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.     

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.