A hard case for free-speech advocates

February 21, 2021 • 12:30 pm

If you read this site even cursorily, you’ll know that I’m pretty much what they call a “hard-liner” on free speech. That is, I adhere to the Constitution’s First Amendment, which (with important exceptions) stipulates that the government cannot prevent you from speaking as a citizen. The exceptions, as carved out by American courts over the years, include harassment in the workplace, false advertising, defamation (deliberately lying with intent to harm), speech intended and liable to create imminent violence, and so on. I can’t think of a single form of speech that the courts haven’t already dealt with that should be prohibited. I don’t adhere to European blasphemy or “hate speech” laws, for instance: I think that Holocaust denialism should be allowed and that people should be able to say “gas the Jews”, so long as there aren’t Jews, a gas chamber, and an angry mob at hand.

Moreover, I go further, arguing that even private organizations should go as far as they can in allowing the kind of speech permitted by the First Amendment. For example, I think all colleges should adhere to what public colleges and universities must already adhere to: First-Amendment freedoms.  Facebook and Twitter, as far as they can, should do likewise. Nevertheless, I recognize that in some cases private organizations can and should be able to restrict speech. It wouldn’t do, for example, for a business to allow its employees to hurl racial slurs at customers.

So here’s a hard case for me, one that gave me pause. It involves a Canadian comedian, Quebecois Mike Ward, making fun of a disabled kid as part of his act. For that, Ward is now facing judgment by Canada’s Supreme Court. Click on the screenshot to read. 

The article notes that Canada, like the U.S., has pretty broad speech laws, but it also has “hate speech laws” against “identifiable groups” and, at least in Quebec, a “right to dignity”. In the case of the disabled kid, Jérémy Gabriel, these rights came into conflict. The minority group in question is the disabled, and the dignity attacked was Gabriel’s, as comedian Ward made fun of him in his act.

About a decade ago, the comedian Mike Ward, of Quebec, mocked the voice of a well-known disabled teenage singer in a standup routine, roasting him for being off-key, making fun of his hearing aid and calling him “ugly.” But he said he had defended the boy to others because he would soon die. When the teen didn’t die of his illness, the comedian joked, he tried to drown him.

Here’s Gabriel’s disability:

Mr. Gabriel has Treacher Collins syndrome, a rare congenital disease characterized by skull and facial deformities. He was born deaf and received a hearing aid implant at age 6. At age 8, he captured hearts across Quebec after singing the national anthem at a Montreal Canadiens hockey game. He went on to meet Celine Dion in Las Vegas, serenade Pope Benedict XVI at the Vatican and write an autobiography.

Gabriel is thus a public figure, which to some makes him less immune to mockery. I have to admit that Ward’s comedy crossed the line for me, as I don’t find it funny at all. It’s mean-spirited. But that’s a different question from whether what he said was illegal. Remember that comedians often cross the line to make a point. Sarah Silverman, Lenny Bruce, and Dave Chappelle are just three. Chappelle, in fact, often goes after other black people, like Jussie Smollett, using the n-word, and that’s legal in the U.S. (the piece on Smollett, at the link, is also very funny). Silverman, I believe, has made fun of the aged, and perhaps the disabled. A lot of American comedy would, it seems, violate Canada’s “hate speech” and “right to dignity” laws.

The mockery of Gabriel was part of Ward’s act that also went after other folks:

Mr. Ward, a stand-up comic who has twice won “comedian of the year” in a prestigious Quebec comedy award show, has appeared on television internationally, and is known for his trenchant comedic style. In 2008, his joke about a 9-year-old girl who was abducted spurred death threats against him.

The Supreme Court case took root in 2010, when the comedian used his act to make fun of people in Quebec seen as being above criticism, and targeted celebrities like Celine Dion. He also targeted Mr. Gabriel and, among other jokes, made fun of his hearing aid, calling him “the kid with the subwoofer” on his head. The show was performed hundreds of times between 2010 and 2013, and disseminated online.

And Gabriel said that he was harmed by Ward’s mockery:

Mr. Gabriel, now a 24-year-old political science student in Quebec City, said in an interview that the comedy routine — and the raucous laughter it provoked — destroyed his self-esteem during difficult teenage years when he was already grappling with being disabled. As a result of the routine, he said he was bullied at school, and became depressed and suicidal, while his parents were crushed. He said that after his complaint against Mr. Ward, he also received death threats from the comedian’s fans.

