Philip Hamburger's Liberal Suppression is nothing if not ambitious, but is it persuasive?
In a bit that was banned from release a few months after 9/11, comedian George Carlin muses on the twisted delight he takes in media coverage of mass casualty events such as famine, natural disasters, and even a sky-is-falling situation. “You know what my favorite disaster would be, and gee, I pray for one of these? An asteroid,” he says. “I’m talking about a big hunk of rock the size of Minnesota . . . screaming through the atmosphere and smashing right into earth,” he pauses, “You can never have too many dead people.”
Carlin’s shtick falls into the well-honoured “edgelord comedian” routine, more recently exemplified by Louis CK and his sordid musings on kids who die of peanut allergies are maybe just being fair victims of natural selection. The Supreme Court of Canada recently came one judicial vote away from deeming offensive jokes by Montreal’s very own edgelord comedian unconstitutional.
Mike Ward, a 48-year old Francophone comedian, performed a routine for several years where he gleefully took jabs at the universally adored “sacred cows” of Quebec’s robust celebrity culture, including Céline Dion (calling her out for being so as ugly as to be “our Susan Boyle” when she was a girl) and other less widely known celebrities.
In the case in question, Ward directed his roasting at Jérémy Gabriel, a 10-year old boy suffering from Treacher Collins syndrome who became a minor singing celebrity in the province, with audiences including the Pope and the Montreal Habs hockey games. Ward jokes that he defended Gabriel’s singing to his friends by the fact that Gabriel would surely die soon, and then was left defenseless years later when Gabriel was still alive—“I even tried to drown him myself, but he won’t die!”
Gabriel filed a complaint with Quebec’s Human Rights Commission, which awarded $35,000 CAD (about $28,000 USD) in damages against Ward for violating Gabriel’s right to dignity. Ward appealed the judgment all the way to the Supreme Court of Canada, where by a 5-4 margin the fine against him was dismissed.
The five majority judges issued a decision that was a robust affirmation of the value and importance of free speech, concluding that the jokes were “nasty and disgraceful” but not discriminatory. The charity I direct, the Canadian Constitution Foundation, intervened at the Supreme Court to argue that the value of free expression should pervade the analysis of all other guaranteed rights, and were pleased to see our submissions adopted by the Court.
Quoting philosopher Joseph Raz, the majority acknowledged that freedom of expression exists to protect speech on the fringes, not mainstream acceptability: “A person’s right to free expression is protected not in order to protect him, but in order to protect a public good, a benefit which respect for the right of free expression brings to all those who live in the society in which it is respected, even those who have no personal interest in their own freedom.”
Ward’s jokes certainly appear tasteless and upsetting in the harsh light of courtroom transcripts: clearly though they were perceived as funny by the audiences, perhaps illuminating an unsavoury truth about human nature. Still, it’s hard to see how the jokes could amount to discrimination on a protected ground: first, Gabriel was targeted based on his celebrity status and not his disability. Second, the comments were part of a dark comedy routine in which Ward himself, and his willingness to say odious things, was properly the object of humour, rather than Gabriel.
The aim of public anti-discrimination laws where speech as opposed to exclusion from jobs, goods, or services—and distinct from defamation law claims between private individuals which protects the right to one’s reputation—is specific and somewhat nebulous. It takes as its departure point something like the philosopher John Rawls’ “original position”: the question the court must ask when determining whether conduct or speech has a discriminatory effect is not whether it caused personal anguish or offence, but whether it was objectively so degrading and so promoting of hateful attitudes that no reasonable member of society would consent to it. It is adjacent to something like incitement to degrade another human being.
The majority adds that “[l]imits on freedom of expression are justified where, in a given context, there are serious reasons to fear harm that is sufficiently specific and cannot be prevented by the discernment and critical judgment of the audience.” In other words context, and the expectation that individuals are sufficiently rational to form moral judgments, matters.
