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.