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Wednesday 11 April 2018

Further freedoms: Comedy, Defamation and Truth in Art

Continuing from the discussion on comedy and offense, I recently found out about the stand-up comedian Louise Reay getting sued by her ex-husband, for a stand-up show about totalitarianism and the Chinese government that included a joke or 'bit' (apparently two minutes of material in a fifty minute show), that the ex-husband took offense to and is therefore suing her for defamation and breach of privacy.

I’m conflicted about this, because I do see the argument against controlling what people can say, but there’s also the impetus on the person to take personal responsibility, to check what they’re saying and how it might be interpreted or the context it is used in, but then you might say, “How could anything be shocking or new or provocative? What’s wrong with someone being purposely vile?” Some performance art, made to outrage sensibilities is actually a good thing (and considered great art) it’s pushing us towards something else that shows a different perspective. The problem is that we don’t know if it’s worthwhile, so we shouldn’t stop it (before it’s time), unless it is 'obviously' offensive, but then maybe someone’s overreaction to a lewd joke might comparable only on a scale to the reaction to want to ban what are more rightly considered offensive images like child pornography.

Some see banning topics from public discourse as being “just like the Nazis” and totalitarian itself, but this is a weak argument I would suggest. Being stopped from making racist remarks isn’t the same as being a fascist. The argument though is to stop language that is not merely offensive (that is itself not illegal and I would agree in defending the right for people to actively use offensive language in context) but that it also leads to directly or indirectly effecting another's personal safety, well-being, or advocates removing their human rights. That is to say, it is not just your opinion that what you have heard is offensive (a perspective) but rather that it can be shown or proved to have been meant deliberately to help (directly or indirectly) disadvantage you or place you in a situation that results in marginalisation, discrimination, or encourages other negative bias and potentially violence.

However, the ability to see how negative language or 'just words' could lead to more than just hurt feelings is apparently incredibly difficult for some people. Perhaps this is the privilege that the Left are so often talking about?

Take your pick of recent or not-so-recent examples of 'borderline' racist language being used, I'm thinking of the recent Heineken advert controversy, but you can use your own. The response to this tends to go a little like this:

“Why’s this racist? I’m not black; therefore I cannot see why it could be racist.”

This is normally the first step towards the very common response that you can find all over the internet in just about every comments section:

“People just get offended. People are too easily upset.” (on purpose, i.e. they are acting or exaggerating).

Which is, actually something that I would agree with, because those people that are too easily upset include the people who feel the need to go on the internet to complain and say, “Well I’m upset that people are too easily upset, it’s upsetting to me how easily upset everyone else is. I take offensive in other people taking offense.” And so on and so on.

People have different backgrounds, different worldviews shaped by their experience, maybe have similar experiences and come up with different responses because of their backgrounds and because they’re wrong... no, because they’re different people. They are sometimes wrong, obviously, when dealing with a matter of definite facts or logical analysis and they just haven’t done that, they’ve just gone with the gut. Hence, a lot of our current problems, are caused by people just are going with the gut. For example, off-the-cuff political remarks that would previously have been challenged are taken as political fact.

The threat to free speech is not; from the Right’s perspective the Left, and from the Left’s perspective the Right, because when everyone is too busy slinging mud at each other and not looking at the laws, then nothing’s really getting challenged, then the laws keep changing, at the time no one seemed that concerned about the Snoopers’ Charter, and this gets us back towards the heightened level of control and influence a certain few companies (Facebook) have over our lives, either directly (via advertising) or indirectly (influencing political parties and media).

But to return to the initial topic that we have more direct contact and control over.

Reay's offensive language, that ‘attacked’ her ex-husband, was part of a comedy show, it was intended as entertainment. The insult was already part of the performance. Did this include private data? However, this has now been removed from the routine in agreement with the ex-husband's lawyers and no copies or recordings have been made so it no longer ‘exists’ and we cannot answer this.

If we’re going to say that the ex-husband should or does win the court case, does that mean that you can’t insult anyone in a stand-up show, without some sort of consent? His argument could be, “she didn’t ask me whether I wanted to be referenced/used as material in the show.” So, if I sit in the front row and a stand-up makes fun of me for looking like a twat (fairly likely, as I do) can I then sue them? Or would it instead be thrown out as I choose to be at the show, and that’s consent to participate, which that seems fair.

What about offensive jokes about a wider general group? Jokes about; Muslims, Jews, Gays, Blacks etc. Could you as a member of one of those groups sue the comedian for not asking for your personal consent? Who gives the consent for a joke about a religion, or a country, or ginger people, and who’s making that distinction? Without the possibility of consent given at a singular level, does this mean we should be more or less sensitive about the jokes we made and the language we use? Well, not to sound like a broken record, but context is the guide. Calling a collection of developing countries "shitholes" for example, is different when one is the POTUS than when one is not. Indeed, one could think of a situation where that phrase would be a joke rather than merely an insult masquerading as a joke.