“You are already dealing with prejudices when you have a disability and the process of self-acceptance is even harder when you are a teenager,” he said. “It became a thousand times harder when people were laughing at the idea of me dying. I felt like my life was worth less than others.”

I don’t doubt that Gabriel experienced harm as he describes. But bullying by others was not the intention of Ward, so this isn’t equivalent to the comedian harassing him personally and repeatedly. Further, Ward was a public figure, and making fun of public figures is a regular trope of comedy. Usually it’s not for a disability, but remember that Trump, in his inadvertent Presidential comedy act, made fun of a disabled reporter and was not prosecuted.  If one went after Justin Trudeau in a nasty way—and one could!—it could deprive him of his “right to dignity,” even if Trudeau was not a member of an “identifiable group.”  But perhaps if someone in Newfoundland made fun of Quebecois, that would be a “hate crime.” I don’t really know how it works in Canada.

At any rate, 9 years ago Gabriel’s family filed a complaint against Ward for breaching the human rights code of Quebec, and the commission found Ward culpable for breaching Gabriel’s dignity, ordering Ward to pay him $35,000 (Canadian) and his family $7000. Ward appealed, and the appellate court upheld the decision except for eliminating the damages given to Gabriel’s family. Ward then appealed to Canada’s Supreme Court, which has heard the case and will rule soon.

Note that other comedians have equally odious aspects of their acts, none of which I think should be illegal:

In the United States, Lenny Bruce was labeled a “sick comic” for his expletive-laced routines, and in 1961 he was arrested on obscenity charges in San Francisco. His defiance helped to clear the way for other iconoclastic comedians.

In France, the comedian Dieudonné M’bala M’bala has been repeatedly charged with violating anti-hate laws. He is widely associated with an inverted Nazi salute known as the quenelle. In 2013, he lamented that a prominent Jewish journalist had not died in “the gas chambers.”

As a secular Jew, I find that disgusting bigotry, but it’s not and shouldn’t be illegal.

Canadian comedians are upset, of course, because if the Supreme Court upholds the verdict, it puts comedy on a slippery slope. Remember, the offense Ward committed wasn’t hate speech, but the “right to dignity.” In my view, nobody has a “right to dignity”—at least, not a right to immune from mockery, which is what that right appears to comprise. Once you define a “right” in that sense, there’s no stopping anybody from bringing lawsuits. It would be the death of substantive comedy.

Granted, Ward’s making fun of Gabriel was reprehensible. It served no comedic purpose that I can see, and was mean spirited. And yes, it did harm Gabriel, but I don’t think that Ward intended the bullying and threats to ensue.

Ward may be found guilty under Canadian law, but he wouldn’t be under American law. And, in my own judgment, though what Ward did was vile and not in the least humorous, that’s what people have said about comedians like Lenny Bruce for years. A nasty and uncalled-for joke, for sure; speech worthy of censorship and punishment, no. Not in my view.

90 thoughts on “A hard case for free-speech advocates

  1. This comedian appears to have singled out one particular individual. I guess this is the dilemma of one person v. a group of people – wherein a Lenny Bruce joke against one group is perceived as somehow a comic, non specific unrealistic commentary on something in a passing way.

    Sigh….

    I think this “comic” – which I do not find humorous in the least – it is actually inducing tears in my eyes – should be met with the full force of counter free speech. It is sad, that it is allowed, but it will serve as a clear demonstration, and unite people.

  2. Having a “right to dignity” implicitly means I have a symmetric legal obligation to “dignify” a person I despise.

    “Dignity: the state or quality of being worthy of honor or respect.”

    “Dignify: to give distinction to : ENNOBLE.” [Merriam-Webster]

    I am sorry but I have no inherent duty to treat (dignify) some slime mold like Ted Cruz “with dignity.”

    This type of idea is basically the product of the psychologically immature.

    (Apologies to slime molds.)

    1. Hell’s bells, if ever anything pushed the envelope as an affront to someone’s “dignity,” I should think it would be the parody Campari ad that appeared in Hustler magazine, suggesting that Jerry Falwell gained his initial carnal experience in an outhouse with his mother.

      A unanimous SCOTUS — hardly the hippest, most humorous group one might hope to encounter — determined that even THAT was protected by the Free Speech clause of the First Amendment.

