Microsoft Word - 8 - Little Final V3.docx

JUST A JOKE: DEFAMATORY HUMOR

AND INCONGRUITY’S PROMISE

LAURA E. LITTLE

Can’t take a joke, eh? A little levity is good for body, mind, and soul,

y’know. Suing over THAT little schoolyard jab? I say you’re either “thin-

skinned or a self-important prig . . . .”

I. INTRODUCTION

At what point does a joke become a legal wrong, justifying resort to

defamation law? And at what point must a lawyer tell his or her client to

steer clear of humor—or at least keep jokes focused exclusively on public

figures, officials, and matters of clear public interest? The challenge of

drawing the line between protecting and restricting humor has dogged

United States courts for years. And what a difficult line it is to chart! First,

the line must navigate a stark value clash: the right of individuals and

groups to be free from attack on their property, dignity, and honor versus

the right of individuals to free expression. To make matters more

complicated—in fact, much more complicated—the line must not only

account for, but also respect, the artistry of comedy and its beneficial

contributions to society.

In regulating defamation, American courts deploy a familiar concept

for navigating the line between respecting humor and protecting individual

Beasley School of Law; B.A. 1979, University of Pennsylvania; J.D. 1985 Temple

University School of Law. I am grateful for the excellent research assistance of Theresa

Hearn, Alice Ko, and Jacob Nemon, as well as the helpful comments of my colleague

Professor Jaya Ramji-Nogales. I owe hearty thanks to Professors David Rolph, Barbara

McDonald, and Sally McCausland for their guidance on Australian defamation law, to

Jessica Milner Davis and Robert Phiddian for their insights on Australian humor, and to

Giovannantonio Forabosco for his general guidance on humor theory. This project

benefitted from faculty colloquia I presented on law and humor at University of Sydney, the

Australian National University, and Flinders University (Adelaide) in January and February

2010—as well as Rutgers University Law School in October 2010. Finally, I am particularly

indebted to Professor Jessica Milner Davis for her support for my research efforts in

Australia.

1. In a classic admonition about libel actions based on ridicule, Judge Learned Hand

declared that “a man must not be too thin-skinned or a self-important prig.” Burton v.

Crowell Publ’g Co., 82 F.2d 154, 155 (2d Cir. 1936) (Hand, J.).

94 Southern California Interdisciplinary Law Journal [Vol. 21:93

reputations: the fact/opinion distinction. On one hand, if a joke can be

sorted down the “opinion chute,” then the humorist faces no civil liability.

If, on the other hand, the joke suggests false facts unfavorable to the

plaintiff, defamation liability can attach. Given the complexity and gravity

of the value clash that the fact/opinion distinction seeks to govern, we

should not be surprised that this distinction is not completely up to the task.

While it is an appropriate starting point, the fact/opinion concept needs to

be augmented to accomplish the required balance.

So, what are we to do? There is no quick fix for this problem, and we

need to keep working on it. In the meantime, however, insight comes from

a remote—and arguably unlikely—place: Australia. The remoteness is only

geographic, which provides little problem in today’s high-technology

world. The unlikelihood derives instead from Australia’s ties to the law of

Great Britain, and Australia’s decision so far not to protect or formalize

free speech values to the same extent as the United States. Several factors,

however, make meaningful guidance from Australia possible, not the least

of which is the confluence of two cherished Australian cultural traditions:

plain speaking and a great sense of humor. But I should not overstate the

case here. The Australian cases sometimes yield results that the United

States does not promote. Nonetheless, Australian cases provide a vehicle

for understanding what is at stake in defamatory humor cases and a foil for

identifying a valuable analytical approach.

In addition, most of the

Australian cases reach a result quite similar to that reached in cases in the

United States—minus the sometimes distracting and oversimplifying

language of First Amendment exceptionalism. In other words, qualities of

the Australian cases, particularly their straightforward candor and approach

to humor, provide a useful message for U.S. courts.

2. The citations to Australian cases throughout this article are formatted pursuant to

Table 2.2 in The Bluebook. See T

HE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 280–81

tbl.T.2.2 (Columbia Law Review Ass’n et al. eds., 19th ed. 2010). However, where The

Bluebook fails to provide guidance—particularly with unreported Australian cases—the

citations are formatted according to the Third Edition of the Australian Guide to Legal

Citation, published by the Melbourne University Law Review Association. AUSTRALIAN

GUIDE TO LEGAL CITATION 52–55 (Melbourne University Law Review Ass’n ed., 3d ed.

2010), available at http://mulr.law.unimelb.edu.au/go/AGLC3. Pursuant to the Australian

Guide to Legal Citation, pinpoint citations for unreported Australian opinions refer to the

paragraph in the opinion, not a page number implemented by an unofficial reporter such as

WestLaw or LexisNexis; thus if the cited material appears in the first paragraph of the

opinion, the proper pinpoint citation is: “[1].” See id. at 53. Accordingly, an id. citation

referring an unreported Australian case is formatted as: “Id. [1].” In addition, when

quotations employ the Australian or British spellings, we have simply left the spelling as in

the original source rather than Americanizing it or noting the difference with “[sic].”

2011] Defamatory Humor and Incongruity’s Promise 95

Happily, there is another, entirely separate source of guidance for

charting the line between reputation and humor protection: interdisciplinary

research on the humor process. Humor scholars have for centuries

identified important characteristics that tend to make a communication

funny.

This scholarship sheds light on when courts tend to use defamation

law to regulate humor, and provides normative guidance on when they

should regulate humor.

Before I get started with the task of mining Australian case law and

interdisciplinary scholarship for insights into how defamation law should

regulate comedy, I should lay on the table certain presumptions and values

that informed my research for this project. The first is my premise that

humor is presumptively beneficial to human society and should be

celebrated. The second premise—a related point—is that humor is

intimately tied to the creative process, which also should be celebrated and

fostered.

While these two premises are uncontroversial as a starting point, they

yield three more contestable, subsidiary presumptions. First is the idea that

the imagination necessary to create humor has a special moral force. I

embrace philosopher John Dewey’s statement that “[i]magination is the

chief instrument of the good. . . [and] is more moral than moralities.”

Imagination allows individuals to reach beyond themselves. When

combined with the genuine honesty often imbedded in humor, imagination

can allow humans to achieve a degree of selfless commentary that benefits

both the individual and the collective. My second presumption concerns the

creative source for humor, which I accept as derived from recognition and

appreciation of incongruity.

Humor theorists debate this proposition in

3. See Laura E. Little, Regulating Funny: Humor and the Law, 94 CORNELL L. REV.

1235 (2009) for my study using this interdisciplinary work to analyze contract, trademark,

and employment law.

Expanding on the study, this Article extends the interdisciplinary

thinking about humor into several new contexts: defamation law, First Amendment

protections, and transnational/comparative law analysis.

4. J

OHN DEWEY, ART AS EXPERIENCE 348 (1934).

5. See, e.g., P

AUL R. MCGHEE, HUMOR: ITS ORIGIN AND DEVELOPMENT 166–67

(1979) (stating “the production of humorous incongruities in fantasy probably fosters

development of creative thinking”); AVNER ZIV, PERSONALITY AND SENSE OF HUMOR 132

(1984) (“Correlations between humor and creativity are positive and statistically

significant.”) (internal citations omitted); Michael K. Cundall, Jr., Humor and the Limits of

Incongruity, 19 C

REATIVITY RES. J. 203, 204 (2007) ( “[A]s is the case for creativity,

originality is a prerequisite for good humor.”); Tony Veale, Figure-Ground Duality in

Humour: A Multi-Modal Perspective, 4 LODZ PAPERS PRAGMATICS 63, 64 (2008)

[hereinafter Figure-Ground Duality in Humour] (noting that the “cathartic effect” of

separating “layers of meaning” in the creative process “is . . . most keenly experienced and

appreciated in the realm of humorous creativity”).

96 Southern California Interdisciplinary Law Journal [Vol. 21:93

their work, which I survey in Part II.

Finally, it is my belief that judicial

decisionmaking by necessity requires a court to make choices among value

preferences and that an important mechanism for regulating that process is

maintaining rules and mechanisms that foster judicial candor. When a court

is asked to regulate something as subjective as humor, justice can come

about only through the full disclosure of competing concerns.

American and Australian cases have long recognized the defamatory

potential of jokes. These cases have weaved into their analyses the classic

admonition from an 1831 Irish case: “If a man in jest conveys a serious

imputation, he jests at his peril.”

Apparently taking their cue from this

admonition, plaintiffs have energetically pursued defamation remedies for

injuries resulting from diverse types of humor, ranging from cartoons,

songs, and news stories to offhand quips.

After a spate of U.S. decisions in

the 1980s dealing with defamatory humor, legal scholars produced several

articles trying to untangle the doctrines courts invoked.

Although a steady

flow of the defamatory humor cases continue to make their way into U.S.

6. See infra notes 41–79 and accompanying text for a discussion of the debates

about the role of incongruity in producing humor.

7. Donoghue v. Hayes, (1831) Hayes Ir. Exch. Rep. 265, 266. See also Triggs v. Sun

Printing & Publ’g Ass’n, 71 N.E. 739, 742 (N.Y. 1904) (citing Donoghue’s proposition on

jesting at one’s peril); Salomone v. Macmillan Publ’g Co., 411 N.Y.S.2d 105, 109 (Sup. Ct.

1978) (same), rev’d on other grounds, 429 N.Y.S.2d 441 (App. Div. 1980); Entienne Pty

Ltd. v Festival City Broads. Pty Ltd. (2001) 79 SASR 19, 29 (Austl.) (same).

8. See infra notes 119–128 and accompanying text for a survey of United States

cases and notes 231–250 and accompanying text for a survey of Australian cases.

9. See, e.g., Harriette K. Dorsen, Satiric Appropriation and the Law of Libel,

Trademark, and Copyright: Remedies Without Wrongs, 65 B.U. L. REV. 923 (1985)

(focusing on particular problems of regulating satire); Donna Stricof Kramer, Drawing Fire:

The Proliferation of Libel Suits Against Cartoonists, 5 C

ARDOZO ARTS & ENT. L.J. 573

(1986) (surveying suits and suggesting protections for cartoonists); Robert C. Lind, The

Visual Artist and the Law of Defamation, 2 UCLA ENT. L. REV. 63 (1995) (reviewing legal

doctrines governing the visual artist as a defendant and a plaintiff);

Catherine L. Amspacher

& Randel Steven Springer, Note, Humor, Defamation, and Intentional Infliction of

Emotional Distress: The Potential Predicament for Private Figure Plaintiffs, 31 W

M. &

MARY L. REV. 701, 703–04 (1990) (reviewing tort suits based on humor and suggesting “an

analytical method by which courts can hold liable media defendants who, in the name of

humor, egregiously harass, humiliate, or falsely portray private figure plaintiffs”); Kenneth

M. Fitzgerald, Comment, Humor and the Law of Libel: Serious Protections for Attacks

Made in Jest, 40 F

ED. COMM. L.J. 377, 378 (1988) (outlining ways in which the author

believes that humor has achieved “near immunity from the law of libel”); Cary Dee

Glasberg, Case Note, Who Has the Last Laugh? A Look at Defamation in Humor, 9

LOY.

L.A. ENT. L. REV. 381 (1989) (evaluating the decision in Mendelson v. Carson and

proposing standard for evaluating defamation in humor cases); Leslie Kim Treiger,

Protecting Satire Against Libel Claims: A New Reading of the First Amendment’s Opinion

Privilege, 98

YALE L.J. 1215 (1989) (exploring how current First Amendment protections

for humor are inadequate to protect satire).

2011] Defamatory Humor and Incongruity’s Promise 97

courts, new legal scholarship on the issue—doctrinal or otherwise—has

dwindled during the new millennium.

This Article tries to fill the scholarship gap, using lessons from

interdisciplinary learning on humor and comparative analysis of Australian

cases. To lay the groundwork for the thesis that the fact/opinion distinction

is insufficient for the task of regulating defamatory humor in the United

States, the Article begins with a review of the interdisciplinary scholarship.

It then turns to American legal doctrine, which is grounded in both

common law defamation and First Amendment principles. Next, it reviews

the work of Australian courts, which have navigated the challenges of

defamatory humor largely without resort to any sort of fact/opinion

distinction. Rather, Australian courts have focused on the plaintiff’s harm,

essentially asking whether a jest sufficiently disparages the plaintiff as to

call for civil liability. While certainly not free from problems, this

approach, I conclude, is forthrightly consistent with the central goal of tort

law: repairing a wrong done.

As for the important First Amendment

values that need to be balanced against this goal, guidance comes from a

core concept found in interdisciplinary humor scholarship—incongruity.

The end of this Article explores how the incongruity concept helps to

calibrate an optimal balance of First Amendment concerns and the values

of human dignity, property, and honor reflected in defamation law. I

ultimately conclude that courts deciding whether to restrict defamation

liability for a particular communication are well served to evaluate the

communication’s presentation of incongruities.

10. Notable exceptions include: Lauren Gilbert, Mocking George: Political Satire as

“True Threat” in the Age of Global Terrorism, 58 U.

MIAMI L. REV. 843 (2004) (examining

attempts to regulate satire under legal provisions designed to protect national security);

Joseph H. King, Defamation Claims Based on Parody and Other Fanciful Communications

Not Intended to be Understood as Fact, 2008 U

TAH L. REV. 875 (proposing a four-part test

for determining whether a parody is protected opinion); Eric Scott Fulcher, Note, Rhetorical

Hyperbole and the Reasonable Person Standard: Drawing the Line Between Figurative

Expression and Factual Defamation, 38 G

A. L. REV. 717 (2004) (reviewing case law and

proposing a strategy for courts to determine whether a statement qualifies as “rhetorical

hyperbole”).

11. See, e.g., John Gardner, What is Tort Law for? Part 1: The Place of Corrective

Justice, U.

OF OXFORD LEGAL RES. PAPER SERIES 6–7 (Jan. 2010), available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1538342 (arguing that corrective justice

is a necessary but not sufficient justification for tort law); John C.P. Goldberg & Benjamin

C. Zipursky, Torts as Wrongs, 88

TEX. L. REV. 917, 918–19 (2010) (arguing that the goal of

tort suits is to provide plaintiffs with an avenue for getting redress from those who have

inflicted a wrong on them).