And if this is true for individuals, what about institutions? You can (I think) criticise an institution (fairly) under freedom of speech (in certain conditions and in the appropriate context).

However, if you can’t make a mocking/defaming performance about somebody without them knowing about it and/or consenting to it in some way, that seems fine. Maybe then, Reay does deserve to lose the case, as much as I want to defend the right of comedy to be pushing boundaries.

[Side Quest: a related example #1]
Kathy Griffin, appeared in an image apparently holding Trump’s severed head, much offense was taken (especially by Trump and his supporters) and it was widely condemned. However, although an individual, Trump is also a public figure and part of a wider institution, whereas she is a comedian and not a member of ISIS. She is not ‘really’ threatening to kill him or incite violence against him, if Trump can also say “...although the second amendment people, maybe there is...” (Taken as a threat against Hillary Clinton who wanted to ‘take away their guns’) and that was explained as a joke after the fact, and if Trump as a politician can have that excuse then surely Griffin as a comedian has more of a claim to the ‘it was only a joke’ defense. However, there wasn’t a legal case against her, she wasn’t sued for defamation, and Trump instead insulted her, stoked resentment from his support and unleashed a wave of negative attention (with no comeback).

[Side Quest: a related example #2]
Sarah Silverman, once made a joke that she had been raped by Joe Franklin (in 2005 docu-comedy film 'The Aristocrats'). Discounting the fact that she now says she would no longer make a similar joke, this piece is so obviously a joke, it is about a famous off-colour joke and is interpreted and performed by one hundred well-known comedians. However, at the time, Joe Franklin (a famous elderly presenter) was 'not amused' and had allegedly considered a lawsuit against Silverman. Despite Silverman's straight-faced presentation of "Joe Franklin raped me" it could not be said to be without it's context and it could further be argued that it had no "actual malice" which is key to a claim of defamation.

To move us towards a conclusion, does Reay deserve to be sued? Even if we disagree with the action or the motivation of the ex-husband, what then is the alternative? What are our limits of 'free expression'? Many internet commentators seem all to willing to state that Reay has made "false allegations." Has she? How do they know? She has not confirmed this. On her gofundme page, which she started to raise her legal fees she says, "I accused him of abusing me in my show."

Another similar allegation is that Reay was personally insulting whereas Meechan's 'Nazi pug' was "only a joke!" This strikes me as a failure to identify one's own personal prejudices, because as described you could reverse that statement, Reay only made a joke about her recent breakup whereas Meechan insulted all Jews. It's just a question of belief and perspective. Let's try and keep it to the law and facts, where possible.

To continue this comparison, whereas Reay has offended a singular individal, Meechan has offended a general audience. In both cases you might say (and some do) that they (those offended) are purposely taking offense, but when it's a particular group with a well-known recent history then it seems more difficult to quantify. Why indeed choose the holocaust? If Meechan wanted to pick something horrific then history has plenty of examples, why pick the most commonly mentioned 'pop-cultural' description of the 'worst thing to have happened'. Certainly in numbers there's the 'Great Leap Forward' famines in China (15-45 million dead), or the Rwandan Genocide, or Armenian Genocide, or massacres the UK has had a part in; Indian (e.g. Amritsar), Northern Ireland (Bloody Sunday) and so on. But that wasn't his point, he was being a lazy troll, and lazy trolls go after the most obvious targets.

The problem also lies with the law, especially for Reay, in that it does not deny or take account for the person's emotions in bringing the case. The ex-husband is obviously motivated by 'hurt feelings' and yet the law cannot mediate for that. As for Meechan, are people just saying that they're upset about something that happened in the 1940's, is this merely manufactored offense? Well, if the world was totally free of anti-semitism and being Jewish meant that that did not carry a potential for negative biased treatment by others, then we could say that this is merely a historical offense, but it is clearly not the case (cf. Labour's current problem with anti-semitism and the ongoing difficulty of people to separate the critism of the Israeli government's actions with the reputation of all Jewish people world-wide, i.e. conflating anti-zionism with anti-semitism). One person might be exaggarating, pretending, or motivated by revenge, but the entire Jewish people? Perhaps one person (from a 'generalised' audience) could be pretending to take more offense, but can you really say that when anti-semitism is a real ongoing thing in the world? Unless we also deny anti-semitism as a thing. Oh wait, Neo-Nazis do that too!

I'll make a final summary of both of these threads of thought once both respective court cases have concluded, but I find it difficult (for different reasons) to find either Reay or Meechan not guilty and yet I still want to say that neither is entirely to blame. Further, that there is a time and place for willingly offensive language in our society, mediated by forethought and attention to context.