      1. Flynt (who died a couple of weeks ago) ran that spoof ad only after Falwell had said from the pulpit that AIDS was sent to destroy the sinful, Flynt having lost friends from AIDS.

        Flynt was also paralyzed because he stood up for free speech.

        Going after a hate preacher like Falwell is a lot different than some random handicapped guy.

        1. So you’re suggesting the laws be based on the perceived virtue of the victim?

          Can you propose a law that draws a bright line in this regard — one that can be applied readily and consistently by humorists, police, prosecutors, judges, and juries?

          Or is it simply a sliding-scale, I-know-it-when-I-see-it situation? That type of standard invites arbitrary and capricious enforcement, thereby encouraging people simply to shut up rather than face uncertain punishment.

          1. I agree with you Ken that the comedian’s joke should be legal.

            I do perhaps think situations like this should make us think carefully whether the ‘public figure’ concept should be applied to kids. Absolutely there are famous kids, but given their less mature state, likely lesser ability to handle stress and social criticism, etc., it’s reasonable to argue that even if they put themselves in the spotlight, they may not fully understand what they are doing or what the consequences are. If the kid can’t sign a contract and his parents have to do it for him, then the parents not the kid are the ones who are signing up for fame and the consequences of it. This would also obviously apply even more to the kidnapped girl, since ‘famous because she was kidnapped’ is not something anyone chooses.

            Ward should absolutely be allowed to make jokes about people who are ‘above reproach.’ Goring the sacred cow is pretty much the definition of speech that should be protected. And if they are considered socially above reproach in part because of a disability, then that’s part of the goring. Such speech might be offensive, but should be legal. The only issue here I see which merits a legal or ethical discussion is the question of whether a 9-year-old (or 14-year old) should be treated as an adult when it comes to being considered a public figure. And whether their choice to do so (i.e. singing for the Queen vs. being kidnapped) should make a difference in that assessment.

            1. I don’t think it quite works like that. Shirley Temple was a famous person as a child. Nobody knew who her parents were. It would have been a pretty unhappy situation, IMO, if one was unable in 1938 to make a joke about her. (Not that I know of any such jokes.)

  3. Intent is important but not necessary to establish guilt of a crime. If I kill someone driving my car while intoxicated, the fact that I didn’t intend to do so doesn’t get me off the hook.

    1. Intent is often necessary to establish guilt of a crime. It depends on the crime. For example, if you intentionally kill someone while driving drunk (or not), that’s a more serious crime than unintentionally killing someone while driving drunk, and intent is a necessary element of that more serious crime. Many crimes require intent.

      1. The point is that “often” isn’t “always”. I don’t know, in this particular case what Canadian law requires but negligence is very often enough to get you a sentence.

    2. Nearly every crime anywhere in the United States requires proof of a culpable mental state (or so-called “mens rea“) — be it “intent” or “knowledge” or “recklessness” or “negligence” (to take them in what is generally the descending order of blameworthiness).

      There are a few crimes that do not require a culpable mental state — known as “strict liability” offenses — but these are usually regulatory offenses, often involving corporations, where the potential for public harm is great, such as environmental offenses. The rationale is that the offending company is the party best positioned to prevent the crime, so ought to be held strictly liable for its occurrence.

  4. An obnoxious statement, no matter how insulting, is no excuse for extending to politicians the authority to decide what can be said, and whether someone can go to jail for saying it.

    1. Agreed DrBrydon. We’re returning to an age when the ruling class determines what is acceptable speech and behavior. The consequences will be interesting. I suppose i should care more, especially as I am an artist, and employ satire and mockery in my comic operas; yet I find the direction here in the US rather amusing. It’s a return to our country’s puritanical roots. The unintended consequences of this narrowing will be interesting to experience. I’m curious to see what will happen in regard courting behavior of the young and the tendency towards puritanism. back in 1964 a teacher’s assistant came upon me and my girlfriend kissing in the cloak room. We were both 8. The angry pilgrim took me to the principal, Dr Hedwig Pregler, who responded by chastising the assistant teacher with undisguised disesteem. She raised her voice and said, “Where’s Lynn?! Why did you single out Joey?” Then she told her to never do that again, and escorted me and the embarrassed assistant to my class. Nowadays, i think I might have been sent to a reeducation seminar. I look forward to the weirdness that is descending upon us.

