case where an ad is offering to provide abortion services at a family planning clinic for a fee. In this situation, one can say that the push to give women the freedom to receive abortion services is the political side of the equation while the offer to charge a fee for rendering the service would fall on the commercial side of the equation. With such cases, because the package also contains political speech, which carries higher protection, the whole case would likely be treated as though we are dealing only with political speech and so the burden on the government will be higher when it attempts to restrict such speech.

So, what’s the deal here and what does all this stuff mean for our case with the comedian in a wheelchair? Well, on the face of it, this may sound like a case where both advertising and political speech are in the mix. First of all, since the crippled comedian Bruener and her friend were trying to promote her gig at the park, we can safely suppose that the whole thing starts out as an advertisement or commercial speech. But the matter does not end there since it also appears that Bruener is trying to use the occasion to make a political statement about her disability. She says she’s using her comedy to break down a stigma in society which considers crippled people as having a mental deficiency. “I want to open the door to the conversation…people don’t expect the crippled girl to talk about it. When I bring it to light, it makes me more comfortable”, Bruener said.

As already noted above, cases of this nature receive the kind of higher protection usually reserved for political speech. Long story short, this means that in order to keep the wheelchair comedian and her friend out of the park in Cincinnati where they were promoting her gig, the government will be required to identify exactly what public interest it is serving by barring them from the park. Also, the government will be required to show that kicking the comedy duo out of the park is only way to promote or serve that public interest. Obviously, this would be a tall mountain for the government to climb. Translation: the odds are mostly in favor of the crippled comic Bruener and her sidekick.

Yet, the government can still win the case if it can show that the crippled comedian and her sidekick violated some restrictions that exist at the park, such as perhaps rules adopted at the park which specifies the time, place or manner of promoting events at the park. Usually the government is allowed to impose such restrictions as long as they apply them to everyone using the park regardless of their views or opinions. If, for instance, the crippled comic and her friend walked into people or shouted obscenities at other park users or did other things that would cause undue annoyance to other users of the park, then they may be violating some time, place and manner restrictions which are imposed on every user of the park. (For whatever it is worth to them, it is interesting to notice that the police have reportedly made these kinds of allegations as part of their case against Thomer.)

One more thing: since we are dealing with the freedom of comedians to advertise their shows, it needs to be said that even if the comedy duo were not in a public park or on the streets, and even if the ad doesn’t involve any political speech at all, it will still not be OK for the government to allow ads from other promoters but refuse to take ads from comedians. Such discrimination will be rejected as “unreasonable” under free speech law, except, of course, if the comedians’ ads happen to be misleading, false or deceptive or would promote unlawful activities. And, to be sure, this is the same test that is adopted for every other ad, whether it’s an ad about comedy or not.

In the end, comedians do enjoy a lot of leeway when they get onstage to do their shtick. But before they arrive onstage, they are bound by the same rules of promoting gigs as other citizens, no more, no less. They cannot be subjected to more restrictions than others just because they are comedians and vice versa.

“Stage Rage” Lee Hurst: Sticking Up for His Brethren

About two years ago, famed British comedian Lee Hurst had a huge meltdown on stage for a reason any comedian would understand: he was trying to protect his “material” from being stolen by others. Except that Hurst just didn’t care how far he had to go to do so, including facing criminal charges. As it happened, Hurst was performing at a pub in Guildford, England, when he spotted someone in the audience who he believed was filming his gig with a cell phone in order to “steal” his material. Hurst angrily stormed off the stage and plunged into the crowd where he grabbed the guy’s cell phone and smashed it up.

Hurst said he acted to protect himself and his brethren of stand-ups. “I am talking on behalf of comedians and the stand-up community…there are thieves among the circuit, sadly… Nobody will protect us, we have to protect ourselves.” Hurst said that stand-up comedians should be protected by the same copyright laws that protect movies.
As it later turned out, the man was just sending a text message on his cell phone and Hurst was convicted and fined for causing criminal damage, plus court costs.

But “joke thieves” are a serious menace in the industry and Hurst is not the only comedian who lives in fear of his material being stolen by joke thieves. American comedians face a similar problem. No one would soon forget that nasty confrontation in a Los Angeles comedy club in February 2007, which was captured on video, in which Joe Rogan accused fellow stand-up Carlos Mencia of stealing material from him and other comedians. Comedian George Lopez later made a similar accusation against Mencia.

For starters, copyright protection would have been the biggest weapon a comedian would have against a joke thief. But the copyright law as it stands today isn’t exactly a knight on a white horse storming out of the gates to stand between the comedian and the thief. For instance, when a stand-up is on his feet at a comedy club doing his shtick before an audience the words of his joke have no copyright protection from joke thieves.

To make the joke thief liable, the comedian would actually need to obtain a formal copyright on those words from the copyright authorities after paying a fee. Even with a copyright, the comedian only seems to get a half-loaf of bread because the law only protects the very words the comedian has copyrighted and nothing more.

This means that as long as the thief avoids using those very words in the copyright, he is able to steal the circumstances and connections that were carefully crafted to give rise to the “kill” lines in the joke. The problem here, especially in the world of comedy, is that lines in a joke make their most meaning when attached to the circumstances or the idea that accompany the words. This gives comedy a smaller degree of protection than what movies get because the actions of characters in a movie and the circumstances surrounding those actions are protected from infringement.

True, many analysts have made a big deal of what they call industry “peer pressure,” which is the sense that honor and good manners among comedians require that no one “steal” material from the other. To be sure, the stand-up community takes this matter pretty seriously and would snub and ostracize comedians who develop a reputation as joke thieves. Sometimes it could be the kiss of death for the career of the particular comedian at fault.

But to think that peer pressure alone can keep a comedian’s “material” out of the hands of a joke thief, who has a chance to steal it and feels he can get away with it, is sort of like assuming that people will avoid sinful behavior for fear of going to hell when they die. More protection ought to be offered against joke thieves.

And the place to begin is the copyright law. Although its goal is protecting original expressions of ideas, the way the copyright law treats what “original” means in the world of comedy ends up leaving comedians with less protection than they need. It just doesn’t go far enough. So, to protect their material from joke thieves, the unfinished business for comedians today is to push for a change in the copyright law to give comedians automatic copyright for material they use in stand-up performances before an audience, and to protect the material in a package, including the circumstances, ideas, and connections that make up the shtick.