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.