  5. I think there needs to be a distinction between free expression and the consequences of free expression. You should be allowed to say what you want but if what you say causes injury to somebody, you should be on the hook for that. If Mr Ward’s speech caused direct physical or psychological harm to Mr Gabriel, he needs to answer for that harm.

    I wouldn’t say Mr Ward is responsible for the bullying or the death threats though. He made the remarks in the context of a comedy routine and as such they were not intended seriously. I don’t think he should carry the can for other people’s malevolence.

    Mr Ward sounds like a bit of an arsehole, but I really don’t think that should be made illegal – there’s not enough space in the prisons.

    1. If Mr Ward’s speech caused direct physical or psychological harm to Mr Gabriel, he needs to answer for that harm.

      But if an ex-Muslim causes “psychological harm” to a Muslim by criticising Islam, should they “answer” for it?

      [Though having said that, I think that picking on an individual, named, disabled child is pretty despicable — though it should perhaps not be illegal.]

      1. Scarring a whole community versus an individual.

        I had never heard of comedian, the plaintive or the condition. I suppose this has brought some awareness.

  6. Such shock humour reminds me of the Scottish comedian Frankie Boyle, known for numerous controversies around his jokes in the past. Ironically, he’s gone a bit woke now, though he always defined himself as further left than Chomsky. He went after Ricky Gervais for Gervais’ jokes mocking self-ID or something, which was interesting coming from a man one of whose most famous jokes involved making fun of a celebrity’s disabled kid… From Wikipedia:

    ‘In December 2010, both Katie Price (a.k.a. Jordan) and Peter Andre were said to have been left “absolutely disgusted and sickened” by a joke that was made on Frankie Boyle’s Tramadol Nights about Price’s heavily disabled son, Harvey. On the show, Boyle said: “Apparently Jordan and Peter Andre are fighting each other over custody of Harvey. Well eventually one of them will lose … and have to keep him.” Then he added: “I have a theory that Jordan married a cage fighter (Alex Reid) because she needed someone strong enough to stop Harvey from fucking her.”’

    https://en.wikipedia.org/wiki/Frankie_Boyle#Harvey_Price

    Looks like he was accused of causing playground bullying too…

    Anyway, none of it should be illegal. But it is ironic that Boyle ‘called out’ Gervais for punching down or whatever given his own past…

    1. I doubt that Mr Boyle will survive the shortly to be enacted Hate Crime Bill currently going through the devolved Scottish legislature. A great pit in my opinion. However, it would be hard to find any organisation with such a highly developed sense of humour bypass as the Scottish National Party, currently the majority party in the Scottish Government.

  7. I think that the public figure argument is a bit problematic if the figure is very young. Mr. Gabriel was 13 when this started. His public-figureness should be differentiated from an adult public figure.

    1. Watching the delivery, then reading the English translation (supplied by someone in the comments section) I have now changed my mind, as it wasn’t nearly as bad as had imagined it could be. But I wouldn’t have laughed either.

      Wouldn’t the laughter from the individual audience members be the real ones to sue? Had the joke bombed completely, Ward might have dropped it from the act.

  8. I agree that the concept of being a public figure somehow making one a more legitimate target is flawed. I think this assumes that a) the public figure ‘knew what they were getting into’ when they made themselves public, and b) they should somehow have developed a thicker skin.

    None of these apply to children as scepticalhippo points out. And what if you have only been a public figure for a day?

  9. A “right to dignity” law reminds me of Thailand imprisoning people for disrespecting the King.

    I wonder if those who support such a rule also think that Trump has a “right to dignity” regarding all public comment about him?

  10. Chrissake, isn’t it punishment enough that, on top of his handicap, this poor kid had to meet both Celine Dion and Pope Benedict?

    This case is gut-wrenching, sure, but it isn’t a hard legally: everything Monsieur Ward said ought to constitute protected speech. I haven’t heard his routine (and needn’t to come to a legal conclusion), but if it’s as bad as it sounds, he deserves every drop of public opprobrium that can be heaped his way way. But no government has any business censoring or punishing him. Period.

  11. The idea that a so-called comedian gets laughs and makes a living with this kind of humor is what should bother all of us. It is kind of like the comedian with mostly nothing but profanity coming out of his mouth. If that gets laughs then there is something wrong with the audience. If you can elect something like a Trump, there is deep problems with the voters. Going after the comedian is the wrong end of the snake.