98 Southern California Interdisciplinary Law Journal [Vol. 21:93

II. INTERDISCIPLINARY HUMOR SCHOLARSHIP

Humor scholarship spans a myriad of disciplines, with philosophy,

literary theory, sociology, and psychology perhaps best represented. For

analyzing defamatory humor, three components of interdisciplinary humor

scholarship are particularly relevant: (1) inventories of humor types, (2)

theories of how humor operates, and (3) studies of humor’s instrumental

consequences (both beneficial and detrimental). I consider these

components in turn.

A. A

HUMOR INVENTORY

Scholars have invested considerable effort in categorizing varieties of

humor,

with major categories including formal jokes, wit, satire, sarcasm,

parody, puns, and practical joking.

Formal jokes, practical jokes, satire,

and parody most often serve as the vehicles for alleged defamation. Formal

jokes are “prepackaged humorous anecdotes that people memorize and pass

on to one another . . . .”

Practical jokes are normally defined as unkind

“tricks” played on a person.

Most commonly occurring in the defamation context are satire and

parody, two forms of humor that scholars often consider together. Both

tend to be aimed at derision,

to include ridicule, to operate without

subtlety,

and to have a “symbiotic relationship.”

As a matter of formal

definition, however, the two are quite separate: parody is “a manipulation

of pre-existing works, usually for comic effect[,]” while satire is “[an]

attack on some irritating aspect of the world.”

As these two definitions

suggest, joviality more often accompanies parody than satire, which is

often perceived as having a sharper edge than parody. Another important

12. Scholars have identified as many as twenty-one varieties of humor. Little, supra

note 3, at

1235–81 (surveying interdisciplinary humor scholarship and analyzing regulation

of humor through contract, trademark infringement, and employment discrimination

principles).

13.

JON E. ROECKELEIN, THE PSYCHOLOGY OF HUMOR 13 (2002).

14. R

OD A. MARTIN, THE PSYCHOLOGY OF HUMOR 11 (2007) [hereinafter THE

PSYCHOLOGY OF HUMOR].

15. Id. at 126.

16.

ROECKELEIN, supra note 13, at 59–61.

17. See Nicholas Garland, Political Cartooning, in L

AUGHING MATTERS: A SERIOUS

LOOK AT HUMOUR 76 (John Durant & Jonathan Miller eds., 1988).

18. Conal Condren et al., Defining Parody and Satire: Australian Copyright Law and

its New Exception, 13

MEDIA & ARTS L. REV. 273, 279 (2008) [hereinafter Condren 1].

19. Id.

2011] Defamatory Humor and Incongruity’s Promise 99

distinction between parody and satire is “intertextuality.”

Unlike satire,

parody overlaps with the text serving as the parody’s object. This overlap,

which allows the audience to recognize the original text within the

parody,

can occur in characteristics such as the qualities of a particular

genre (for example, poetry or popular song lyrics), or in specific words,

characters, or plot lines (for example, a character that resembles the Star

Wars character Jar Jar Binks, the plot of Goldilocks and the Three Bears, or

words that track Little Bear’s exclamation upon seeing Goldilocks in his

bed).

Yet despite parody’s distinctive intertextual quality, many works

exhibit both “parodic form and satiric purpose.”

For example, “Jonathan

Swift’s Gulliver’s Travels parodies travel books while also satirising

British politics and European civilisation[,]” and The Simpsons “parodies

TV situation comedy in general while also satirising middle America.”

B. M

AJOR THEORIES OF HUMOR

For years the gold standard for explaining what constitutes humor has

had a tripartite structure: superiority, release, and incongruity theories.

Scholars have recently expended considerable effort developing new

approaches to explaining why a communication is funny, but the three

classic theories retain considerable dominance. Each possesses a unique

heritage, yet the three are not mutually exclusive, and one can easily

20. SALVATORE ATTARDO, HUMOROUS TEXTS: A SEMANTIC AND PRAGMATIC ANALYSIS

71, 87 (Victor Raskin & Willibald Ruch eds., 2001) (describing parody’s connection to

intertextualism and defining the term: “A text [T1] will be said to have an intertextual

relation to another text [T2] when the processing of T1 would be incomplete without a

reference to T2.”); Peggy Zeglin Brand, Parody, in 3 E

NCYCLOPEDIA OF AESTHETICS 441,

442 (Michael Kelly ed., 1998) (describing intertextualism); Jerry Palmer, Parody and

Decorum: Permission to Mock, in BEYOND A JOKE 79, 81 (Sharon Lockyer & Michael

Pickering eds., 2005) [hereinafter Parody and Decorum] (referring to parody’s quality of

intertextuality).

21. See Parody and Decorum, supra note 20, at 82.

22. A

RTHUR ASA BERGER, BLIND MEN AND ELEPHANTS 74 (1995) (discussing style of

“authorship,” “genre,” and “specific text”).

23. Condren 1, supra note 18, at 279.

24. Id. at 280.

25. See, e.g., Tad Friend, What’s So Funny?, T

HE NEW YORKER, Nov. 11, 2002, at 78,

93 (describing three different theories, and identifying them as “history’s three favorite

comedy theories”). The following is a recent summary of the three theories:

The Renaissance brought Hobbes’s superiority theory (laughter marks the sudden

attainment of power over someone else), which gave way first to Kant’s incongruity

theory (laughter occurs when perceptions don’t conform to logical expectations),

and, finally, to Freud’s release theory (laughter releases pent-up nervous energy.)

Emily Eakin, If It’s Funny, You Laugh, But Why?, N.Y. TIMES, Dec. 9, 2000, at B7.

100 Southern California Interdisciplinary Law Journal [Vol. 21:93

combine them in explaining why a communication is funny. Indeed, as the

defamation case law reveals, a particular quip or joke often does not parse

naturally into distinct humor categories. Nonetheless, the three categories

of humor remain useful heuristics for analysis. For the purpose of clarity I

describe them separately immediately below.

As shown below, incongruity is a quality that is consistent throughout

humorous communications.

If, as I maintain below, the humorous quality

of a communication is relevant to whether the law should expose the

communication to defamation liability, then identifying incongruity in a

communication can play a key role for evaluating whether the

communication is funny and, thus, should be insulated from (or exposed to)

defamation liability. Superiority and release theories also have unique

contributions to understanding humor that focuses on different parts of

human experiences. Contemporary humor theorist Marta Dynel helpfully

explains: whereas incongruity theory focuses on cognitive processing of

jokes, superiority theory highlights social qualities of humor, and release

theory focuses on psychoanalytical phenomena.

Accordingly, superiority

and release theory both can shed light on whether humans would perceive a

communication as funny and—ultimately—worthy of insulation from (or

exposure to) legal regulation. Yet because funny communications do not

necessarily always exhibit qualities of superiority or release humor, the

theories take secondary importance to incongruity theory. I explore all

three theories in this section.

1. Superiority Theory

Superiority theory derives from ancient thinkers (Aristotle, Plato,

Socrates, and Cicero) who associated humor with the process of

aggressively disparaging others in order to enhance oneself.

Not

26. See infra notes 42–47 for further discussion of this proposition.

27.

MARTA DYNEL, HUMOROUS GARDEN-PATHS: A PRAGMATIC-COGNITIVE STUDY 42

(2009) [hereinafter HUMOROUS GARDEN-PATHS].

28. See, e.g., Antony J. Chapman & Hugh C. Foot, Introduction to H

UMOUR AND

LAUGHTER: THEORY, RESEARCH AND APPLICATIONS 1, 1 (Antony J. Chapman & Hugh C.

Foot eds., 1976) (observing that Cicero and Aristotle believed that laughter derives from

“shabbiness or deformity,” is “degrading” and has no place in the lives of civilized men);

Rod A. Martin, Humor and Laughter, in 4 E

NCYCLOPEDIA OF PSYCHOL. 202, 202–03 (Alan

E. Kazdin ed., 2000) [hereinafter Humor and Laughter]. Socrates advocated for society to

control laughter that “mocks authority” and “notions of truth and beauty.” MICHAEL BILLIG,

LAUGHTER AND RIDICULE: TOWARDS A SOCIAL CRITIQUE OF HUMOUR 41–42 (2005). As for

Plato, he took the view that humor was a weapon deployed by weak individuals when they

perceived themselves unlikely to face counterattack. Dolf Zillman & Joanne R. Cantor, A

Disposition Theory of Humour and Mirth, in H

UMOR AND LAUGHTER: THEORY, RESEARCH

AND

APPLICATIONS 94 (Antony J. Chapman & Hugh C. Foot eds., 1976) [hereinafter A

2011] Defamatory Humor and Incongruity’s Promise 101

surprisingly, English philosopher Thomas Hobbes propounded an equally

negative view of humor; he is often named as the progenitor of superiority

theory itself.

Hobbes focused on humor’s association with egocentricity

and power, suggesting that a person finds amusement only if the

communication makes them feel personally successful or superior to

another.

Hobbes states in an oft-quoted passage: “Sudden Glory, is the

passion which maketh those Grimaces called LAUGHTER; and is caused

either by some sudden act of their own, that pleaseth them; or by the

apprehension of some deformed thing in another, by comparison whereof

they suddenly applaud themselves.”

2. Release Theory

Release theory identifies repressed pleasure

or anxiety

as humor’s

sources. Scholars credit Sigmund Freud and two English philosophers,

Alexander Bain and Herbert Spencer, with developing the theory.

Bain

and Spencer focused on humor’s ability to release nervous energy.

Bain explained, release results from humor’s embrace of “degradation” or

the “personal pleasure in naughtiness.”

Freud imported to this observation

his theory that jokes express taboo desires.

Particularly salient to

understanding defamatory humor is the connection Freud draws between

jokes and dreams. Freud hypothesized that both joking and dreaming work

by analogy or allusion, thereby sidestepping logic and literal meaning in

Disposition Theory of Humour and Mirth] (describing Plato’s observation about the

usefulness of the “the weak and helpless” as a “target of ridicule and a risk-free source of

social gaiety”).

29. 2

THOMAS HOBBES, LEVIATHAN 48 (G.A.J. Rogers & Karl Schuhmann eds.,

Thoemmes Continuum 2003) (1651).

30. Id.

31. Id. According to Hobbes, one commonly finds this tendency in humans who

discern few “abilities in themselves” and “who are forced to keep themselves in their own

favour, by observing the imperfections of other men.” Id.

32. S

IGMUND FREUD, THE JOKE AND ITS RELATION TO THE UNCONSCIOUS (Joyce Crick

trans., Penguin Classics 2003) (1905).

33.

JOHN LIMON, STAND-UP COMEDY IN THEORY, OR, ABJECTION IN AMERICA 39 (2000)

(observing that a joke can release anxiety and fear about such matters as miscegenation and

homoeroticism). See also BILLIG, supra note 28, at 86 (referring to humor’s role in releasing

pressure).

34. Michael Billig traces the theory to a dispute between Bain and Spencer. B

ILLIG,

supra note 28, at 86 (referring to humor’s role in releasing pressure). See also MURRAY S.

DAVIS, WHAT’S SO FUNNY? 7 (1993) (identifying Freud and Spencer with the theory).

35. B

ILLIG, supra note 28, at 91.

36.

Id. at 93–97.

37. See F

REUD, supra note 32.

102 Southern California Interdisciplinary Law Journal [Vol. 21:93

order to elude our conscious minds’ censors.

Freud noted jokes’ tendency

to focus on “bawdry” or “sexual facts and relations.”

Scholars building on

his work expanded the taboo, or sensitive topics, targeted by release humor

to include excretion, death, disability, and other negative aspects of the

human condition.

3. Incongruity Theory

A particular funny communication may or may not exhibit the

humorist’s need to relieve anxiety or express superiority. Yet nearly all

humor theorists agree that incongruity is a necessary condition for a

communication to be humorous.

For this reason, incongruity theory is by

far the most important of the three theories for identifying whether a

communication is funny and for evaluating whether its humor justifies

insulating it from legal liability.

Philosophers and other thinkers have long connected humor and

incongruity,

tracing the connection to Aristotle’s view of the comic as

derived from surprise and deception,

and finding the theory’s intellectual

38. FREUD, supra note 32, at 154 (observing that the technique of jokes includes

similar processes as “dream-work”: “the processes of condensation . . . displacement,

representation by absurdity or by the opposite, indirect representation”).

39. Id. at 92.

40. See, e.g., J

AMES M. COX, MARK TWAIN: THE FATE OF HUMOR vii, xv (Univ. of Mo.

Press 2002) (1966) (arguing that humorists make possible the release of “repressed tension”

by exposing “the absence of meaning in existence”); Vassilis Saroglou & Lydwine Anciaux,

Liking Sick Humor: Coping Styles and Religion as Predictors, 17 HUMOR:

INT’L J. HUMOR

RES 257, 257– 66 (2004) (demonstrating a correlation between coping styles and

appreciation of jokes about disability, deformity, disease, and death).

41. See infra notes 42–47 and accompanying text for further discussion of this

proposition.

42. As of 1955, at least forty-six authors used the concept of incongruity in describing

and explaining humor. Giovannantonio Forabosco, Is the Concept of Incongruity Still a

Useful Construct for the Advancement of Humor Research?, 4 L

ODZ PAPERS PRAGMATICS

45, 46 (2008) [hereinafter Concept of Incongruity] (citing Wilma H. Grimes, A Theory of

Humor for Public Address: The Mirth Experience, 22 S

PEECH MONOGRAPHS 217, 218

(1955)).

43. Marta Dynel, Introduction to the Special Issue on Humour: A Modest Attempt at

Presenting Contemporary Linguistic Approaches to Humour Studies, 4 L

ODZ PAPERS

PRAGMATICS 1, 1 (2008) (observing that psychological, philosophical, and linguistic

literature observes that humor “invariably arises from incongruity”); Concept of

Incongruity,

supra note 42, at 46 (citing Aristotle’s definition of comic and explaining the

connection with the concept of incongruity). Incongruity theory is also attributed to the

rhetorical question posed by Roman poet Horace:If a painter chose to join a human head to

the neck of a horse, and to spread feathers of many a hue over limbs picked up now here

now there, so that what at the top is a lovely woman ends below in a black and ugly fish,

could you, my friends, if favoured with a private view, refrain from laughing? R

OBERT L.

LATTA, THE BASIC HUMOR PROCESS: A COGNITIVE SHIFT THEORY AND THE CASE AGAINST

2011] Defamatory Humor and Incongruity’s Promise 103

pedigree in the work of philosophers Immanuel Kant and Arthur

Schopenhauer.

