Comedy & free speech: Do the offended have rights? (Part 1)

Posted on 08-29-2016 by
Tags: LIT , civilrights

Freedom can suffer a dangerous tunnel vision. It happens when the fight for one freedom censures or devalues a counter freedom.

One of my freedom heroes - The Foundation for Individual Rights in Education (FIRE) - wants comedy audiences to lighten up, to quit taking offense.[1]

But when comedians cry “We have the right to offend” (and they very well do), they can’t turn a blind eye to a listener’s equal right to be offended.

I’ll walk with FIRE to the farthest extremes of free speech.

But FIRE’s forgotten our right to judge that speech.

Comedy shouldn’t insulate against this right.

 Protecting Student Freedoms: A Worthy Fight

FIRE’s mission is to:

defend and sustain individual rights at America’s colleges and universities.

It’s an important mission.

A necessary mission!

Whether in the form of free speech zones or social media censorship, rights on college campuses are under attack.

And according to FIRE, this attack is now bleeding into comedy:

Today, comedy on campus is under attack, as more students (with the help of campus administrators) are demanding comfort and political correctness over open dialogue and creative expression.

 Comedy on Campus

FIRE’s comedy defense is couched as a free speech assault; we’re asked  to “Support Comedy and Free Speech on Campus Today.” This support, or the lack thereof, finds form and substance in FIRE’s recently released documentary, Can We Take a Joke?

Can We Take a Joke? strongly cautions against being funny on college campuses. It sounds the alarm on these collegiate “checks” against super-offensive humor:

  • mob imposed censorship;
  • support groups for offended students;
  • speech codes that punish hostile language and inappropriate jokes .

Campus backlash and its chilling effect form the centerpiece of Can We Take a Joke?. It’s a serious issue for college students; a grave danger to free speech and non-commercial performance.

But swirling around this centerpiece is the documentary’s greater, more universal, question ... Can We Take a Joke?

 Why Did the Chicken Cross the Road? I Don’t Know, but It Ticks Me Off

In touting the documentary, columnist Lenore Skenazy says:

The rollicking new documentary, “Can We Take a Joke?” brings our lust for umbrage into sharp focus. ... Audiences are coming in, sitting down and demanding that comics not say anything crude or cruel. But when my idea of cruel is your idea of hilarious, my super-sensitivity automatically wins.

Confronting this super-sensitivity, Jonathan Rauch, author of Kindly Inquisitors: The New Attacks on Free Thought, says this in Can We Take a Joke?:

Along with the right to speak freely comes a responsibility to have a thick skin. Words can be harmful, but they’re not the same as violence, and they can be countered with other words ....

Yes, super-sensitivity can be a problem, but is it a social problem or a constitutional problem?

In championing the greater world of comedy entertainment, Can We Take a Joke? implies that thickness of skin and audience insensitivity are linchpins to constitutionally protected speech. At the extreme, this is definitely so, as when listener reaction turns violent or chills free speech.

But Can We Take a Joke? doesn’t limit itself to these extremes.

Instead, it adopts an all-or-nothing mentality.

It makes thin-skinned listeners expendable and subservient to comedic expression.

It takes aim at the social problem, and in doing so, it forgets that listeners have rights too.

 Comedy in the Real World

In Can We Take a Joke?, magician Penn Jillette says this about people who take comedic offense:

We don’t have a legal right to not be offended, but you have a social right to avoid things that offend you. [emphasis added]

These two assertions represent the general theme of Can We Take a Joke?.

I love Penn Jillette, though I don’t always agree with him. And here, I don’t agree. There are a couple problems with his statement.

First, the non-right to not be offended doesn’t cancel out our more positive right:

  • The right to be offended.[2]

Speech is a two way street – speaker and listener – and tangled within the freedom to offend (via speech) is the freedom to be offended (by that very speech). “To invite dispute,” as the Supreme Court said in Terminiello v. Chicago, 337 U.S. 1 (U.S. 1949), is a “function of free speech under our system of government.”

Dispute, being a two-person activity, is initiated by the speaker. But speech’s “higher purpose,” as the  Terminiello Court called it, actually depends on the listener’s reaction. These reactions might include:

  • a condition of unrest;
  • dissatisfaction with conditions as they are; and even
  • being stirred to anger (i.e., being offended).

“Speech,” as the Terminiello Court went on to say, “is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”

Without the listener and his or her reaction, speech is neither provocative, nor challenging. Prejudices and preconceptions are left unstruck. Ideas are never pressed for acceptance.