  12. The problems with a “right to dignity” remind me of the recent “respect” vs. “tolerate” debate at the University of Cambridge, which concerned ideas rather than persons. (The advocates of “tolerate” won in that case.) Perhaps there is a personal equivalent of “toleration”? Perhaps “dignity” in some sense short of “respect” and “honor”?

    GCM

  13. [Ward] is known for his trenchant comedic style. In 2008, his joke about a 9-year-old girl who was abducted spurred death threats against him.

    Hell, one of the funniest, most trenchant routines I ever saw was the late, great comedian Patrice O’Neal riffing off the tragic disappearance of Natalee Holloway:

  14. Jokes like this that punch way, way down are the worst kind of humour, but it shouldn’t be criminalized, so the SCC must overturn the conviction. The best result would be for this guy to get blacklisted from comedy clubs and have to find a different line of work.

  15. “Punching down” is never a good look for a comedian, so while Mike Ward may well have been within his free speech rights, he likely deserves any opprobrium or loss of ticket sales etc. if his fans disapprove of the “joke”.

    Here in the UK, comedian Frankie Boyle got into a similar situation over tasteless jokes he made about the disabled child of “Jordan”/Katie Price and Peter Andre: https://www.theguardian.com/media/2010/dec/10/frankie-boyle-katie-price. The parents are both beyond ridicule and very worthy of mockery, but not their poor kid.

    Edit: Oops, not sure how I missed Daniel’s comment about Frankie Boyle at #8 above – apologies.

  16. It strikes me that limiting speech legally, much like “wokeness”, is a response to the endless, constant fountain of cruelty that pervades social media and politics. While it is true that the most effective response to the cruelty and hatred and shock is more speech, rebuttal, and reasoned response, it gets to the point where most people just want it to go away. We don’t want to have to keep putting that much energy into constantly responding to toxicity.

    I believe that the hatemongers have more free time than productive, decent people. If your time is spent hanging out on the internet, and you want to be “important” and get noticed, what better way than to be attention-gettingly cruel. If your time is spent working, being with your kids, thinking of ways to make life better and putting energy into making that happen, research, and other positive pursuits, you don’t want to have to deal with stabbing meanness when you just want to go online, hang out with your friends, and read the weather report. You want it to go away.

    I read someone who described the atmosphere of hate as “soul-sucking”. Great description.

    L

  17. “Further, Ward was a public figure, and making fun of public figures is a regular trope of comedy.” Here, you probably meant Gabriel.

    Suppose there are no such “dignity” laws, and as a result everyone could make an antisemitic remark when they pass a jewish-looking person (as identified through a kippah for instance, or even based on antisemitic stereotypes). Imagine you’re that person hearing such remarks every now and then. Would you say it’s something you’d just have to swallow, as a price for freedom of speech?

    Alright. Let’s turn up the hate. Suppose you hear that every time you go outside. Does your view now changes, and there should be a law that protects you through a chilling effect? How do you imagine would that change in law happen, given that apparently, the antisemitism would be such widespread that you hear antisemitic remarks every time you go outside? Will politicians be in the position to act then?

    I see this in a similar vein as making threats against someone, and think it’s related to it. I believe every person has a right to not look constantly over their shoulder in fear of violence. Further, the openess of hateful remarks also normalises the hatred and, as humans are, make it seem more acceptable even to those who don’t feel that way, simply because humans are herd animals who want to fit in.

    I find the right to dignity laws justified, when the country had situations where groups were singled out and dehumanized on a large scale, as it happened in Germany (and actually elsewhere in Europe).

    I see it’s not an easy call to make, as you admit yourself, even though you say of yourself you’re a “hard-liner”. The difficult part for me is that such laws must be narrow and easy to understand. Most groups also have features which are chosen by them, e.g. to worship a warlord, and there is a difference in what is being denigrated, the group as such, or certain features which were “chosen” by them. Hate speech laws cannot protect bad ideas or choices of the group.

    1. The US has laws proscribing stalking and harassment. See, e.g., 18 USC § 2261A. So long as such laws are narrowly tailored to meet that end, they have thus far withstood constitutional challenge.