Although theorists propose a number of incongruity

definitions, they all share a common theme: the notion of joining two or

more otherwise diverse or contrary phenomenon. One theorist, for

example, describes incongruity as “something unexpected, out of context,

inappropriate, unreasonable, illogical, exaggerated,”

while others

emphasize joinder of opposites, concluding that incongruity suggests “a

conflict between what we perceive and our expectations.”

Despite some

variety in the approach and discussion of subcategories of incongruity,

humor theorists generally embrace the “terminological uniformity”

provided by the words “incongruity theories.”

Humorous incongruity manifests in a variety of ways. First,

incongruity can emerge simply because the familiar is placed in a foreign,

unfamiliar context.

More commonly, incongruity results from a sudden

altering of a point of view, such as where a humorous setting reflects both

the profound and the mundane

or where characters engage in role

reversal.

In a related manner, incongruity may result from confusion

about the context in which a term is used. This confusion, coupled with the

process of resolving it, often results in a fun or satisfying mental exercise.

Theorists suggest that the comedy in these techniques derives from surprise

(unforeseen insight), fulfilled expectations, or both.

INCONGRUITY 101 (1999) (quoting HORACE: SATIRES, EPISTLES AND ARS POETICA (G.P.

Goold, ed., H. Rushton Fairclough trans., Harvard Univ. Press 1991) (1926)).

44. Little, supra note 3, at 1245

(describing connection of the incongruity theory with

Kant and Schopenhauer).

45. M

CGHEE, supra note 5, at 10. See also Henry W. Cetola, Toward a Cognitive-

Appraisal Model of Humor Appreciation, 1 HUMOR:

INT’L J. HUMOR RES. 245, 245–46

(1988) (opining that “things that we find funny have to be somewhat unexpected,

ambiguous, illogical, or inappropriate”).

46. John Morreall, Funny Ha-Ha, Funny Strange, and Other Reactions to

Incongruity, in T

HE PHILOSOPHY OF LAUGHTER AND HUMOR 188, 188–89 (John Morreall ed.,

1987). See also J

OHN ALLEN PAULOS, MATHEMATICS AND HUMOR 9 (1980) (infusing the idea

of opposites into defining the element of incongruity in humor).

47. H

UMOROUS GARDEN-PATHS, supra note 27, at 45.

48. H

ENRI BERGSON, LAUGHTER: AN ESSAY ON THE MEANING OF THE COMIC 112

(Cloudesley Brereton & Fred Rothwell trans., Macmillan 1911) (1900).

49. Issac Asimov suggests that humor readily results where the alteration creates an

“anticlimax.” I

SAAC ASIMOV, TREASURY OF HUMOR 1 (1971).

50. B

ERGSON, supra note 48, at 94.

51. Mathematician John Allen Paulos created a taxonomy of “opposites” that are

contained in various humorous incongruities: expectation/surprise; mechanical/spiritual;

superiority/incompetence; balance/exaggeration; propriety/vulgarity. P

AULOS, supra note

46, at

9. See also Patricia Ewick & Susan S. Silbey, No Laughing Matter: Humor and

Contradictions, in Stories of Law, 50 D

EPAUL L. REV. 559, 561 (2000) (reasoning that

104 Southern California Interdisciplinary Law Journal [Vol. 21:93

Building on the notion that incongruity works together with both

surprise and fulfilled expectations, several scholars have sought to identify

a general theory of verbal humor based on priming.

The priming theory

suggests that humor occurs when a listener is primed with a “script” and

tricked into applying the script in an incongruous situation. This creates an

interpretative difficulty that the listener may resolve only by replacing the

original script with a less obvious or salient one. Take, for example, the

following light bulb joke: “How many X’s does it take to change a light

bulb? 100—one to hold the bulb and ninety-nine to spin the room

around.”

In this joke, life experience informs the “primed” script (the

process of twisting a light bulb) and the joke inspires a reformulated script

(the process of twisting the room).

Twisting the room appears

incongruous because twisting is generally paired with the light bulb

function.

Thus emerges an important—albeit arguably ironic—insight:

incongruity operates as humor by reference to congruity. Professor

Giovannantonio Forabosco explains that the humor process requires an

“attention-shift . . . in which the project passes from the perception of

congruence to the perception of incongruity and, sometimes, vice versa,

with several shifts.”

Professor Tony Veale further explains how incongruity must work

within a field of congruity in order to yield humor using the following

example: “Consider . . . the four most primitive and fundamental drives

guiding the instinctive [behavior] of mammals . . . commonly known as the

humor’s “quality of suspense” results from placing “disparate elements . . . in competition”);

Victor Raskin & Salvatore Attardo, Non-Literalness and Non-Bona Fide in Language: An

Approach to Formal and Computational Treatments of Humor, 2 PRAGMATICS AND

COGNITION 31, 35–37 (1994) [hereinafter Non-Literalness and Non-Bona-Fide in

Language] (discussing a recoil effect and how listeners participate in joke telling by

anticipating and searching for joke ingredients in the speaker’s words).

52. See, e.g., Salvatore Attardo & Victor Raskin, Script Theory Revis(it)ed: Joke

Similarity and Joke Representational Model, 4 HUMOR:

INT’L J. HUMOR RES. 293, 331

(1991); Figure-Ground Duality in Humour, supra note 5, at 74. Theorist Marta Dynel

describes at least two different uses of incongruity humor that could be tied to the priming

theory. One approach, she maintains, ends with a “surprising red light.” HUMOROUS

GARDEN-PATHS, supra note 27, at 25. This is reflected in the following quip: “War does not

determine who is right but who is left.” Id. at 27. In another example, the priming takes

place in an “ambiguous lead up,” such as in the following example: “She has her looks from

her father. He’s a plastic surgeon.” Id. at 51.

53. Figure-Ground Duality in Humour, supra note 5, at

75.

54. Id.

55. Giovannantonio Forabosco, Cognitive Aspects of the Humor Process: The

Concept of Incongruity, 5 HUMOR:

INT’L J. HUMOR RES. 45, 60 (1992).

2011] Defamatory Humor and Incongruity’s Promise 105

four F’s, namely Fight, Flight, Feeding and Mating. “

The incongruity

here is that “mating” is not an “F-word.” Yet the word choice “mating” is

relevant, since it is, after all, a polite term for another F-word that would fit

quite aptly in the list. According to Veale, “We thus see past the

foregrounded Mating to grasp the backgrounded F-word that lies

underneath, and in doing so, preserve the validity of the phrase four F’s.”

Furthermore, Veale explains that the joke “relies on the complicity of the

audience, both in their understanding of the speaker’s desire to avoid any

mention of a vulgar word and in their desire to enjoy the frisson generated

by this four-letter Anglo-Saxon expletive.”

Consequently, Veale

continues, “the phrasing seems clever and cheeky, making the speaker (and

the audience) simultaneously innocent and guilty of violating a

commonplace taboo.”

The process described by Veale and Forabosco was also identified by

earlier thinkers, who characterized humor as making “sense in nonsense”

(Freud’s phrase)

or as containing a sort of “limited logic”

or “local

logic.”

Some thinkers further argue that in order for humor to succeed,

the listener needs to at least partially resolve the incongruities set up in a

humorous statement. The argument posits that without resolution—a return

to congruity after experiencing the joke’s incongruity—the listener’s

discomfort interferes with her perception of the communication as funny.

Several empirical studies suggest, however, that incongruity resolution is

not always essential for listeners to find a joke funny and satisfying,

particularly listeners with a high tolerance for ambiguity.

56. Figure-Ground Duality in Humour, supra note 5, at 73.

57. Id.

58. Id. at 73–74.

59. Id. at 74.

60.

FREUD, supra note 32, at 3–4.

61. Norman R.F. Maier, A Gestalt Theory of Humor, 23 B

RIT. J. PSYCHOL. 69, 72

(1932).

62. Z

IV, supra note 5, at 90. For a description of the mental discomfort inspired by

incongruity, see Benedict Carey, How Nonsense Sharpens the Intellect, N.Y.

TIMES, Oct. 5,

2009, at D1.

63. Forabosco, Cognitive Aspects, supra note 55, at

57 (arguing that without

resolution, “incongruity cannot be . . . used in the humor context” and the listener “would

remain perplexed, confused, disoriented, and perhaps in extreme cases even frightened”).

64. T

HE PSYCHOLOGY OF HUMOR, supra note 14, at 68–73 (describing various studies

regarding the effect of incongruity resolution).

65. See, e.g., Willibald Ruch & Franz-Josef Hehl, A Two-Mode Model of Humor

Appreciation: Its Relation to Aesthetic Appreciation and Simplicity-Complexity of

Personality, in T

HE SENSE OF HUMOR: EXPLORATIONS OF A PERSONALITY CHARACTERISTIC

109, 127 (Willibald Ruch ed., 1998) (finding that tolerance for ambiguity correlates

106 Southern California Interdisciplinary Law Journal [Vol. 21:93

A handful of thinkers who are skeptical of incongruity’s essential

relationship to humor provide further discord in contemporary

scholarship.

Despite the stridency of their work, the overwhelmingly

dominant view continues to hold that in order for a communication to have

humor potential it needs incongruity.

Moreover, a consensus also exists

about a specific, curious aspect of incongruity: some incongruity is simply

not funny. In other words, incongruity may be a necessary condition for

humor, but it is not a sufficient condition. Thus, some incongruities, such

as randomly connected concepts, “poetic metaphors, [and] magic tricks,”

positively with appreciation for humor with unresolved incongruity, bizarreness, and

absurdity, while conservative and authoritarian personality traits correlate positively only

with appreciating jokes that resolve incongruity); Willibald Ruch, Assessment of

Appreciation of Humor: Studies with the 3 WD Humor Test, in 9 A

DVANCES PERSONALITY

ASSESSMENT 27, 67 (Charles D. Spielberger & James N. Butcher eds., 1992) (finding that

tolerance for ambiguity correlates positively with appreciation for humor with unresolved

incongruity, bizarreness, and absurdity, while conservative and authoritarian personality

traits correlate positively only with appreciating jokes that resolve incongruity).

66. The most prominent challenge to incongruity’s essential role in the humor process

comes from Professor Gabriella Eichinger Ferro-Luzzi. Although asserting that incongruity

occurs frequently in humor, she maintains that it is not essential to producing humor.

Gabriella Eichinger Ferro-Luzzi, On Necessary Incongruities, 10 HUMOR: INT’L J. HUMOR

RES. 117 (1997) [hereinafter On Necessary Incongruities]; Gabriella Eichinger Ferro-Luzzi,

Tamil Jokes and the Polythetic-Prototype Approach to Humor, 3

HUMOR: INT’L J. HUMOR

RES. 147, 152 (1990). Other humor scholars take her work very seriously, but believe it to be

insufficiently theorized and insufficiently supported by examples. See, e.g,

ELLIOTT ORING,

ENGAGING HUMOR 8–10 (2003) (arguing that Eichinger Ferro-Luzzi’s analyses of jokes

seem “incomplete or off the mark” and that her examples are “questionable”); Concept of

Incongruity, supra note 42, at 55

(criticizing Eichinger Ferro-Luzzi’s use of a standard

“dictionary-based . . . definition” of incongruity rather than a theory-dependent use of the

term). Robert Latta also launched a broad-ranging attack on incongruity theory. LATTA,

supra note 43, at 99–234. But other humor theorists have vigorously criticized his work as

well. Concept of Incongruity, supra note 42, at 55

(stating that Latta’s “case against

incongruity” has “been radically criticized in a close and tough analysis”); Elliott Oring,

Book Review, 12

HUMOR: INT’L J. HUMOR RES. 457, 457–59 (1999) (reviewing ROBERT L.

LATTA, THE BASIC HUMOR PROCESS: A COGNITIVE SHIFT THEORY AND THE CASE AGAINST

INCONGRUITY) (arguing that Latta’s alternative theory is not firmly grounded in

psychological literature and that Latta’s attempt to impose “a strict logical standard” on

incongruity is at odds with the nature of humor). For an intermediate position on the

incongruity debate, see Cundall, supra note 5, at

211 (acknowledging that humor perception

does require “recognition of an incongruity,” but also arguing that incongruity theory

“leaves too much of the act of perceiving humor unexplained”).

67. See, e.g., T

HE PSYCHOLOGY OF HUMOR, supra note 14, at 72 (summarizing current

research and concluding that “some sort of incongruity (however defined) seems to be

necessary for all types of humor”).

68. Tony Veale, Incongruity in Humor: Root Cause or Epiphenomenon?, 17

HUMOR:

INT’L J. HUMOR RES. 419, 424 (2004).

2011] Defamatory Humor and Incongruity’s Promise 107

may be insightful, quirky, illogical, or “irredeemably absurd,”

but not

funny. Take for example the concept of “being hit by a car while walking

on the sidewalk”

or arbitrary word pairings such as “tomato/carburetor.”

Incongruous? Yes. Funny? Hardly.

Even so, precisely what makes some incongruities funny and what

makes others not is elusive. Given that identifying incongruity is a key step

in segregating humor from non-humor, the process of trying to pinpoint

what makes certain incongruities funny is important both in a legal context

as well as nonlegal contexts where one might benefit from understanding

the operation of humor. As a starting point, one might say that—to be

funny—incongruities must be “motivated by, and understandable within,

the context of their use.”

Scholars have also long identified two other

conditions enabling humor to emerge from incongruity: the incongruity

“take[s] place in a playful and non-threatening context” or “occur[s]

suddenly.”

Yet another quality known to enhance comedic effect derives

from the social quality of humor. A listener often knows from a joke

teller’s cue that the joke teller seeks to make them laugh. Through

symbiotic mental cooperation with the joke teller, the listener anticipates

that a punch line is coming, doesn’t know what it will be, and experiences

both fulfillment and surprise when it arrives.

Where such conditions are

established, even the most mundane incongruity may give rise to

pleasurable comedic appreciation.

A recently articulated theory argues that humor results from

incongruity where a joke’s “engagement of the incongruity and search for

69. Figure-Ground Duality in Humour, supra note 5, at 73 (explaining how

“incongruity alone does not automatically produce either creativity or humour”). Cf. B

ILLIG,

supra note 28, at 76 (observing that one might conclude that incongruity often accompanies

comedy, but this alone does not “explain why the perception of incongruity should be

followed by a sense of pleasure and laughter”).

70. T

HE PSYCHOLOGY OF HUMOR, supra note 14, at 64.

71. Figure-Ground Duality in Humour, supra note 5, at 73 (citing O

RING, supra note

66).