Second, Jillette’s “social right to avoid things that offend you” opens the door to the reverse argument:

  • you have a social right to avoid people you might offend.

Obviously, mine is a close-minded statement, but in the context of ideas, Jillette’s statement is equally close-minded.

If one believes in free speech as a social tool for pressing ideas, how can “a social right to avoid” be anything but anti-free speech?

If one must avoid things that are offensive, offensive ideas can never be pressed, and equally, offensive ideas can never be accepted (the Terminiello reasoning).[3]

 Offensiveness: A One-Way Street?

Another problem with Can We Take a Joke? is in its critical use of the word “offended,” which goes undefined. This raises two questions. In the give-take world of offensive comedy:

  • Is there an unacceptable level for “being offending”?
  • Is there an unacceptable level for “being offensive”?

In terms of the first question, Can We Take a Joke?, without nailing it down, seems to “take offense” to one type of offense – that which is excessive. Examples of this might include:

  • outrage;
  • social media mobs;
  • intimidation; or
  • public protest.

Thus, when the “excessive line” is crossed (arbitrarily, I might add), taking offense becomes unacceptable in the comedy world.

So Can We Take a Joke? draws a line (excessiveness) in the sand for “taking offense.”

But it rejects any such line for “being offensive.”

For example, context, as the be-all and end-all, is offered as a free pass for anything offensive, yet still humorous. [4]  And for the very funny comedian Lisa Campinelli, there is only this single standard for offensive comedy:

If I can’t make it funny, I’m not gonna do it.

A perfectly acceptable standard, except that the same internal compass must be offered to the audience:

If you can’t make offensive funny, I’m not gonna like it.

Think about due process jurisprudence. Without a standard (a line in the sand), the government could be as “offensive” as it wanted – for instance, the police, against your will, could force a doctor to pump your stomach (Rochin v. California, 342 U.S. 165 (U.S. 1952)). To guard against this, the Supreme Court created a standard:

... the substantive component of the Due Process Clause is violated by executive action only when it “can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.” While the measure of what is conscience-shocking is no calibrated yard stick, it does ... "point the way." - Rochin v. California, 342 U.S. 165 (U.S. 1952)

The point isn’t to equate due process with comedy. The point is to show that this standard - conscience-shocking - is an acceptable and very real state of being. [5]

And that’s NOT to say this should be a standard of censorship – NO, NO, NO! I’m simply offering it as a possible line in the sand when judging a listener’s reaction to offensive comedy. 

Personally, offensive comedy doesn’t bother me.  What bothers me is the open-ended accusation that people are “too sensitive” sans the cause; that cause being comedy, which apparently doesn’t need a “too insensitive” line to gauge it.

Comedy & free speech: Do the offended have rights? (Part 2) 


[1] Our constitutional heroes aren’t always right. Take Alexander Hamilton for instance. The hero of the Federalist Papers, he once envisioned a commander-in-chief who, arguably, would’ve ruled as a monarch:

It will be objected probably, that such an Executive [for life] will be an elective Monarch, and will give birth to the tumults which characterize that form of Govt. - Alexander Hamilton

Or James Madison, hero of the Bill of Rights, who was once lukewarm to an enumeration of these rights:

My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice. I have not viewed it in an important light ....  - James Madison

[2] At the very least, one is free to also react in exercising one’s freedom to listen. As the Court recognized in Richmond Newspapers v. Va., 448 U.S. 555 (U.S. 1980):

Free speech carries with it some freedom to listen. "In a variety of contexts this Court has referred to a First Amendment right to 'receive information and ideas."

[3] And without an offended audience, certain free speech challenges, like the flag burning incident in Tex. v. Johnson, 491 U.S. 397 (U.S. 1989), might never become ripe for review. Without an offended audience, there is no “simply because” in this statement from the Johnson Court: 

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. [emphasis added]

This echoes Street v. New York, 394 U.S. 576 (U.S. 1969), in which the Court said:

Under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers. [emphasis added]

[4] To see this in reverse action, consider the Trumpian safety hatch: “It’s just sarcasm”; this is, sanitizing a perceived offense by defining it, after-the-fact, as merely being funny.

[5] Law Professor Sheldon H. Nahmod recently discussed the “shocks the conscience” standard. Speaking to accountability for egregious conduct, Professor Nahmod references a case in which a teacher allegedly abused students through gagging, restraint, and depantsing. 

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