      1. You’re saying the US law is — in effect — similar to that to European countries, only that it’s filed under “stalking and harassment” in the US what counts as “hate speech” in Europe? (ergo, the only difference is holocaust denialism, which is illegal in several European countries, but not in the US). Is that so?

        1. No. To constitute “stalking” or “harassment,” the activity must be directed at an individual, involve a repeated course of conduct, and be intended to put that individual in fear of physical harm or intended to interfere in his or her day-to-day activities to the point of causing him or her severe emotional distress. What’s being proscribed here is conduct — including verbal conduct — rather than the ideational content of speech. It constitutes “stalking,” for example, to follow someone around screaming at him or her, whether what is being screamed is “I love you” or “I hate you” or nonsense syllables.

          The US Supreme Court has yet to consider the constitutionality of such statutes, but they have generally been upheld by the lower courts. See, e.g., here.

            1. It responds to your hypothetical, “Suppose you hear that every time you go outside.”

              I should think that self-evident.

              1. You didn’t specify that it was a different person making the remark each time. If it were the same person — or a group of persons acting in concert — then they could be be prosecuted under extant US stalking and harassment laws.

                If everyone, or almost everyone, in a society is making such remarks to a person or group of people, then that society is plagued by much deeper underlying problems than what can be addressed through enactment of a criminal statute. That is certainly NOT the case in the United States of America.

  18. In case anyone is interested, comedian Dieudonné M’bala M’bala (that is no joke, that is his real name), known to everybody as “Dieudonné”,with all his anti-semitism, anti Israël speech (very often anti-semitisme in disguise) and inverted nazi salute (the so-called “quenelle”) was once s fierce anti-racism militant and was part for years of a what I would qualify as a brilliant comedic duo with notoriously Jewish comedian (yes, it is a tradition in France too) Élie Semoun.

    When they split, Dieudonné gave us evidence that he might have been teh genious of the two.

    Then, over the years, we witnessed his slow descent into racism, anti-semitism, and so sum it up, a certain form of madness.

    It was like watching a shipwreck in slow motion. It may not be over yet, he may sink deeper again.

    1. I do not believe that Dieudonne changed much. He was always somewhat antisemitic and could just disguise that as banter while working with a Jewish partner. And opposing FN in the 2000s seems so obviously in his ethnic interest that it is a useless measure of racism. He just became more and more interested in bashing the Jews as the years passed. His true views, which are not unusual for someone of his background, were always in plain sight. I guess a lot of liberals (including Semoun) were just naive about him or saw only what they wanted to see.

      1. Well, not an expert, but that is not the way I remember things. I don’t remember him being an anti-semite at the time of his hilarious duo with Élie Sémoun, at least, not until near the end.

        Then, I remember him going through phase of sort of “colour blindness”. I remember him boasting that he had told a Jewish reporter that, to him, “jewish” did not exist. The reporter found that absurd, and told him that was akin to saying that “black” does not exist.
        – There we are.

        At the time, he was not sure whether to keep making a difference between the sexes or saying that it did not exist either.

        Then his descent into racism started.

        As I said, not an expert.

        He was already opposing the FN in the 1990’s. Indeed, that was in his ethnic interest, but that would still be now, yet he had Le Pen being his daughter’s godfather.

  19. You have navigated through this one correctly. Although for his doings, it would not pain me to see this comedians career go over a cliff. This to add to the culture that inhibits others from taking that path as well.
    Shock comedy is a very weird thing. You can emit the most terrible statements about a group or about a particular person, and if done in a way, which is hard to explain, they get a collective roar of approval of an audience. We are such strange monkeys!

    I haven’t understood the argument that public figures must accept more emotional bullying just because they are public figures. Especially those that have done not a whit of harm.

    1. Public figures enjoy fame, we’re jealous,there’s a price that goes with that, they owe us, we own their asses. We have the right to humiliate them in retribution I say !

        1. I am not serious, I was joking. Some people would hold the same speech on earnest. I think tabloid editors would. I think they are samples of animal waste.

    2. To my knowledge, the only area of US law that draws a distinction regarding “public figures” concerns libel/slander/defamation.

      A private individual can bring a civil suit for false statements that do damage to his or her reputation. A public figure — someone who puts themself in the public arena, thereby inviting public scrutiny — can bring a suit for damages only if they can show “actual malice” (viz., that the person being sued for the defamatory statement knew it to be false when made or exercised reckless disregard as to the statement’s veracity).