72. T

HE PSYCHOLOGY OF HUMOR, supra note 14, at 64–65 (summarizing literature on

what “something extra” enables incongruity to be humor).

73. Non-Literalness and Non-Bona-Fide in Language, supra note 51, at 35–37

(analyzing how listeners participate in joke telling by anticipating and searching for joke

ingredients in the joke teller’s words). See also T

ED COHEN, JOKES: PHILOSOPHICAL

THOUGHTS ON JOKING MATTERS 28 (1999) (explaining that shared knowledge or experience

between joke teller and listener can provide a “foundation of the intimacy” that develops if a

joke “succeeds”).

108 Southern California Interdisciplinary Law Journal [Vol. 21:93

its appropriateness is spurious rather than genuine.”

Professor Elliot

Oring, the proponent of this view, uses the following riddle to explain:

Q: Why should you always wear a watch in the desert?

A: Because a watch has springs (water sources) in it.

According to Oring, “springs” and “the desert” have an appropriate

relation because both are characterized by water (or lack of it). In the

riddle, however, the relation is linguistic only—and not legitimate—since

the type of springs that watches have do not give water.

If, on the other

hand, the juxtaposition of watch springs and the desert sought to

demonstrate some kind of genuine connection—as in a metaphor—it would

be wholly lacking in humor. That is not to say that this riddle is knee-

slappingly hilarious. The humor is in the nature of a pun, a type of humor

in which “the spuriousness of an . . . incongruity is . . . obvious and

transparent.”

This obviousness is why, Oring explains, “puns often elicit

groans rather than laughter.”

According to Oring, “Groans register the

recognition of the humor while devaluing it socially and intellectually.”

C. I

NSTRUMENTAL CONSEQUENCES OF HUMOR: HIGH PRAISE

Times are good for the joke. And no wonder—jokes have special

communicative potency and therapeutic effect, and foster human

organization. A good joke can build a human relationship and provide a

great deal of fun, pleasure, and happiness. Indeed, in this atomistic,

sometimes alienating era, humor (and its beneficial consequences) has a

particularly significant role to play for both individuals and collective

entities.

This potential is not lost on the world’s thinkers. They do,

however, measure their praise carefully. With some exceptions, social and

natural scientists as well as humanities theorists find the greatest value in

humor that is high in incongruity, mixed value for jokes associated with

74. ORING, supra note 66, at 5.

75. Id. at

3 (quoting MCGHEE, supra note 5, at 131–33).

76. Id. at

77. Id. at

78. Id.

79. Id. Oring further suggests that humor is labeled corny where it “flagrantly displays

its spurious devices.” Id. at 7.

80. See generally R

OBERT D. SACK, SACK ON DEFAMATION: LIBEL, SLANDER &

RELATED PROBLEMS § 5:5.2[G][1] (3d ed. 1999) (“Humor is an important medium of

legitimate expression and central to the well-being of individuals, society, and their

government”).

2011] Defamatory Humor and Incongruity’s Promise 109

release humor, and frequent problems with superiority humor.

Scholars

scrutinize humor’s double-edged quality, but expend most of their effort

cataloguing its positive consequences.

Why does all this matter to defamation cases? To begin, the primary

enterprise of law is of course to regulate human interaction. Within the

specific context of defamation, this regulation must account for sometimes

conflicting individual liberties (freedom of expression versus reputation

and human dignity) as well as collective social benefits of criticism that

might clash with individual reputational rights. I explore these matters in

detail in the Part IV below. As I will illustrate, the task of balancing the

various interests is particularly challenging in the context of humorous

communications that are alleged defamatory. As preparation for

understanding the interests relevant to this balance, we must heed the work

of nonlegal scholars in identifying humor’s individual and social

consequences.

1. Humor’s Consequences for Individuals

For individual well-being, scholars cast humor as an effective coping

device, which can afford altered and empowering perspectives to persons

confronting fearful, sad, or angry situations.

Studies document that humor

reduces stress by moderating stress-related emotions and physiological

changes.

81. See, e.g., MICHAEL BILLIG, LAUGHTER AND RIDICULE: TOWARDS A SOCIAL

CRITIQUE OF HUMOUR 57–85, 158-68 (2005) (describing connections among incongruity

humor, high social rank, education, and “gentlemanly laughter” and explaining both benefits

and dangers that Freud identified in “tendentious” humor concerning taboo topics); Nicholas

H. Kuiper et al., Humor s Not Always the Best Medicine: Specific Components of Sense of

Humor and Psychological Well-Being, HUMOR:INT’L J. HUMOR RES. 135, 139–41 (2004)

(describing psychological analysis of humor based on superiority, which tends to be

“boorish,” based on a “mean-spirited and sarcastic style of poking fun at others,” and

“maladaptive”).

82. See Little, supra note 3, at 1252–54 (reviewing interdisciplinary scholarship

analyzing beneficial aspects of humor).

83. Kimberlianne Podlas, Respect My Authority! South Park’s Expression of Legal

Ideology and Contribution to Legal Culture, 11 V

AND. J. ENT. & TECH. L. 491, 512 (2009)

(“‘Comic relief’ can reduce anxiety associated with disconcerting topics and provide a safe

harbor in which to reaction to them.”); C

OHEN, supra note 73, at 40–41 (arguing that

laughing allows us to accept our limitations and to process “devastating and

incomprehensible matters”); Humor and Laughter, supra note 28, at 203 (noting how humor

alters perspective and increases coping abilities).

84. Humor and Laughter, supra note 28, at 204 (describing physiological and

emotional changes resulting from humor); R

OECKELEIN, supra note 13, at 58 (describing

how comedians transform tragedy into something pleasant and funny).

110 Southern California Interdisciplinary Law Journal [Vol. 21:93

One particularly positive consequence is humor’s role in forging

social bonds among people. As described above, the joke-telling process

links the joke teller with the listener as they experience the joke unfold.

Moreover, shared humor often inspires a feeling that one is part of an

“intellectual in-crowd,” making listeners feel less defensive and more

positive about themselves.

This is particularly true for humor based on

previously shared experiences, or inside jokes.

Analysis of parody

suggests that a similar process occurs for collective audiences before whom

parody is performed or published; true parody works only with that part of

the audience that possesses preexisting knowledge of the parody’s object.

The verdict is more mixed for humor’s health effects, with studies

revealing an uncertain link between robust health and humor. Scholars for

many years proposed that laughter promoted beneficial emotional states

and decreased stress,

yet actual empirical support for a positive link

between humor and good physical health could be stronger.

One problem

in establishing the connection is the difficulty of distinguishing between the

85. See supra footnotes 73 and accompanying text for discussion of the dynamic

between joke teller and listener.

86. Katrina Triezenberg, Humor Enhancers in the Study of Humorous Literature, 17

HUMOR:

INT’L J. HUMOR RES. 411, 413 (2004). See also Cundall, supra note 5, at 210

(explaining a joke-transaction theory under which jokes require “shared knowledge of the

subject matter and the notion of community”).

87. COHEN, supra note 73, at 40–41 (explaining that where a joke teller and listener

share a joke’s background, a “foundation of intimacy” can develop between them).

88. See, e.g., ATTARDO, supra note 20, at 87 (describing parody’s connection to a

preexisting text); Brand, supra note 20, at 442 (describing the interrelationship between

parody and preexisting text); Parody and Decorum, supra note 20, at 81.

89. Rod A. Martin, Sense of Humor and Physical Health: Theoretical Issues, Recent

Findings, and Future Directions, 17 HUMOR:

INT’L J. HUMOR RES. 1, 4–5 (2004). For a

more detailed review of this literature and its nuances, see T

HE PSYCHOLOGY OF HUMOR,

supra note 14, at 309–33.

90. See Nicholas Kuiper & Sorrel Nicholl, Thoughts on Feeling Better? Sense of

Humor and Physical Health, 17 HUMOR:

INT’L J. HUMOR RES. 37, 38 (2004) (reporting

that empirical evidence is “surprisingly weak” for the hypothesis that a greater sense of

humor is linked to better health). Significant support does exist, however, for the proposition

that humor increases pain tolerance. See, e.g, Karen Zweyer, Barbara Velker & Willibald

Ruch, Do Cheerfulness, Exhilaration, and Humor Production Moderate Pain Tolerance? A

FACS Study, 17 HUMOR:

INT’L J. HUMOR RES. 85, 86–92 (2004) (describing past literature

on the correlation and reporting the results of a study in which pain tolerance increased after

watching a “funny film”); T

HE PSYCHOLOGY OF HUMOR, supra note 14, at 331 (“[O]f all the

health benefits claimed for humor and laughter, the most consistent research support has

been found for the hypothesized analgesic effects.”).

2011] Defamatory Humor and Incongruity’s Promise 111

effects of humor and the effects of other positive emotions or effects, such

as mirth, playfulness, and optimism, which often accompany humor.

A common approach to the literature on the humor/health connection

distinguishes among humor styles, often using a binary matrix separating

“adaptive” humor styles from “maladaptive” humor styles.

Not

surprisingly, scholars often denominate superiority humor as maladaptive,

associating it with depression, anxiety, and aggressiveness.

By contrast,

they correlate socially adaptive humor with reduced anxiety and

depression, as well as increased self-esteem.

Empirical findings are

nuanced, however, suggesting that the effects of different humor vary

according to context. Thus, lighthearted humor (such as incongruity humor

and witticisms) might best enable the staff of a mental health facility to

deal with the challenges of the mentally ill.

By contrast, aggressive

superiority humor may be a more effective survival mechanism for

concentration camp prisoners.

As such, the adaptive/maladaptive formula

may be oversimplistic, since negative or superiority humor can result in

positive consequences, such as relieving one’s own stress

and bolstering

one’s own self-esteem,

while at the same time destroying personal

relationships and eliminating social support structure.

91. See, e.g., Jaak Panksepp & Jeff Burgdorf, “Laughing” Rats and the Evolutionary

Antecedents of Human Joy?, 79

PHYSIOLOGY & BEHAV. 533 (2003) (noting that positive

emotions such as joy and love may share the same brain circuits as humor).

92. See, e.g., Sense of Humor and Physical Health, supra note89, at 14 (describing a

“multidimensional approach” that differentiates aspects of humor that “are potentially

beneficial to well-being” from “those that are potentially detrimental”).

93. See, e.g., Nicholas A. Kuiper et al., Humor is Not Always the Best Medicine:

Specific Components of Sense of Humor and Psychological Well-Being, 17 HUMOR: I

NT’L

J. HUMOR RES. 135, 135, 139–141 (2004).

94. Id. at 135–36,

160–62.

95. See, e.g., Joan Sayre, The Use of Aberrant Medical Humor by Psychiatric Unit

Staff, 22

ISSUES MENTAL HEALTH NURSING 669, 672 (2001) (suggesting that aggressive

humor toward patients may “create a nontherapeutic distancing from patient” and promote

cynicism and morale problems among psychiatric staff).

96. T

HE PSYCHOLOGY OF HUMOR, supra note 14, at 288–306 (2007) (summarizing

studies of context dependency on mental health effects of different humor types, including

report on humor evidenced in World War II concentration camps). The prevalence of

aggressive humor in the context of severe hardship, such as a concentration camp, may be

explained by the need to develop a form of hard-heartedness or a “suspension of sensibility”

necessary to cope with “the hostile and cruel content of many funny stories.” Concept of

Incongruity, supra note 42, at

56.

97. This is, after all, the underpinning of Freud’s theory of tendentious wit. F

REUD,

supra note 32, at 91–106 (cataloguing the function of “tendentious” jokes to release tension

about sex and excrement, hostilities toward others, and cynicism about social forces).

98. Lawrence La Fave, Jay Haddad & William A. Maesen, Superiority, Enhanced

Self-Esteem, and Perceived Incongruity Humour Theory, in H

UMOUR AND LAUGHTER:

112 Southern California Interdisciplinary Law Journal [Vol. 21:93

2. Humor’s Consequences for Groups

Thinkers from many disciplines herald humor’s potential to contribute

to civilization on an aggregate level, enhancing both society and culture.

Throughout society, we celebrate humor as an art form and important

expressive mode.

100

Sociologists, anthropologists, folklorists, and others

find the raw material of humor crucial for studying and understanding

cross-cultural differences.

101

And, of course, humor has a key role in

regulating social norms, enabling powerful expressions of disapproval and

approval through gradations of wit ranging from sugar-coated quips to acid

barbs. In this way, humor provides a mechanism for social commentary—

allowing a commentator to “tell[] the truth with a laugh.”

102

As it does with individuals, negative humor can have subtle and

apparently contradictory effects on groups. Sharing or observing a

humorous repartee over words can assist a group in establishing or

exchanging their identity.

103

A group can reinforce its own identity by

sharing negative humor about its superiority to others, often at the expense

of others.

104

Likewise, humor can perform the apparently inconsistent role

of enabling “collaborative”

105

resolution of social tensions, while also

THEORY, RESEARCH, AND APPLICATIONS 63, 86 (Anthony J. Chapman & Hugh C. Foot eds.,

1976).

99. Sense of Humor and Physical Health, supra note89, at 16 (discussing the double-

edged relationship between humor and health).

100. Folklorist Elliott Oring, for example, describes his view on humor as follows: I

consider jokes and other forms of humorous expression to be meaningful and sometimes

significant communications. I also believe humorous expressions to be art. Some jokes are

truly beautiful, and those who create them, reshape them, and orally purvey them are often

genuine artists . . . . Humor and laughter are cultural universals. They are a condition of

humanity. Humor could be considered trivial only from a perspective that holds humanity

itself to be trivial.

ORING, supra note 66, at ix–x.

101. Examples are legion. Recent works spanning many different cultures include

HRISTIE DAVIES, JOKES AND THEIR RELATION TO SOCIETY (1998) (exploring jokes in a

number of cultures, including Polish, Chinese, Japanese, Irish, British, Australian, and

Palestinian); G

ISELINDE KUIPERS, GOOD HUMOR, BAD TASTE: A SOCIOLOGY OF THE JOKE

(2006) (exploring jokes in the context of primarily Dutch and United States culture).

102. H

ORACE, SATIRES § I.1.25–26 (P. Michael Brown trans., Aris & Phillips 1993).

103. Beth A. Quinn, The Paradox of Complaining: Law, Humor, and Harassment in

the Everyday Work World, 25 L

AW & SOC. INQUIRY 1151, 1165 (2000) (observing how the

insider humor resulting from a “common history of word play” can help establish group

solidarity).

104. See id. at 1165 (noting how a group can define itself by “degrading those who are

outside”) (emphasis added).

