Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
What is it about humor that all too often results in situations that decidedly are not a laughing matter?
Free speech in comedy attracts controversy as well as belly laughs, and in the case of two "South Park" television episodes this season that attempted to feature the Prophet Muhammad, even death threats.
A quick review of this ironic “laugh track”: Lenny Bruce’s run-ins with local police over his language in the 1950s and ’60s; CBS’ 1969 cancellation of the Smothers Brothers TV show, with its biting political satire against Presidents Lyndon Johnson and Richard Nixon; George Carlin’s “seven dirty words” stand-up routine that wound up at the heart of a landmark 1978 Supreme Court case; and the post-9/11 flap over Bill Maher’s wise-guy observation about terrorists and courage.
Recently there have been not-so-veiled warnings to “South Park” creators Trey Parker and Matt Stone over episodes featuring Islam’s most-revered figure. And just the other day a comedian successfully thwarted a lawsuit filed by members of her own family over jokes she used onstage about them.
Sunda Croonquist, whose stand-up comedy act makes fun of her background as a “half-black, half-Swedish” woman who marries into a Jewish family, included unflattering references to family members in live performances and on a Web site. Croonquist’s brother- and sister-in-law, and her mother-in-law, said the jokes caused them to suffer public ridicule and emotional distress.
In a lengthy April 30 ruling, U.S. District Judge Mary L. Cooper of New Jersey said the examples in the lawsuit — including Croonquist’s saying her sister-in-law’s voice sounded like “a cat in heat” and her references to her in-laws as “racist” — were just opinions, and therefore protected speech.
Jokes that need to be explained generally lose the punch in their punch lines. Judge Cooper decidedly was not reaching for a chuckle but was voicing a legal maxim when she quoted the reasoning from a 1999 court decision in saying Croonquist’s cat-in-heat joke was “mere colorful, figurative rhetoric that reasonable minds would not take to be factual.”
And opinions, being just that, can’t carry the defamatory weight of facts — a position that protects not just performers but editorial writers, bloggers, preachers, politicians, critics … just about everybody with an opinion.
The First Amendment protects a wide range of remarks related to comedy, from stand-up routines to satire to editorial cartoons to advertising.
Perhaps the most significant First Amendment case touching on humor — involving a public figure, unlike the Croonquist lawsuit — arose in 1983 when Hustler magazine publisher Larry Flynt ran a parody describing the late Rev. Jerry Falwell’s first sexual experience as a drunken, incestuous childhood encounter with his mother in an outhouse.
Flynt successfully fought Falwell’s lawsuit all the way to the U.S. Supreme Court, where in 1988 then-Chief Justice William Rehnquist wrote: “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.”
From “Saturday Night Live” skits and skewers to Jon Stewart’s nightly political commentary-as-comedy on “The Daily Show” to late-night monologues by David Letterman, Jay Leno and others that poke fun and deflate famous egos, humor is one means by which (to use one of SNL’s old gag-lines) we are free to “talk amongst ourselves” as a nation about important issues.
Even the Supreme Court is not immune to parody. The satirical print-and-online publication The Onion, published a “report” on May 3 of a fictitious court ruling, headlined “Supreme Court Upholds Freedom Of Speech In Obscenity-Filled Ruling.” A photo showed a justice flashing a middle-finger gesture purportedly aimed at those who disagreed with her constitutional views. That was accompanied by profanity-laced “comments” by other members of the Court.
Whether the editors’ goal was simply to puncture the Court’s renowned decorum with jokes in bad taste, or to use hyperbole to make a serious point about freedom of expression — or both — The Onion likely has more to fear from critics of its style and manner than from any successful threat of criminal prosecution or civil lawsuits.
And under the First Amendment, that holds true, whether it’s in-laws or Supreme Court justices who are involved. Free speech is no less protected — and no less valuable — when it makes us laugh as well as think.