What’s in a joke? Assessing humor in free speech jurisprudence

The Forum for Humor and the Law and the Columbia Global Freedom of Expression published the first edition of What’s in a Joke? Assessing Humor in Free Speech Jurisprudence, a publication that draws from human rights legislation as well as from humour scholarship within humanities or social sciences to provide a toolkit aimed at fostering a balanced approach to the assessment of humorous expressions – in a broad sense in terms of genre. Although primarily aimed at legal professionals, particularly within the judiciary, the toolkit constitutes an insightful contribution for other stakeholders operating in the protection of humour and satire, whether in advocacy groups or as policymakers.

First, the authors provide a working definition of humour as a form of non-bona-fide – not literal nor merely informative – communication entirely or partly geared towards mirth or amusement, conveyed through a range of mechanisms that configure a combination of genres that is expressed through different modes of expression – from verbal language to visuals; within this context, the broad range of functions that humour serves – including that of conveying social or political criticism through satire – is emphasised, as the authors also point out how its relevance is recognised in relevant landmark cases, including within the ECtHR. In this contexts, the authors highlight how, although there tends to be a higher degree of protection in instances of humorous speech deemed to be a contribution to public interest debate, legitimate forms of provocative or dissacrating humour – that might be deemed more unwarranted – might be penalised from a clear categorisation or hierarchisation of humorous speech, which might be particularly controversial since humour creators are common first victims of crackdowns in backsliding contexts; this phenomenon is also the object of cited reports from Cartooning for Peace and Cartoonists Rights and Index on Censorship .

In the second section, the authors cover more in detail the relevant international freedom of expression standards, among which its disciplining within the International Covenant on Civil and Political Rights - ICCPR, with specific reference to its Artt.19, 20, recalling as the sole legitimate grounds for restrictions of the freedom of expression reside in the respect of the rights and reputation of in the protection of either national security, public order, public health or morals. In particular, Art.19 requires said restriction to occur within law prescription, to pursue at least one of the legitimate aims established in Artt.19, 20, while also constituting a necessary – in a democratic society – as well as proportionate measure.

After recalling the legal triptych of lawfulness, legitimate aim, proportionality expressed in the three-part test, the authors explore the distinction between humor ridiculing or targeting private or public figures – which should bear a higher degree of tolerance to criticism or ridicule compared to the former – while also clarifying laws protecting reputations from which said restrictions draw should focus more on countering false statements harmful to social standing rather than i.e. subjective feelings. In this logic, the authors stress on how the legitimate aim of laws on public morals should in fact remain within the context of protection from incitement to hostility, discrimination, or violence – Art.20 ICCPR – and subject to the high threshold set out in the 2012 Rabat Plan of Action criteria for a speech act to qualify as incitement.

The authors then focus more on the challenges and tools for humour interpretation in free speech cases, providing insights into inherent features of humorous speech, the relevance of its heavy reliance on context, as well as into the standard of the «reasonable person» and its application in practice.

The starting point is the concept of incongruity – an «implausible deviation» from standard logic or cultural framework, norms, or expectations – as a core indicator of humorous intent within judicial context in contrast with factual defamation or threats, which however is not deemed sufficient to reasonably exclude harmful interpretations. The authors hence explore the various related figurative devices deviating from the predominantly literal communication that characterises other forms of discourse, such as exaggeration, attenuation or allusion, negation through irony or sarcasm, metaphor, or «carnivalesque reversal» through the association of serious topics with profane themes.

The authors emphasise the importance of the context on which the interpretation of humour speech act markedly relies on as a constitutive feature, providing a list of relative contextual dimensions as follows:

• historical and socio-political circumstances prevalent at the time of production and dissemination of the humorous speech act the case pertains to;
• its specific communicative setting;
• power relations derived from the status of the parts – speaker, target;
• «intersectionality», as the interplay of identity or status factors – gender, race, disability, etc.
• extent of dissemination;
• purpose of communication – as i.e. cases of satire would require particular care for its association of artistic purposes with political ones;
• «co-textual cues», «verbal or non-verbal hints» that surround the disputed humorous expression;
• «intertextuality», as the dialogue or intersection with previous works from the same speaker or author through a set of reference types;
• «prior ethos», as the external perception of the speaker from i.e. reputation, character traits, which might overlap with character evidence or prior conduct, in direct relation with the reconstruction of intent;
• genre of the humorous act in analysis, in alignment with its own set of conventions, typical language, rules – although less frequently examined in «humour-related jurisprudence»

As for the «reasonable person» standard, of common use among courts in order to determine potential interpretations from a reasonable or average recipient particularly in defamation cases, the authors also provide practical examples while highlighting the potential criticalities in the definition of the «reasonable person» as well as the necessity to associate the employment of such standard with a context-sensitive impact assessment in relation to the humorous speech act in question.

The section also explores the complexities of online humour – with particular reference to incitement – underscoring the cruciality of evaluating the contextual elements for properly discerning incitement instances from i.e. reprehensible content that remains in principle preferable to respond to through means «other than legal restrictions», from content moderation to counterspeech or through raising awareness.

The fourth section, on the other hand, is more focused on intellectual property law, briefly exploring the pertaining relation with freedom of expression in humorous speech, as well as aspects related to generative AI or deepfakes, to then provide an overview of general trends and standards in fields of intellectual property jurisprudence related to humour. As the authors clarify, preserving humorous uses [of intellectual property] is still crucial to prevent the latter from being exploited for censorship. 

In general, the authors highlight the crucial need for a balanced approach that takes account of proportionality factors considering nature and intent of the humorous speech act, whether it contributes to public interest debate, the level of public recognition of the reproduced material, the status of the speaker as well as their prior conduct – which is also to analyse in the right-holder; the dissemination level of the expression and its nature should also be taken into account «alongside the severity of any imposed sanction».

While the other sections are more argumentative, focused on the analysis of humour in specific legal frameworks through the provision of practical guidelines as well as legal examples, the fifth part of the toolkit consists of a glossary, which serves as a reference tool that clarifies the employed terminology assisting the reader in the interpretation of humour in a legal context. In this last section, after a recall to basic explanations of humour as well as of its underlying element of incongruity, concise entries are grouped into categories exploring respectively humour genres, mechanisms, functions, the concept of mode, medium, their application to humour, concluding with an infographic that offers a graphic outline of this expressly non-exhaustive overview.

Although particularly dense with information and technical notions that are more explicitly aimed at legal professionals, the toolkit effectively serves as an insightful guide for professionals with a different background or operational experience, which might in particular deem of use the last section as a starting point to find the read on, as well as the resort to concrete relevant legal cases for a more precise understanding of the complex interplay between humour, free speech and intellectual property law while gaining a practical perspective on its implications in the assessment of humour in free speech jurisprudence.