105. M

ICHAEL MULKAY, ON HUMOUR: ITS NATURE AND PLACE IN MODERN SOCIETY

152–53 (1988) (analyzing humor and social structure).

2011] Defamatory Humor and Incongruity’s Promise 113

damaging community structure by providing a platform for communal

“inconsistencies and irrationalities.”

106

This contradictory potential provides an especially challenging puzzle

in understanding the group dynamics of stereotype and discrimination. One

can easily imagine how humorous taunting based on racial, ethnic, or

gender characteristics can libel an entire group. Yet the taunting can

backfire by either overplaying or undermining the stereotypes that it trades

on.

107

Additionally—as in the circumstance where a group appropriates for

itself a derogatory term used by others to name the group—humor can suck

the power out of stereotypes. Humor can release inhibition or tension

related to group differences. As such, even negative humor is a positive

instrument for members of a disempowered group to assert themselves.

108

How does humor accomplish this? At least a partial explanation lies in

humor’s invitation for people to let down their guards and to reduce their

cognitive and emotional resistance to what others are saying.

109

As a result

of its defense-lowering potential, humor can provide a “safe harbor” for

individuals and groups to process sensitive subject matter.

110

Examples of two group contexts where scholars recognize humor’s

significant positive potential are education and the workplace. Recent

trends in education promote humor to raise student interest and reduce

anxiety about learning. Although empirical studies on the actual effect of

humor on learning are relatively sparse, research does suggest that

moderated humor in the classroom increases student interest, enjoyment

level, and perception of how much they learn.

111

As for joking in the

workplace, scholars recognize that superiority humor can damage

106. Id.

107. J

OSEPH BOSKIN, REBELLIOUS LAUGHTER: PEOPLE’S HUMOR IN AMERICAN CULTURE

38 (1997) (describing humor’s apparently contradictory potential of reinforcing “pejorative

images” and inverting stereotypes).

108. See, e.g., Charles Winick, The Social Contexts of Humor, 26 J.

COMM. 124, 126–

28 (1976) (describing how groups use humor to manage power conflicts); C

OHEN, supra

note 73, at 44 (describing how the disempowered often joke about their oppressors).

109. Podlas, supra note 83, at 512 (arguing that humor lowers “emotional (and

intellectual) defenses, thereby avoiding resistance” of listeners).

110. Id. (suggesting that humor creates this “safe harbor” by reducing anxiety).

111. Melissa Bekelja Wanzer & Ann Bainbridge Frymier, The Relationship Between

Student Perceptions of Instructor Humor and Students’ Reports of Learning, 48 C

OMM.

EDUC. 48, 55 (1999) (reporting on positive correlation between humor on one hand and

student enjoyment and learning perception on the other hand); Stephen B. Fortson &

William E. Brown, Best and Worst University Instructors: The Opinions of Graduate

Students, 32 C.

STUDENT J. 572, 573 (1998) (identifying correlation between teacher humor

and student opinions of their effectiveness).

114 Southern California Interdisciplinary Law Journal [Vol. 21:93

cohesiveness and—when egregious—significantly damage employment

conditions for minority group members and women.

112

Nonetheless,

scholars identify humor’s substantial contributions to forging bonds

between coworkers, developing organizational identity, and enabling

employees to negotiate hierarchical relationships.

113

Lawsuits based on defamatory humor appear to occur more often in

the workplace

114

than in the educational context.

115

Even so, the results of

all defamatory humor suits that make their way into the court system send

an important message about the limits of appropriate humor deployed in all

group settings, including education and employment. I, thus, turn to a

general review of defamation suits that have the effect of regulating humor.

III. DEFAMATION LAW, THE FIRST AMENDMENT, AND HUMOR

REGULATION

Courts regulate humor all the time. The most obvious examples are

the criminal cases where courts decide whether to punish for joking about

112. For example, sexual harassment employment discrimination claims under 42

U.S.C. § 2000e-2(a) (2006) (Title VII) are often premised on a pattern of harassing humor.

In fact, the United States Department of Labor released a pamphlet admonishing that

actionable discrimination can result where a coworker’s sexual jokes make it hard for a

plaintiff to work. Sexual Harassment: Know Your Rights, U.S.

DEP’T OF LABOR (1994),

available at http://www.empowermentzone.com/harass.txt. For a critique of the social

ramifications of this pamphlet, see DAVID E. BERNSTEIN, YOU CAN’T SAY THAT! THE

GROWING THREAT TO CIVIL LIBERTIES FROM ANTIDISCRIMINATION LAWS 26 (2003)

(describing the aforementioned pamphlet and taking the position that the hostile

environment sexual harassment law violates free speech principles); Eugene Volokh, What

Speech Does “Hostile Work Environment” Harassment Law Restrict?, 85 G

EO. L.J. 627,

633–37 (1997) (citing the pamphlet and arguing that sexual harassment law suppresses

“core protected speech”).

113. See, e.g., J

ERRY PALMER, TAKING HUMOUR SERIOUSLY 59 (1994) [hereinafter

AKING HUMOUR SERIOUSLY] (observing that humor “functions to ease tensions caused by

the contradiction between hierarchy and collegiality”); Joseph Alan Ullian, Joking at Work,

26 J.

COMM. 129, 129 (1976) (analyzing how banter and joking help organizations remain

stable in the face of change); Humor and Laughter, supra note 28, at 203 (noting humor’s

ability to strengthen human relationships and provide enhanced feelings of closeness within

working environments).

114. For a review of cases, see John Bruce Lewis & Gregory V. Mersol, Opinion and

Rhetorical Hyperbole in Workplace Defamation Actions: The Continuing Quest for

Meaningful Standards, 52 D

EPAUL L. REV. 19, 56–73 (2002).

115. Possible liability arising out of social networking sites may provide fertile ground

for such defamatory humor cases related to the school environment. In the meantime, there

are plenty of non-humor defamation cases arising in the context of education—with

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), being a prominent example. Milkovich

was a defamation suit based on alleged perjury by a high school wrestling coach.

2011] Defamatory Humor and Incongruity’s Promise 115

such matters as shooting the president

116

or bombing an airplane.

117

Courts

also regulate humor directly when asked to enjoin communication, such as

a song parody.

118

More indirectly, courts regulate humor when evaluating

civil liability claims, which can derive from humor-inflicted injury in a

broad range of contexts, such as contract, trademark infringement, and

employment discrimination, to name a few. Where a court endorses civil

liability, the resulting damage verdict sends a deterrent message to others

who consider making a similar joke. Tort actions to remedy dignitary

harms is one context in which plaintiffs frequently request that courts

impose damages and thereby send this deterrence message for hurtful

jokes.

119

Of all the dignitary harms, defamation is probably the most

common theory plaintiffs invoke to remedy hurt flowing from a joke.

When asked to regulate humor in the civil justice context, United

States courts occasionally acknowledge humor’s individual and social

benefits, which a damage judgment could discourage or undermine.

120

116. See 18 U.S.C. § 871 (2006) (criminalizing threats against the President); Watts v.

United States, 394 U.S. 705, 706–08 (1969) (finding that the defendant’s remarks did not

violate 18 U.S.C. § 871, and stressing the context of the remarks and that listeners reacted

with laughter).

117. See 49 U.S.C. § 46507 (2006) (criminalizing false information and threats in the

context of aviation); United States v. Cothran, 286 F.3d 173, 176 (3d Cir. 2002) (finding

that “[a] bad joke” could violate 49 U.S.C. § 46507). See generally Gilbert, supra note 10, at

864–66 (describing jokes ridiculing the Bush Administration that were subject to Secret

Service investigation).

118. See, e.g., Austl. Broad. Corp. v Hanson [1998] QCA 306 (28 September 1998)

(Austl.) (enjoining as defamatory a song parody of a Member of the Queensland House of

Representatives).

119. Dignitary harms in which humor is frequently at issue include defamation, false

light, and invasion of privacy. Sometimes, right of publicity (which concerns a person’s

right to protect the commercial value of her or his own name) is also included in the list of

dignity harms. This right also arises in the humor context, particularly in the context of

parody and satire.

120. See, e.g., White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1519 (9th Cir. 1993)

(asserting that “[p]arody, humor, irreverence are all vital components of the marketplace of

ideas”); L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 32 (1st Cir. 1987) (stating

that parody is “deserving of substantial freedom—both as entertainment and as a form of

social and literary criticism” (quoting Berlin v. E.C. Publ’ns, Inc., 329 F.2d 541 (2d Cir.

1964))); Elsmere Music, Inc. v. Nat’l Broad. Co., 623 F.2d 252, 253 (2d Cir. 1980) (per

curiam) (rejecting a copyright infringement claim, and proclaiming the belief “that, in

today’s world of often unrelieved solemnity, copyright law should be hospitable to the

humor of parody”); McIntyre v. Manhattan Ford, Lincoln-Mercury, Inc., 669 N.Y.S.2d 122,

124 (App. Div. 1997) (noting in the context of an employment discrimination case that

“good-natured [humor] . . . may relieve the tensions imposed by the pressures of daily life”);

Salomone v. Macmillan Publ’g Co., 411 N.Y.S.2d 105, 109 (Sup. Ct. 1978), rev’d on other

grounds, 429 N.Y.S.2d 441 (App. Div. 1980) (declaring that “[w]ithout humor[—]the

ability to recognize the ridiculous in any situation[—]there can be no perspective”).

116 Southern California Interdisciplinary Law Journal [Vol. 21:93

connection with discussing humor’s advantages, courts sometimes (but not

always) frame their concerns in terms of free speech values. One area

where freedom of expression consistently features prominently in United

States cases, however, is defamation. This is unsurprising, given the long

established linkage between the First Amendment and defamation law, and

the repeated efforts of the United States Supreme Court to calibrate a

careful balance between reputational and free speech values.

121

In this section, I review efforts in the United States to use First

Amendment doctrine to limit the reach of state defamation actions

regulating humor, starting first with the basics of defamation liability and

then moving on to First Amendment case law. I critique the primary

doctrinal technique that United States courts use to accomplish this task,

specifically the fact/opinion distinction, and show its limitations. I then

survey Australian defamatory humor cases and glean lessons for United

States courts.

A. U

NITED STATES DEFAMATION LAW

Defamation is a tort theory designed to protect an individual’s interest

in preserving personal reputation.

122

As it is formally defined under state

common law in the United States, a defamatory statement “tends so to

harm the reputation of another as to lower him in the estimation of the

community or to deter third persons from associating or dealing with

him.”

123

The standard elements of the defamation cause of action, however,

require not only that the plaintiff show that a statement is defamatory, but

121. While not the first case concerning defamation and the First Amendment, New

York Times Co. v. Sullivan, 376 U.S. 254 (1964), stands as the beginning of the Court’s

contemporary efforts to strike this balance. See generally ERWIN CHEMERINSKY,

CONSTITUTIONAL LAW: PRINCIPLES AND POLICES 1045 (3d ed. 2006) (citing NewYork Times

Co. v. Sullivan as the beginning of the Court’s effort to “balance the need to protect

reputation . . . with the desire to safeguard expression”).

122. In an influential law review article, Robert Post observed that reputation is a

complex concept and that defamation law has sought to protect a least three aspects:

“reputation as property, as honor, and as dignity.” Robert C. Post, The Social Foundations

of Defamation Law: Reputation and the Constitution, 74 C

ALIF. L. REV. 691, 693 (1986).

123. R

ESTATEMENT (SECOND) OF TORTS § 559 (1977). The state law landscape of

defamation law is relatively uniform. To the extent that variation exists in this area, the law

of New York and California is most pertinent to this paper, since these two entertainment

capitals generate the most defamatory humor opinions. Sometimes, states provide a fuller

picture of what constitutes defamation than the bare-boned Restatement defamation. See,

e.g., Frank v. Nat’l Broad. Co., 506 N.Y.S.2d 869, 871 (App. Div. 1986) (stating that

defamatory speech tends to expose the plaintiff “to public contempt, ridicule, aversion or

disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to

deprive him of their intercourse in society” (quoting Sydney v. MacFadden Newspaper

Publ’g Corp., 151 N.E. 209, 210 (N.Y. 1926))).

2011] Defamatory Humor and Incongruity’s Promise 117

also that the statement is false.

124

Here lies the problem with regulating

defamatory humor: it does not fit easily into the paradigm of truth and

falsity. Humor is by definition not “serious,” thus suggesting that it

operates outside the realm of anything one could verify. Yet—as a

society—we also know that “many a truth is said in jest.”

United States courts and commentators have taken a variety of

approaches to the problem of fitting the round peg of humor into the square

hole of defamation. Some have said that at least one type of humor—

parody—is not capable of being defamatory, reasoning that defamation is

“mutually exclusive of parody.”

125

Some have alluded to the notion that all

humor deserves immunity from liability.

126

124. The Second Restatement sets forth the actual elements of defamation as follows:

To create liability for defamation there must be:

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(d) either actionability of the statement irrespective of special harm or the existence

of special harm caused by the publication.

ESTATEMENT (SECOND) OF TORTS § 558 (1977).

125. 50 A

M. JUR. 2D Libel and Slander § 156 (2011). Here is the full statement of this

position:

By definition, defamation requires a false statement of fact; parody, to the degree it

is perceived as parody by its intended audience, conveys the message that it is not

the original and, therefore, cannot constitute a false statement of fact . . . . If a

parody could be actionable because, while recognizable as a joke, it conveyed an

unfavorable impression, very few journalistic parodies could survive. It is not for the

court to evaluate a parody as to whether it went too far, for the purposes of a libel

claim; as long as it is recognizable to the average reader as a joke, it must be

protected or parody must cease to exist.

Id. (footnotes omitted). The Indiana Court of Appeals specifically adopted this approach in

Hamilton v. Prewett, 860 N.E.2d 1234, 1244 (Ind. Ct. App. 2007). The court first

acknowledged that a humorous statement could be defamatory. Id. at 1245 (“A defendant

who couches a defamatory imputation of fact in humor cannot simply avoid liability by

dressing his wolfish words in humorous sheep’s clothing.”). The court nonetheless

identified parody as “another beast that goes beyond mere humor”). See also Garvelink v.

Detroit News, 522 N.W.2d 883, 887 (Mich. Ct. App. 1994) (stating that “even if the writer

is motivated by hatred or ill” a parody is still not to be actionable because it is “in the area of

public debate concerning public officials”).