  20. ‘[T]hat people should be able to say “gas the Jews”, so long as there aren’t Jews, a gas chamber, and an angry mob at hand.’ – Indeed, even in the UK, the Sex Pistols could release the totally tasteless “Belsen was a Gas”:
    https://en.m.wikipedia.org/wiki/Belsen_Was_a_Gas

    Of course, the ignoramuses responsible probably weren’t aware that despite the other horrors that happened there, gas chambers actually didn’t exist at Bergen-Belsen. [Warning: link includes graphic images: https://www.britannica.com/place/Bergen-Belsen ]

  21. “And yes, it did harm Gabriel, but I don’t think that Ward intended the bullying and threats to ensue.” – J. Coyne

    What about the legal concept of negligence in this case? Liability
    can exist for both intentional and negligent conduct.
    Negligence is “a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances,” and “primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.” (Source: https://www.law.cornell.edu/wex/negligence)

    1. I don’t think the outcome was likely to be foreseeable, and you could try all kinds of people for mass shootings in the U.S. based on the fact that the shooters cited them in their manifestos.

      If you have standing, go ahead and try to indict even Trump for negligence in his January 6 speech, which is about as close to your definition as it gets.

      1. The federal incitement to riot statute requires intent, not mere negligence.

        Whether Trump violated this statute regarding the January 6th riot is a close enough question that I think an aggressive prosecutor could secure an indictment (but then, as they saying goes, a grand jury will indict a ham sandwich).

        Still, I would much prefer to see Trump indicted for any of the other myriad crimes he committed both before and during his tenure in office, rather than for incitement, out of concern for making bad First Amendment law.

  22. My suggestion is that we try to err on the side of liberty whenever possible, especially when speech is involved.

    The Guardian published this about Gabriel to sort of contextualize the situation: “I can understand how a long tirade against Gabriel’s ubiquity in the Canadian media might be funny. He’d come to prominence as a frail child who’d been picked to sing for the pope – and then he stayed in the papers, day after day, month after month, endlessly, unjustifiably, like a slightly more deserving Kate Middleton.”

    It appears that Gabriel has also been able to turn that fame into a nice revenue stream. Ward managed, in the shadow of this controversy (or because of it) , to last year win best stand up show, best writing for the stage, best podcast, and comedian of the year at the Quebec comedy awards. That tells me that at least some of the people in Quebec find his work entertaining, or at least are sympathetic towards him.

    My argument when we were discussing which statues and monuments should be destroyed, was that once we get to that point, we have already lost something important. That situation was not resolved once the low hanging fruit was plucked, and now no monument is particularly safe.
    Pivoting to the discussion of which public figures one must not joke about, under penalty of law, seems to be part of the same trend towards becoming the sort of society we are supposed to be better than.

    I guess the freedoms we enjoy do come with the risk that some people might occasionally be offended or insulted, or encounter views that they disagree with. It might be easier to teach people to be a little less fragile. Doing so might also have the advantage of having fewer people feeling like they have to take anxiety meds and antidepressants.

  23. Ideas can precede actions. So if you allow people to say ‘gas the Jews’, then at some point it may happen because of that. It is very naive to think otherwise.

    Of course the causality is complex, and other factors need to be in place for such things to happen, but the idea that violence inciting hate speech should be banned is sound.

  24. I think an important distinction to make is between general free speech, where one expresses ideas for their own merit, and that – AFAIK – this comedian was incentivized by his profession to profit from “interesting”, attention-grabbing material specifically because of the direct reference to a single individual out there in real life.

    Comedians do that all the time, but I think it matters that there is clear career and profit incentives – perhaps for slander or libel. In fact, comedians are regularly having to vet their material.

  25. I guess I’m an extreme defender of Freedom of Speech because, although I have no lack of sympathy for Jeremy Gabriel, I have no hesitation in opining that Mike Ward should be permitted to tell any joke he wants to. I also think the rest of us have every right to exercise our own freedom to stay away from Ward’s shows in droves. In addition, because our freedoms have been under attack from too many directions with cancel culture apparently everywhere, comedians almost have an obligation to push things as far as they can get away with. If Ward can get away with what he says, the speech police will be less inclined to come after your speech and mine.

    I also wonder how different the discussion would be if Ward was similarly disabled and told these same jokes.

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