Peter Henein is a litigator at Cozen O’Connor LLP. He specializes in intellectual property, entertainment and product liability disputes.
I have been a commercial litigator for nearly two decades. But I have a confession – before that, I was a professional stand-up comic. My previous and current lives don’t overlap. It is rare that I get to talk about comedy in the context of law (or, for that matter, law in the context of comedy). So when the Supreme Court of Canada recently released Ward v. Quebec – a case involving a stand-up comic ordered by the Quebec Human Rights Tribunal to pay $35,000 to a disabled child celebrity that the comedian had mocked onstage – I inhaled it like a fine wine. Or like a well-structured set-up and punchline.
It is a timely decision given the current “cancel culture” zeitgeist and the controversy around the self-proclaimed GOAT (Greatest of All Time), Dave Chappelle. The comedian’s jokes about queer and trans people in his recent Netflix special The Closer have drawn widespread criticism. A number of Netflix employees protested and walked out. And with Mr. Chappelle coming to Toronto on Nov. 15 to show his new stand-up documentary, the Supreme Court’s decision underlines how relevant the debate is.
The Ward of Ward v. Quebec is a stand-up comic who, between 2010 and 2013, did a show that mocked public figures – or “sacred cows,” as Mike Ward called them. This included a young singer born with Treacher Collins syndrome. Mr. Ward’s jokes were overtly and deliberately mean-spirited. Mr. Ward thought the act connected with his audience but the subject of these jokes – Jérémy Gabriel – did not.
In Ward v. Quebec, the Supreme Court – in a 5:4 split decision – allowed the appeal, which subsequently found that the elements of a discrimination claim under the Quebec Charter of Human Rights and Freedoms had not been established. The majority held that the comedy act – while arguably repugnant – was not discriminatory. Mr. Gabriel did not bring a claim for defamation and, the Court reasoned, the case should not indirectly be treated as such. The minority argued that the stand-up was discriminatory speech that led to actual harm.
While the comedian in me wants to make it clear that I don’t think the jokes were particularly funny, the lawyer in me wants to clarify that that’s beside the point. The legal question isn’t whether the expression in issue was funny, clever, insightful, necessary or particularly relevant; it is whether the jokes were discriminatory. The correct analysis – according to the majority of judges – should focus not on the expression itself or its intent, but rather on the potential harmful effects on third parties.
The perspective of the four judges who wrote the dissenting opinion is succinctly captured in their opening line: “This is an appeal about discriminatory speech that targets a disabled child.” Clearly, they did not bury the lead on where they were going. The jokes, the minority reasoned, were cruel and punched down. They caused actual harm; Mr. Gabriel contemplated suicide.
If nine of the smartest legal minds couldn’t agree on whether a comedian’s jokes are so offensive they deserve cancelling, how can we?
As the majority reasoned, the conundrum that freedom-of-expression cases present is that: “[T]he exercise of freedom of expression presupposes, at the same time that it fosters, society’s tolerance of expression that is unpopular, offensive or repugnant.”
This, really, is kind of the point. Freedom of expression needs to be protected even when it offends, shocks or is quite simply unpopular. Upending “norms” is precisely the point of protecting free speech in a democracy, even if some of the upenders aren’t doing it effectively, politically, to challenge the status quo -- or are just plain offensive. Freedom of expression isn’t just for the most eloquent of us. That is the price we pay. We will hear stuff we find offensive along the way.
It is also important to remember that perspectives on what should be censored and by whom have changed significantly over time. Yesterday’s censored speech can become tomorrow’s pedestrian political observation. The ability to challenge ideas and actively debate is fundamental to a healthy democracy. As a result, even the right to spout offensive speech (short of hate speech) gets the benefit of protection under our laws.
My personal axe to grind is that stand-up comics are often simultaneously touted as clever and dismissed as buffoons. If people like the comic’s opinions, they’re brilliant. If they don’t, the comic is an idiot. In theory, using comedy as a vehicle for engaging in serious discourse is an attractive idea (think Shakespeare’s Fool in King Lear). But jokes hit viscerally first – meaning, your first reaction is to laugh, not analyze the joke critically.
Historically, in North America, comedians were frequently cancelled, silenced, and even incarcerated for challenging or offending the “moral majority.” In the early 1960s, Lenny Bruce was repeatedly arrested on obscenity charges for his outspoken comedy – destroying him to the point that his act was reduced to reading his own court transcripts on stage. In the late 1960s, the sibling comedy duo, The Smothers Brothers, had their variety show literally cancelled owing to their continuous and outspoken criticism of the Vietnam War. Today, most would be offended by the idea that a joke criticizing the government would be censored, but back then the vocal majority thought it was right to silence these ideas. Yet it still happens and can happen. Take for example when, in 2018, comedian Samantha Bee called Ivanka Trump the c-word on her comedy show while criticizing Ms. Trump’s tone-deaf Instagram postings about family in the face of the U.S. government’s separation of refugee children from their parents, she offended a lot of viewers and formally apologized on television the next day, likely in order to avoid suffering the same fate as the Smothers Brothers. And whether or not the coarseness of Ms. Bee’s language offends you, the lawyer in me wants to remind you that that’s not the point. The barometer of offensiveness cannot be how we decide when to protect speech.
The takeaway here is that the government – politicians, police, human rights tribunals, and so on – should not silence opinions that some (or all) may deem offensive. Admittedly, we will be subjected to some duds: ignorant opinions, offensive jokes, meaningless attempts at humour. But there is also this other thing we seem to forget about. Free will. We can choose not to listen, not to buy a record, to change the channel or not read a thing we find offensive.
The question of maintaining the balance between freedom of expression and the harm to society of censorship must be carefully maintained. That’s the lawyer in me speaking. The comic in me just wants to rely on the age-old advice about what jokes stay or get cut from an act: “If it bends, it’s funny. If it breaks, it’s not that funny.” Mr. Ward’s joke broke.
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