126. For example, Robert Sack argues:

Although perhaps annoying or embarrassing, humorous statements will typically

have no substantial and permanent impact on reputation and therefore ought not to

be held to be defamatory. Incidental jibes and barbs may be humorous forms of

epithets or “mere name-calling” and are not actionable under settled law governing

such communications. And it is on these bases that most humor cases are decided.

Humor is usually understood to be humor and to convey no serious, objective factual

allegations about its target. Although perhaps annoying or embarrassing, humorous

118 Southern California Interdisciplinary Law Journal [Vol. 21:93

The more common approach, however, has been for courts to

differentiate humor that merits defamation liability from humor that does

not. The common law privilege of fair comment long performed this

sorting process, insulating criticism relating to “matters of public concern”

from liability.

127

As lower courts applied this privilege, they also made a

distinction between humorous assertions that were based on fact (which

were actionable) and assertions based on opinion (which were not

actionable). The distinction developed into an important common law

concept. Courts further refined the concept, and the Restatement (Second)

of Torts

now provides that “‘[a] defamatory communication may consist of

a statement in the form of an opinion, but a statement of this nature is

actionable only if it implies the allegation of undisclosed defamatory facts

as the basis of the opinion.’”

128

The United States Supreme Court also found use for the distinction in

First Amendment doctrine; indeed, it is likely neither possible nor fruitful

to segregate constitutional and common law sources of the fact/opinion

distinction.

129

For common law purposes, however, it is important to note

that the comments to Restatement (Second) section 566 specifically apply

the fact/opinion distinction to humor, stating that “[h]umorous writings,

verses, cartoons or caricatures that carry a sting and cause adverse rather

statements will have no substantial impact on reputation and therefore ought not to

be held to be defamatory. Incidental jibes and barbs may be humorous forms of

epithets or “mere name-calling” and are not actionable under settled law governing

such communications. And it is on these bases that most humor cases are decided.

ACK, supra note 80, § 5:5.2[G][1] (footnotes omitted). See also Salomone v. Macmillan

Publ’g Co., 411 N.Y.S.2d 105, 108 (Sup. Ct. 1978), rev’d on other grounds, 429 N.Y.S.2d

441 (App. Div. 1980) (“Is there a recognized exception from the laws of libel when words

otherwise defamatory are uttered in a humorous context? Of course, common sense tells us

there must be.”); Freedlander v. Edens Broad., Inc., 734 F. Supp. 221, 228 & n.13 (E.D. Va.

1990) (concluding that song parody amounted to “comedic expression” and “a protected

form of free speech” whether or not the song constituted “protected opinion”).

127. R

ESTATEMENT (FIRST) OF TORTS § 606 (1938). Although the First Restatement

provides a uniform standard, lower courts varied in how they applied the fair comment

privilege. King, supra note 10, at 883–84. In his comprehensive study of parody cases,

Professor King reports that the Second Restatement’s section 566

provides an approach to

defamation that “subsume[s] the prior rule for fair comment, essentially obviating the need

for it.” Id. at

891–92.

128. King, supra note 10, at

891–92 (quoting RESTATEMENT (SECOND) OF TORTS § 566

(1977)).

129. Id. at

882 (noting that the common law and constitutional sources for the

distinction are “intertwined”).

See also SACK, supra note 80, at § 5:5.2[G][1] (“Much humor

is a form of opinion or criticism protected under the common-law defense of ‘fair comment’

or the doctrines suggested by the Supreme Court cases: that there are ‘constitutional limits

on the type of speech which may be the subject of state defamation actions . . . .’”).

2011] Defamatory Humor and Incongruity’s Promise 119

than sympathetic or neutral merriment may be defamatory.”

130

Expanding

on this point, the comments to section 566 also state that no defamation

occurs where a communication evinces “a harsh judgment upon known or

assumed facts,” since—in that event—the communication “is no more than

an expression of opinion of the pure type . . . .”

131

B. F

IRST AMENDMENT DOCTRINE

The central challenge of regulating defamation actions is calibrating

the appropriate balance of reputational and free expression values. In

developing the First Amendment’s role in this balance, the Supreme Court

first targeted the identity of the defamation plaintiff, reasoning that the

United States’ commitment to robust debate on public issues justified

restricting defamation laws’ protection for public officials

132

and public

figures.

133

The Court then turned its focus to the subject matter of

defamation actions, holding that the First Amendment restricted defamation

actions by private figures based on “matters of public concern.”

134

For

similar reasons, the Court also excised expressions of “opinion” from

defamation liability.

135

Articulating a marketplace of ideas rationale in Gertz v. Robert Welch,

Inc., the Supreme Court counterposed to “opinion” the concept of false

factual statements.

136

The Gertz Court famously declared: “However

pernicious an opinion may seem, we depend for its correction not on the

conscience of judges and juries but on the competition of other ideas.”

137

After lower courts struggled with the scope of constitutional protection of

opinions for fifteen years, the Court took up the concept again in Milkovich

v. Lorain Journal Co.

138

While refusing to articulate a one-size-fits-all

definition of opinion or to create “an artificial dichotomy between

‘opinion’ and fact,” the Court found First Amendment “protection for

statements that cannot ‘reasonably [be] interpreted as stating actual

130. King, supra note 10, at 893 (quoting RESTATEMENT (SECOND) OF TORTS § 566 cmt.

c (1977)).

131. Id. (quoting R

ESTATEMENT (SECOND) OF TORTS § 566 cmt. d (1977)).

132. See e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270, 279–80 (1964)

(defamation action by public official).

133. See e.g., Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967) (defamation action by

public figure).

134. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).

135. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

136. Id. at 340.

137. Id. at 339–40.

138. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

120 Southern California Interdisciplinary Law Journal [Vol. 21:93

facts.’”

139

One scholar has explained that, although the Court professed to

reject the fact/opinion dichotomy, the Court merely substituted that

“dichotomy . . . with a new dichotomy between ‘fact and non-fact.’”

140

A review of the core values animating the First Amendment sheds

light on what the Supreme Court was trying to achieve with these

dichotomies. Received wisdom suggests that in protecting free expression,

the First Amendment promotes truth seeking, democratic self-governance,

social tolerance, and individual autonomy.

141

On a simplistic level, one can

appreciate how courts can serve these values by protecting opinions (or

non-facts), whereas in some cases one can undermine the values by

allowing false facts to flourish in public debate. While opinions can be

countered with debate, the dissemination of known false facts does not

facilitate society’s search for truth. Likewise, expression of opinions can

assist voters in making informed electoral choices and governmental

officials in making well-considered policy decisions.

142

False facts, however, can hinder wise governmental choices. Allowing

the free flow of all opinions models open-mindedness; similarly,

expression of personal opinion also advances individual autonomy and a

robust sense of personhood. While allowing communication of false facts

may also foster personal autonomy and tolerance of the speaker, the false

facts impose a countervailing toll on both autonomy and tolerance of the

individual about whom the facts concern. The damage to reputation

expresses intolerance toward the individual and detracts from the

individual’s sense of personhood.

143

139. Id. at 20 (quoting Hustler Magazine v. Falwell, 485 U.S. 46, 50 (1988)). The focus

on factual accuracy in defamation is somewhat unique for First Amendment analysis.

Indeed, Frederick Schauer has forcefully and persuasively argued that First Amendment

doctrine is too tolerant of factual inaccuracy. Frederick Schauer, Facts and the First

Amendment, 57 UCLA

L. REV. 897, 918–19 (2010) (bemoaning tolerance of First

Amendment theory and doctrine for “widespread public factual falsit[ies]”). Outside of the

defamation context, the First Amendment protects factual falsity—particularly in the area of

public debate. See id. at 915 (concluding that, given the extension of the New York Times

Co. v. Sullivan actual malice standard to public figures, the current state of constitutional

doctrine does not allow governmental regulation of statements of “public non-commercial

factual falsity”); Brown v. Hartlage, 456 U.S. 45, 61 (1982) (holding that the only remedies

available against false or misleading campaign speech would be those that satisfied the New

York Times Co. v. Sullivan actual malice standard).

140. 1 R

ODNEY SMOLLA, LAW OF DEFAMATION § 6:21 (2d ed. 2011).

141. C

HEMERINSKY, supra note 121, at 925–30 (reviewing various interests animating

First Amendment doctrine).

142. Id. at 926 (discussing free speech’s role in ensuring a functioning democracy).

143. See id. at 929–30 (discussing the complexities of free speech’s role in advancing

“personhood and autonomy” as well as “promoting tolerance”). Alluding to the conflicting

2011] Defamatory Humor and Incongruity’s Promise 121

Concomitantly with its efforts to demarcate the scope of opinion

protection, the Supreme Court also tracked concern with First Amendment

values in reckoning with the appropriate level of protection for colorful

language. The first cases in this area dealt with name-calling rather than

jokes.

144

Nonetheless, the cases directly wrestled with the type of vivid

language jokesters often use. First, in Greenbelt Cooperative Publishing

Assocationn v. Bresler, the Court held that that a newspaper story alleging

“blackmail” could not be the basis for defamation liability because “even

the most careless reader must have perceived that the word was no more

than rhetorical hyperbole, a vigorous epithet . . . .”

145

Likewise, the Court

in Old Dominion Branch No. 496, National Association of Letter Carriers

v. Austin found First Amendment protection for the description “scab” as

applied to nonunion members, explaining that the term is “merely

rhetorical hyperbole, a lusty and imaginative expression of the

contempt . . . .”

146

Finally, in a case that explicitly grappled with humor, Hustler

Magazine v. Falwell, the Court found that Reverend Jerry Falwell could not

recover in tort for a parody, unless he showed that the defendant acted with

knowledge of the falsity of facts asserted in the communication or with

reckless disregard for the truth or falsity of any facts asserted.

147

In the

course of its reasoning, the Court celebrated the role of parodies in our

cultural tradition, noting that our national “political discourse would have

been considerably poorer without them.”

148

Drawing from earlier First

Amendment precedent focusing on the relationship between defamation

and falsehoods, the Court held that the parody in the case could not have

reasonably been interpreted as asserting “actual facts about [Falwell] or

interest of the speaker and the subject of the speech, Rodney Smolla argues that an

“intelligent argument concerning the fact/opinion distinction cannot be marshalled without

resort to discussion” of the distinction’s attempt to protect reputation, while preserving an

opportunity for robust criticism. S

MOLLA, supra note 140, at § 6:21.

144. Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 13–14 (1970).

145. Id. at 13–14.

146. Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S.

264, 286 (1974).

147. Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988). Hustler concerned the tort

of intentional infliction of emotional distress, but the Court treated the First Amendment

issues as one would have expected it to in a defamation case. Cf. Snyder v. Phelps, 131 S.

Ct. 1207 (2011) (confirming First Amendment obstacles to recovery for intentional

infliction of emotional distress involving a matter of public concern rather than a public

figure).

148. Hustler, 485 U.S. at 55.

122 Southern California Interdisciplinary Law Journal [Vol. 21:93

actual events in which he participated.”

149

The Court thus reinforced the

principle that the First Amendment shields from liability communications

that are not reasonably interpreted as factual in nature.

C. T

HE FACT/OPINION DISTINCTION

1. Lower Court Experience

Following the lead of the Supreme Court, as well as common sense

notions of good judging, lower courts generally go out of their way to

avoid making an explicit value judgment about the humor at issue in

defamation suits. Courts protest that they are not deciding whether a

putative joke works as comedy,

150

and that the First Amendment does not

cast them in the role of “polic[ing] bad taste.”

151

Explaining this hands-off

approach, one court cited humor’s “intensely subjective” nature and

observed that “[b]lank looks or even active loathing may be engendered by

a statement or cartoon that evokes howls of laughter from another. What is

amusing or funny in the eyes of one person may be cruel and tasteless to

someone else.”

152

Given these limitations, lower courts in the United States evaluate

allegedly defamatory humor with the eyeglasses of the reasonable reader or

fact finder, a hypothetical entity whose virtues are routinely celebrated by

courts.

153

In deciding whether a reasonable reader or fact finder would

149. Id. at 52, 57.

150. See, e.g., Polygram Records, Inc. v. Superior Court, 216 Cal. Rptr. 252, 259 (Ct.

App. 1985) (explaining that the “proper focus of judicial inquiry . . . is not whether the

allegedly defamatory statement succeeds as comedy, nor whether its audience thought it to

be humorous . . .”); New Times, Inc. v. Isaacks, 146 S.W.3d 144, 158 (Tex. 2004)

(explaining that the proper legal question is not whether “all readers actually . . . ‘got the

joke’”); Salomone v. MacMillan Publ’g Co., 411 N.Y.S.2d 105, 109 (Sup. Ct. 1978)

(adopting the proposition in a defamation action that judges should not act as

“literary . . . critic[s]”), rev’d on other grounds, 429 N.Y.S.2d 441 (App. Div. 1980). Cf.

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583 (1994) (observing in the context of

a copyright claim that the “First Amendment protections do not apply only to those who

speak clearly, whose jokes are funny, and whose parodies succeed”); Univ. of Notre Dame

Du Lac v. Twentieth Century-Fox Film Corp., 256 N.Y.S.2d 301, 307 (App. Div.)

(observing in the context of an unfair competition action that judges should “not import the

role of literary or dramatic critic into our functioning as Judges in this case . . . . Whether

[the humor] is good burlesque or bad, penetrating satire or blundering buffoonery, is not for

us to decide”), aff’d by order, 207 N.E.2d 508 (N.Y. 1965).

151. New Times, Inc., 146 S.W.3d at 166. See S.F. Bay Guardian, Inc. v. Superior

Court, 21 Cal. Rptr. 2d 464, 468 (Ct. App. 1993) (stating that the court’s role is not to

decide whether a joke “went ‘too far’”).

152. Salomone, 411 N.Y.S.2d at 109.

153. As the court explained in Patrick v. Superior Court, a reasonable reader “[i]s no

dullard. He or she does not represent the lowest common denominator, but reasonable

2011] Defamatory Humor and Incongruity’s Promise 123

interpret the communication as suggesting actual facts, lower courts often

rely on the line of Supreme Court cases dealing with exaggeration,

deciding whether to assign the label “rhetorical hyperbole” or “vigorous

epithet” to the putative joke.

154

Sometimes, however, lower courts focus on

the fact/opinion distinction, without reliance on either the hyperbole or

epithet characterization.

155

In at least one instance, a court concluded that a

song parody contained sufficient rhetorical hyperbole and indication of

comedic expression that it merited protection from liability, whether or not

it constituted protected opinion.

