Regardless of whether I’m studying political science or mass communication, the question of how free speech really is always seems to be relevant.
Another free speech debate has been ignited surrounding one of comedian Daniel Tosh’s stints at The Laugh Factory. The Sparknotes version of the story appears to be that Tosh made a joke concerning rape, a female member of the audience verbalized the statement “Rape jokes are never funny” and Tosh’s response appeared to be to make a comment about how funny it could be if said female audience member was gang raped right then. Given that I tend to not have a life, I was clearly not there and am borrowing the chain of events from the women’s blog and general mutterings on the Internet.
Since I see most things from Twitter these days, this only appeared on my radar when Tosh became a trending topic and currently remains one. There’s a lot of factors that seem to be at play with this controversy. Let me go on record with the following:
1. I’m indifferent to Daniel Tosh. I understand that comedians use different material for different purposes. I understand that some of that material may be conventionally distasteful or offensive. I don’t find Daniel Tosh amusing, but I don’t stray away from off-color humor.
2. For the most part, the way people treat religion and politics (as unspeakables) is the way I tend to treat conversations surrounding feminism and women’s rights. For varying reasons, past conversations have made me uncomfortable and I stay away from them. I believe in equality for everyone. Do I think we’re there yet? No. Generally, that’s all I will say on the subject unless I really like you.
The responses to this whole debacle seemed to split evenly between: Tosh should never have said what he said or he has the right to say what he said. All of this seems to operate under the assumption that the event itself is black and white.
Like life, these things are never black and white. The world tends to be shades of gray.
What was the woman doing when she spoke up? She says she was stating an opinion. Tosh thinks he was being heckled. Is there a right answer? Is it even relevant?
I’m not going to get into the discussion on Tosh using rape as material for a comedy show. The fact of the matter remains that through the First Amendment, within reason, he has the right to say what he wants.
The within reason part is where things get tricky.
Not all speech is protected. The Supreme Court has determined that there are several categorical exclusions of the right to free speech, among them an incitement to crime, fighting words and true threats. Generally, if what you intend to say is likely to provoke immediate violence or in some cases reasonable intimidation that may lead to provocation: you can’t say it.
If Tosh’s response to the women’s statement was “Wouldn’t it be funny if that girl got raped, by like, 5 guys right now? Like right now?” as stated in her blog…where does that leave us?
Her blog states that her exit amidst Tosh’s comments was “pretty viscerally terrifying and threatening all the same, even if the actual scenario was unlikely to take place.”
Despite her feelings, the 1969 case of Brandenburg v. Ohio struck down an Ohio statute because the statute was found to broadly prohibit the advocacy of violence rather than preventing likely imminent action. This seems to be where the line is drawn. As the situation is gray, the line seems dotted.
We make distinctions in some areas of media law based on whether an individual is classified as some variation of a public figure. (If I’m remembering my media law class accurately, you can be a public figure, a limited purpose public figure or an involuntary public figure. This has served to alert me that my media law book is missing. I digress.) If you’re considered a public figure, you face a higher burden of proof in defamation cases.
If we make distinctions in one area of media law, should we be applying that concept elsewhere?
In an era, where Celebrity Worship Syndrome is a rising phenomenon in psychology – are we at the point where we should expect public figures to be more conscious of their speech ands its potential effects?