It is for this reason that the most generally accepted forms of censorship have always been tied into moments when public sentiment is the most vulnerable. For example, the German-American filmmaker Robert Goldstein’s Spirit of ’76 depicted atrocities committed by the British in the Revolutionary War. It was released during the period when the US had intervened on the side of the Allies in WWI, and Goldstein was jailed for sedition against the “total moral effort” required in wartime. (The film was destroyed and is considered lost). The George Carlin mass-casualty joke was seen as a lob into a fragile and traumatized post-9/11 psyche. A joke about a beloved disabled child delivered by a comedian whose entire gag is performing as the crude deplorable who utters the unspeakable hardly present the same risks.
The dissent in Ward is a sobering warning of what happens when postmodern discourses, which view law’s primary role as safeguarding against power imbalances, seep into judicial reasoning (as they inevitably do—judges swim in the same cultural waters as the rest of society). The dissent lays out a piercing indictment of Mike Ward, even quoting his reluctance to defend his nasty jokes against a disabled child as evidence of the case against him (“I don’t know, people laugh and then I laugh at them laughing at it,” Ward is quoted as saying by the dissent) and asserting that given the “low public value” of his speech, it really ought not to attract much legal protection. As though “high public value speech” is ever so fraught with controversy as to wind up at the Supreme Court!
Disturbingly, the dissenting judges found that the evidentiary burden must be shifted to Ward to argue why his right to free speech was sufficiently curtailed to outweigh a finding of discrimination. They concluded it wasn’t, and reinstated punitive damages against Ward, noting with approval that it would “deter other people like Ward”—meaning comedians.
The dissent consistently rejects any distinction between words and actions and relies on an opaque claim that offensive words directly motivate real-world harmful actions (though not as directly as something like incitement to violence, which is its own offense). This casual assertion is ubiquitous in cultural justifications for de-platforming controversial speech that falls short of hate speech (which is already criminalized in Canada): the basis for Jordan Peterson’s formal reprimand from the University of Toronto was a bare assertion that his critique of obligatory gender pronouns was causing “violence against members of the transgender community,” thus asserted with a conspicuous lack of occurrence reports or specific incidents.
The Mike Ward case mirrors the recent public controversy over Dave Chappelle’s recent Netflix special The Closer, in which the comedian also takes jabs at liberal pieties—for example, widespread outrage at rapper DaBaby’s homophobic remarks during a performance last July but blithe indifference to the fact that he admitted to shooting and killing a teenager in 2018. In The Closer, Chapelle howls about being “tricked” into calling a trans woman beautiful and compares trans women to white people wearing blackface.
Netflix’s CEO defended the platform’s decision to run the special and denied allegations that it posed a risk of aggravating violence against trans people: “We have a strong belief that content on screen doesn’t directly translate to real-world harm,” Ted Sarandos wrote in a company-wide email. But after about fifty Netflix employees staged a walkout, alleging Chappelle’s comments risked inciting further violence against trans people, Sarandos seemed to fold at least on the face of things, saying he had “screwed up” in not acknowledging the harm towards the trans community, and walking back from his earlier position about a bright line between words and action. Sarandos felt compelled to concede that, in fact, “content on-screen can have an impact in the real world, positive and negative.”
At the end of The Closer, Chappelle reflects on his relationship with Daphne Dorman, a trans woman comedian, even claiming Dorman for his own “tribe” and not for the trans community: “She wasn’t their tribe, she was mine,” he says. “She was a comedian in her soul.” In other words, Chappelle if anything was re-affirming the inherent dignity of trans people as human beings.
Good observational comedy is mordant. It turns norms on their head and speaks the unspeakable- whether as a sort of communal release valve, to reveal hidden hypocrisies, or just to push boundaries. Dark comedy is an important booster shot to a liberal society’s collective immune system, a space in which truisms and collective wisdom are flipped on their heads temporarily. Moreover, maintaining diversity requires tolerating its grimy detritus—the reality that living in a free society means tolerating those who do not share your pieties, sensibilities, or moeurs.