156

When drawing from the fact/opinion distinction, courts ask whether

the humor contains material that a reasonable reader or fact finder could

interpret as suggesting actual facts.

157

The notion is that humor suggests

intelligence and learning. He or she can tell the difference between satire and sincerity.”

Patrick v. Superior Court, 27 Cal. Rptr. 2d 883, 887 (Ct. App. 1994). See also New Times,

Inc., 146 S.W.3d at 158 (describing a reasonable reader as one who exercises care and

prudence, and explaining that “[i]ntelligent, well-read people act unreasonably from time to

time, whereas the hypothetical reasonable reader . . . does not”).

154. See, e.g., Keller v. Miami Herald Publ’g Co., 778 F.2d 711, 716 (11th Cir. 1985)

(evaluating an editorial cartoon referring to a nursing home as a haunted house by reference

to the fact/opinion dichotomy as well as by reference to “hyperbole, exaggeration, and

caricature”); Pring v. Penthouse Int’l, Ltd., 695 F.2d 438, 441 (10th Cir. 1982) (evaluating a

beauty contest spoof by reference to rhetorical hyperbole case law and deciding that the

spoof could not be interpreted as providing actual facts since the spoof presented

“impossibility and fantasy within a fanciful story”); Hamilton v. Prewett, 860 N.E.2d 1234,

1245–47 (Ind. Ct. App. 2007) (deciding whether parody is protected as hyperbole and

asserting that parody “is speech that one cannot reasonably believe to be fact because of its

exaggerated nature”); Newman v. Delahunty, 681 A.2d 671, 683–84 (N.J. Super. Ct. Law

Div. 1994) (evaluating campaign literature for defamation liability by reference to whether

it expressed facts or was “rhetorical hyperbole” or a “vigorous epithet”); Ferreri v. Plain

Dealer Publ’g Co., 756 N.E.2d 712, 721–22 (Ohio Ct. App. 2001) (explaining that a cartoon

may be defamatory only if a “reasonable person” would conclude that it contained a factual

assertion rather than “exaggeration and hyperbole”).

155. See, e.g., Couch v. San Juan Unified Sch. Dist., 39 Cal. Rptr. 2d 848 (Ct. App.

1995) (deciding that mock examination in a student newspaper could not be interpreted as

suggesting actual fact or anything other than parody); McKimm v. Ohio Elections Comm’n,

729 N.E.2d 364, 371–72 (Ohio 2000) (evaluating whether election literature cartoons could

be interpreted by reasonable reader as asserting facts); New Times, 146 S.W.3d at 158

(evaluating whether a newspaper spoof was subject to defamation liability by analyzing

whether the publication could reasonably be understood as describing real facts).

156. Freedlander v. Edens Broad., Inc., 734 F. Supp. 221, 228 n.13 (E.D. Va. 1990)

(“Having found that the song is a comedic expression based on fact, the Court deems it

unnecessary to pursue defendant’s argument that the song constitutes protected opinion.”).

157. See, e.g., Knievel v. ESPN, 393 F.3d 1068, 1071, 1077–78 (9th Cir. filed Jan. 4,

2005) (finding that a photograph with the caption “Evel Knievel proves that you’re never

too old to be a pimp” could not reasonably be interpreted as actual fact); Dworkin v. Hustler

Magazine Inc., 867 F.2d 1188, 1193–94 (9th Cir. 1989) (dismissing a defamation claim by

an anti-pornography advocate depicted in a Hustler cartoon because a reasonable reader

124 Southern California Interdisciplinary Law Journal [Vol. 21:93

real facts and is thus capable of defamatory meaning and threatening

reputational values. A contrary conclusion, that humor does not suggest

real facts, brings the communication into the opinion realm, which is more

clearly protected by free expression values.

2. The Limitations of the Fact/Opinion Distinction

So we see that the fact/opinion dichotomy is not only well-intended,

but also reflects an intelligent effort to accommodate First Amendment

values. Nonetheless, courts are having a devil of a time trying to chart a

predictable line between fact and opinion. Indeed, one scholar proclaims

that there are “as many tests for identifying opinion as there are home

remedies for hiccups.”

158

Although the Supreme Court’s instruction that

courts evaluate whether an assertion includes provably false facts seems

relatively straightforward,

159

lower courts have indulged an impulse to

develop complicated multifactor tests.

160

Understandably, courts are drawn to determinate doctrines that appear

definitional and well designed for consistent application. No doubt the tests

that have emerged in this area reflect that impulse. Yet⎯as in all matters

related to defining truth⎯analysis becomes highly abstract and contested

as soon as one puts sincere intellectual effort into the inquiry. To provide

just one example of the crystalline distinctions that have emerged, much

ink has been poured over whether the First Amendment protects only

could not interpret the cartoon as conveying a statement of fact); Sagan v. Apple Computer,

Inc., 874 F. Supp. 1072, 1075–76 (C.D. Cal 1994) (explaining in a defamation action based

on changing computer code name from “Carl Sagan” to “Butt-Head Astronomer” that using

“the figurative term ‘Butt-Head’” undermines the possibility that “a reasonable fact finder

could conclude that the published statements imply a provably false factual assertion”);

Filippo v. Lee Publ’ns, Inc., 485 F. Supp. 2d 969, 980 (N.D. Ind. 2007) (stating that under

Indiana law a cartoon can be defamatory only if a reasonable factfinder could conclude that

it implies “objectively verifiable or testable facts”); Ferreri v. Plain Dealer Publ’g Co., 756

N.E.2d 712, 721–22 (Ohio Ct. App. 2001) (explaining that a cartoon may be defamatory

only if a reasonable person would conclude that it contained a factual assertion rather than

“exaggeration and hyperbole”). Cf. Collins v. Creative Loafing Savannah, Inc., 592 S.E.2d

170, 174–75 (Ga. Ct. App. 2003) (stating in the context of a defamatory cartoon that a court

should inquire as to how “the average reader” would construe the communication).

158. S

MOLLA, supra note 140, at § 6:1.

159. Id. §

6:21 (describing the Supreme Court’s “rather single-minded emphasis on

whether the assertions that give rise to the suit are ‘provable as false’” as “a relatively

narrow and mechanistic formula”).

160. For reviews of various tests, see Gregory G. Sarno, Annotation, Libel or Slander:

Defamation by Statement Made in Jest, 57 A.L.R.4

TH 520 §§ 5, 7 (1987 & Supp. 2011)

(humor cases); Fulcher, supra note 10, at 737–44

(primarily humor cases); King, supra note

10, at 913–29

(general defamation cases and parody cases); Treiger, supra note 9, at 1221–

(general defamation cases and satire cases).

2011] Defamatory Humor and Incongruity’s Promise 125

“pure, evaluative opinion” and not “pure, deductive opinion, which is

provable as true or false on the basis of objective evidence . . . .”

161

The problem gets even worse in humor cases. Following the same

methodology as in non-humor contexts, lower courts examine a putative

joke to determine whether it meets the Milkovich standard: whether the

joke could “reasonably be interpreted as stating actual facts.”

162

Yet

complications arise because humor is better than other modes of

communication at concealing the possible truthfulness of its message.

Why? To begin with, humor’s technique does not operate in the realm of

fact; it operates in the realm of laughter. More specifically, humor works

through incongruity, and by definition, incongruity does not reflect the

constellation of facts and circumstances we readily experience but instead

presents a reality we do not anticipate.

163

As philosopher Immanuel Kant

said, “Jest must contain something that is capable of deceiving for a

moment.”

164

Parody presents a particularly difficult challenge when it comes to the

problem of segregating fact from non-fact. Although definitions of parody

differ, theorists generally agree that a parody must resemble the object of

161. See, e.g., Kathryn Dix Sowle, A Matter of Opinion: Milkovich Four Years Later,

3 WM. & MARY BILL RTS. J. 467, 474 (1994).

162. Milkovich v. Lorain Journal Co., 497 U.S. 1, 2 (1990). See King, supra note 10, at

915 (reasoning that the various lower court tests in parody cases “ultimately” focus on this

Milkovich test). For a similar argument about the difficulties of applying Milkovich in the

context of sexual innuendo and teasing of women, see Lisa R. Pruitt, Her Own Good Name:

Two Centuries of Talk about Chastity, 63 MD. L. REV. 401, 523–28 (2004).

163. One humor theorist explained the matters as follows: humor needs an element of

the ridiculous, and the “ridiculous is logical only within the bounds of certain facts. It

appears logical in a certain setting, but as soon as we get out of the setting and take other

facts into consideration, the logic is lost. Humour, therefore, may be inconsistent with

reality as a whole.” Maier, supra note 61, at 72.

Of course, for the incongruity to work as

humor, it must build on a shared understanding of the world. See supra notes 48–60and

accompanying text.

164. I

MMANUEL KANT, THE CRITIQUE OF JUDGMENT 225 (J.H. Bernard trans.,

Prometheus Books 2000) (1892). See also Gregory R. Naron, Note, With Malice Toward

All: The Political Cartoon and the Law of Libel, 15 COLUM.-VLA J.L. & ARTS 93, 100

(1991) (observing that given that a cartoonist works in the realm of “truthful

misrepresentation,” the notion of evaluating the truth of a cartoon is inherently questionable

(quoting BOHUN LYNCH, A HISTORY OF CARICATURE 2 (1927))). In his treatise, Judge Robert

Sack paints a picture of humor as largely lacking serious, factual content:

Although perhaps annoying or embarrassing, humorous statements will have no

substantial impact on reputation and therefore ought not to be held to be defamatory.

Incidental jibes and barbs may be humorous forms of epithets or ‘mere name-

calling’ and are not actionable under settled law governing such communications.

And it is on these bases that most humor cases are decided.

ACK, supra note 80, at § 5.5.2.7.1:5.2 (internal citation omitted).

126 Southern California Interdisciplinary Law Journal [Vol. 21:93

the parody (the “original”), yet deviate sufficiently from the original, to cue

the reader that a spoof is at play. Thus, parody skirts the line between the

“fact” of the original, and the “opinion” represented by the ultimate

message of the spoof. Artful parodies do this in a sneaky way: “The very

nature of parody . . . is to catch the reader off guard at first glance, after

which the ‘victim’ recognizes that the joke is on him to the extent that it

caught him unaware.”

165

One prominent theory is particularly helpful in delineating the

parameters of this problem of identifying facts underlying or suggested in

humor. This theory is known as the semantic script theory identified by

humor scholar Victor Raskin.

166

According to Raskin, a text is humorous if

it is compatible with “two different scripts,” which are “opposite.”

167

term of art in semantics, the concept of a “script” is illustrated in the

following joke: “‘Is the doctor at home?’ the patient asked in his bronchial

whisper. ‘No,’ the doctor’s young and pretty wife whispered in reply.

‘Come right in.’”

168

Raskin identifies two scripts that are compatible with the joke (the

script of “doctor” and the script of “lover”), explaining that the scripts are

opposite in the sense that one presents a sexual inference and the other does

not.

169

Although the joke clearly implicates release theory, Raskin’s

interpretation of the joke also evokes incongruity theory, because the

interpretation suggests that “opposite” scripts are necessary conditions for

the humor. For example, one could explain the joke using incongruity

theory by pointing out that the patient would not need to enter the doctor’s

home if the doctor were not present to provide for treatment.

170

165. S.F. Bay Guardian, Inc. v. Superior Court, 21 Cal. Rptr. 2d 464, 466 (Ct. App.

1993). See, e.g., Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252,

260 (4th Cir. 2007) (“A parody must convey two simultaneous—and contradictory—

messages: that it is the original, but also that it is not the original and is instead a parody.”

(internal quotation marks omitted)); Andrew Watt, Parody and Post-Modernism: The Story

of Negativland, 25 C

OLUM. J.L. & ARTS 171, 187 (2002) (noting that a judge evaluating

parody must decide “what the original work represented and what the parody was saying

about the original work”).

166. A

TTARDO, supra note 20, at 1 (citing VICTOR RASKIN, SEMANTIC MECHANISMS OF

HUMOR 99 (D. Reidel Publ’g Co. 1985) (1944)).

167. Id. (quoting R

ASKIN, supra note166, at 99).

168. Id. at 21 (citing R

ASKIN, supra note166, at 117–27).

169. Id. at 1 (citing R

ASKIN, supra note166, at 21–22).

170. As support for the proposition that the script theory of opposites is aligned with

incongruity theory, consider the following explanation of incongruity in humor offered by

Professor John Allen Paulos:

2011] Defamatory Humor and Incongruity’s Promise 127

Why do the opposite scripts present a problem for mining “facts” in a

joke? The humor works only to the extent that there are two sufficiently

plausible, dueling realities at play in the joke. As we hear the joke, we

ponder whether the jokester really means to suggest that the doctor’s wife

wishes to have sex with the patient.

Having pointed out the significant amount of untruth present in

humor, I acknowledge that humor often serves as a medium for providing a

highly factual message. Indeed, humor sometimes pitches a potent message

that speaks truth to power or could not otherwise be easily delivered in a

serious way.

171

The tricky part is that this factual message is often covert:

the nugget of truth may be hidden as a kind of time-release barb or

embedded in an ambiguous joke that is subject to a considerable range of

interpretations.

172

In the doctor joke above, for example, one suspects that

the true message is the doctor’s wife’s attempt at infidelity. But is this just

a joke?

[A] necessary ingredient of humor is that two . . . incongruous ways of viewing

something (a person, a sentence, a situation) be juxtaposed. In other words, for

something to be funny, some unusual, inappropriate, or odds aspects of it must be

perceived together and compared. We have seen that different writers have

emphasized different oppositions: expectation versus surprise, the mechanical versus

the spiritual, superiority versus incompetence, balance versus exaggeration, and

propriety versus vulgarity.

AULOS, supra note 46, at 9.

171. Salomone v. MacMillan Publ’g Co., 411 N.Y.S.2d 105, 108 (Sup. Ct. 1978), rev’d

on other grounds, 429 N.Y.S.2d 441 (App. Div. 1980) (“Laughter can soften the blows dealt

by a cruel world, or can sharpen the cutting edge of truth.”). Moreover, the actual humor in

a communication may derive from its naughtiness in pointing out something hurtfully

hurtful and true about an individual. In one study, scholars argued that the hurtfulness is

capable of humor because of circumstances that allow it to operate as a benign violation of

some sort of norm. See A. Peter McGraw & Caleb Warren, Benign Violations: Making

Immoral Behavior Funny, 20 PSYCHOL. SCI. 1 (2010) (suggesting three conditions that can

make a norm violation capable of humor: “(a) the presence of an alternative norm

suggesting that the situation is acceptable, (b) weak commitment to the violated norm, and

172. See Maier, supra note 61, at 72 (explaining that humor operates in the realm of the

ridiculous and “[b]ecause the ridiculous has only a limited logic, it is easy for us to take it

lightly”). As Professor Kimberlianne Podlas thoughtfully explains, humor can act as a

“Trojan Horse,” which possesses “communicative abilities that serious commentary lacks.”

Podlas, supra note 83, at 511–12. She further explains:

[B]ecause a joke is subject to interpretation, it can disguise a comedian’s true

meaning. Depending on the context, the same comment can be funny or mean,

insightful or inappropriate. As a result, it can be difficult to see where humor ends

and ridicule begins. This provides a joke with a degree of insulation. Consequently,

and somewhat ironically, humor enables one to make serious points that could not

be made in a serious tone.

Id. at 513 (internal citation omitted).

128 Southern California Interdisciplinary Law Journal [Vol. 21:93

Matters do not get any better if we cast aside this notion of humor’s

dueling scripts. Indeed, whether humor is in the picture or not, determining

whether something is “a fact” invariably presents a metaphysical challenge.

In some theoretical circles, even suggesting that hard “facts” exist in

counterpoise to something like “values” is cause for a snicker.

173

Leaving

that debate aside, one can see that some phenomena can comfortably be

asserted as fact—”there are more people in China than in New

Jersey . . . Elvis Presley is dead . . . the square root of eighty-one is

nine”

174

—while other phenomena depend on questions of social

construction that quickly muddy the characterization.

175

Although some

humor does play off the first category of fact, humor often involves the

latter category—which is difficult to characterize.

The philosophical challenges of defining “fact” are not unique to the

humor context. Yet at least two reasons suggest that humor enhances the

challenge. The first is humor’s tendency to work by obfuscation, metaphor,

and stealth.

176

This is a point that Freud emphasized in his analysis of

humor’s connection with dreaming.

177

Freud hypothesized that both joking

and dreaming work by analogy or allusion, thereby sidestepping logic and

literal meaning in order to elude the censors of our conscious minds.

178

When operating in this context, humor works outside the bipolar world of

fact/non-fact. Other times, of course, humor actually works within the

realm of fact, albeit concealing or disguising its factual message. While the

fact/opinion paradigm is better suited to this use of humor, the challenge is,

nonetheless, great where the disguise is particularly effective or the

apparently truthful message is ambiguous.

173. Schauer, supra note 139, at 900 (observing that embracing a distinction between

fact and value would “[i]n some circles . . . be an embarrassing thing to admit”). See

generally H

ILARY PUTNAM, The Collapse of the Fact/Value Dichotomy, in THE COLLAPSE OF

THE

FACT/VALUE DICHOTOMY AND OTHER ESSAYS 7, 28–30 (2004) (arguing that something

could be both a fact and a value—and that both share overlapping realms); M

ARTIN

HEIDEGGER, BEING AND TIME 125 (Joan Stambaugh trans., SUNY Press 1996) (1927)

(rejecting a distinction between facts and values).

174. Schauer, supra note 139, 900–01(listing examples of facts).

175. J

OHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY 1–2 (Penguin Books

1996) (1995); Lawrence Lessig, The Regulation of Social Meaning, 62 U.

CHI. L. REV. 943,

949 n.19 (1995) (reviewing various approaches to social meaning construction).

176. Cf. F

REUD, supra note 32, at 154.

177. Id.

178. Id. (observing that the technique of jokes includes similar processes as “dream-

work”: “the processes of condensation . . . displacement, representation by absurdity or by

the opposite, indirect representation”).

2011] Defamatory Humor and Incongruity’s Promise 129

A related challenge is humor’s tendency to operate in socially

contested areas. As Professor Lawrence Lessig explains, not all “facts” are

created equal.

179

Some facts work well within a First Amendment

marketplace of ideas paradigm because of their ability to be verified in

nature (such as the square root of eighty-one).

180

Others (such as the

common characteristics of demographic groups or the personality strengths

of an individual) are contingent on social definition.

181

For this latter

category, a “fact” (such as what tasks women are best suited for doing in

the workplace) depends on what society has to say about the matter.

182

Because of its unique ability to help individuals communicate about

sensitive social topics, humor often crops up when those topics are

discussed and—when it does so—can cause controversy that is not always

susceptible to any precise factual litmus test.

Aside from general philosophical problems of defining “fact” in a

humorous communication, one also encounters difficulties segregating fact

from non-fact because of humor’s dependence on the unique context in

which it arises. What is funny in one social context may be tragic or sad in

another. For example, we might be willing to laugh at slapstick depicting

an unknown older woman who falls, but are aghast at such a depiction if

we know the woman.

183

Classic interdisciplinary works on humor have

explained that humorous subject matter must be “objective”—meaning that

the recipient of a joke will not perceive it as funny if the recipient reacts to

the subject matter subjectively by perceiving sympathy or other feeling.

184

This complex relationship between objective and subjective perceptions

within humor makes the determination of “fact” even more problematic

than it is outside the humor context. The complex relationship also

highlights the limitations of the legal doctrine that focuses on a reasonable

reader or fact finder. Because subjectivity plays a strong role in the

perception and appreciation of humor, an objective reasonableness test is

either inadequate for the matters it seeks to regulate or downright

misguided.

179. See Lessig, supra note 175, at 1036–37.

180.

Id. at 1037.

181. Id.

182. Id. at 1036–37 (discussing how different facts fare differently in the idea

marketplace).

183. Maier, supra note 61, at 71.

184. B

ERGSON, supra note 48, at 139; Maier, supra note 61, at 71 (explaining the

connection between humor appreciation and lack of subjective feelings).

130 Southern California Interdisciplinary Law Journal [Vol. 21:93

One final reason why the fact/opinion distinction is problematic is that

it sends arguably perverse incentives to humorists attempting to avoid

defamation liability. The message of the fact/opinion distinction is that

potential defendants wishing to avoid defamation damages judgments need

to stay in the “opinion chute.” So what can they do to ensure that?

According to existing state common law and First Amendment doctrine, it

is certainly helpful if they include as many outrageously false, hyperbolic,

or vigorous epithets as possible to describe the object of the

communication.

185

Having pointed out these significant problems of deciding defamatory

humor cases by reference to “facts,” I do not advocate dropping the

fact/opinion dichotomy altogether. Until another approach suggests itself,

the deeply entrenched dichotomy provides the best starting point that we

have for accommodating the important social values implicated in this type

of litigation. My intention here is to expose the complexities inherent in the

dichotomy and to suggest refining the law’s approach to the dichotomy as

much as possible. To that end, I turn now to the contributions of Australian

courts. I follow that discussion with some upbeat thoughts about the

promise of incongruity theory.

D. A

USTRALIA’S CONTRIBUTION: AUSTRALIAN DEFAMATION LAW AND

ITS LESSON FOR THE UNITED STATES

Australian cases have a two-fold importance for United States

jokesters: (1) the Australian cases directly regulate those foreign humorists

who cast their jokes into Australia’s regulatory net, and (2) the Australian

cases inform regulation in United States courts. While I use Australian

experience in this article for the latter lesson, I advise those engaging in

edgy humor—particularly on the Internet—to take note of Australia’s far-

reaching regulation of defamation and to become familiar with its

parameters.

186

But as I say, my primary enterprise here is to use the

185. See M. Kevin Smith, Note, Constitutional Law—Satire, Defamation, and the

Believability Rule as a Bar to Recovery—Falwell v. Flynt, 797 F.2d 1270 (4th Cir. 1986),

22 WAKE FOREST L. REV. 915, 915, 928–29 (1987) (reasoning that the focus on facts

encourages speakers to increase intentional falsehoods to insulate themselves from

defamation recovery). This problem of encouraging greater hyperbole or epithets likely

operates most often in jokes laced heavily with superiority humor.

186. One could also say, of course, that Australian defamation law calls for significant

attention because—as a general matter—Australia is an important global partner for the

United States. Even leaving aside the cultural and ideological kinship between the United

States and Australia, Australia is economically and strategically important to the United

States. The economic importance of Australia may not be readily apparent, since, despite

signing a free trade agreement with Australia in 2004, the United States has received only

2011] Defamatory Humor and Incongruity’s Promise 131

Australian cases as a foil: to highlight qualities in the Australian case law

from which United States courts might benefit or—alternatively—avoid.

187

marginal direct benefit. See Chris Nyland & Russell Smyth, Australian Roadmaps to

Globalism: Explaining the Shift from Multilateralism to Imperial Preference, in

LOBALIZATION IN THE ASIAN REGION: IMPACTS AND CONSEQUENCES 117, 119–20 (Gloria

Davies & Chris Nyland eds., 2004). Nonetheless, the United States has a strong, indirect

economic interest in Australia, given Australia’s ties with key Asian trade players, like

China, India, and Japan. See B

RUCE VAUGHN, CONG. RESEARCH SERV., RL 33010,

USTRALIA: BACKGROUND AND U.S. RELATIONS 16–18 (2008). These countries, for their

part, rely on Australia for access to raw materials. See id. at 12. From the point of view of

politics and international security, the United States also considers Australia (along with

Japan) to be an important partner, given its shared democratic traditions and strategically

significant geographic position near China and the Korean Peninsula. See id. at

8–9, 11–13.

187. Comparative law is practically useful for expanding the horizons of law and

treating similar legal problems that challenge multiple legal systems. See generally Laura E.

Little, Transnational Guidance in Terrorism Cases, 38 G

EO. WASH. U. INT’L L. REV. 1, 6–18

(2006) (reviewing reasons why use of transnational materials promotes good judging

methodology and is consistent with the constitutional role of United States courts, even if

only to demonstrate what does not transfer well to United States jurisprudence). What I

advocate here is to pursue what Professor Vicki Jackson might call “engagement” with

Australian law rather than “convergence” with Australian law. V

ICKI C. JACKSON,

CONSTITUTIONAL ENGAGEMENT IN A TRANSNATIONAL ERA 11–12, 39, 71 (2010). In

democratic countries where “the relative social, historical, and religious circumstances

create a common ideological basis, it is possible to refer to a foreign legal system for a

source of comparison and inspiration.” Aharon Barak, A Judge on Judging: The Role of a

Supreme Court in Democracy, 116 HARV. L. REV. 16, 110–11 (2002). Legal cross-

fertilization, or the borrowing of legal experiences, is common in practice in

Commonwealth and former Commonwealth countries with common law systems. Id. at 114.

See, e.g., Mark C. Rahdert, Comparative Constitutional Advocacy, 56 A

M. U. L. REV. 553,

554–62, 576–77 (2007) (favoring using comparative constitutional materials as persuasive

authority and instruction on basic concepts such as liberty, equal protection, and privacy).

That is not to say that one should embark on the comparative enterprise lightly or with an

inclination to make broad generalizations. See Annelise Riles, Wigmore’s Treasure Box:

Comparative Law in the Era of Information, 40 HARV. INT'L L.J. 221, 252–53 (1999)

(questioning whether comparative law can function as a source of legal inspiration since

more of the foreign law’s context is left out than is included in a comparative analysis). One

must be mindful that the more detailed the scale of the inquiry, the more likely one will

encounter increased complication and more variables to take into account. Id. Such

information overload can make real comparison at different levels of generality well-nigh

impossible. Id. See also Teemu Ruskola, Legal Orientalism, 101 M

ICH. L. REV. 179, 190

(2002) (doubting whether some modern comparativists do more than try to confirm the

universality of their legal system or to indict other legal systems for what they lack).

Mindful of the risks of the comparative law enterprise, I try to confine my look at Australian

law to a search for ideas and lessons. I do note that Australia’s and America’s shared legal

heritage in the English common law combined with its sometimes path-breaking High Court

rulings makes Australia an intelligent source to look for tested legal innovation. That

Australia’s federal structure of government and judiciary largely resembles that of the

United States indicates that America can learn much from the Australian laboratory. See

generally Kathleen E. Foley, Australian Judicial Review, 6 W

ASH. U. GLOB. STUD. L. REV.

281, 290–91 (2007) (describing the operation of Australian judicial review and the powers

of the Australian High Court). Since gaining its autonomy from the British appeals system

132 Southern California Interdisciplinary Law Journal [Vol. 21:93

To serve these goals, this section starts first with a description of

Australia’s regulatory tentacles within a global context. It next reviews

general principles of Australia’s speech protection and defamation law.

Finally, it ends with an analysis of Australia’s defamatory humor cases and

their lessons for courts in the United States.

1. Br-r-r-r: Australian Defamation Laws’ Global Chill

For those concerned with possible exposure to defamation liability,

Sydney rivals London for the reputation of “a town named sue.”

188

Indeed,

as long as twenty-five years ago, Sydney was dubiously honored as the

“defamation capital of the world.”

189

While defamation practice in Sydney

is particularly robust,

190

other parts of the Australian court system enjoy

similarly lively and significant defamation dockets.

191

The impact is not limited to domestic defendants. In 2002, the High

Court of Australia struck fear in the hearts of publishers throughout the

world with its decision in Dow Jones & Co. v Gutnick.

192

Applying a

choice of law rule based on lex loci deliciti (law of the place of the tort

governs), the High Court allowed a resident of the state of Victoria to

proceed in a defamation action against Dow Jones for material uploaded

onto the Internet in the United States. Uniform legislation enacted after the

Gutnick decision left open liability exposure and uncertainties for foreign

in 1986, the Australian High Court has robustly reviewed cutting-edge legal issues, giving

Australian law increasing relevance in a globalized world. See id. at 284, 305. Moreover, the

two countries share deep-seated cultural values such as “almost strident egalitarianism, deep

suspicion of authority, [and] laconic and even self-deprecating humour.” See Michael

Coper, Three Good Things and Three Not-So-Good Things About the Australian Legal

System, I

NT’L ASS’N OF LAW SCHS. 2 (Oct. 17–19, 2007),

http://www.ialsnet.org/meetings/enriching/coper.pdf.

188. Sarah Lyall, England, Long a Libel Mecca, Reviews Laws, N.Y.

TIMES, Dec. 11,

2009, at A1 (associating that name with London).

189. Michael Newcity, The Sociology of Defamation in Australia and the United

States, 26 T

EX. INT’L L.J. 1, 11 n.46, 64 (1991). See also Andrew Hemming, Is Defamation

the ‘Galapagos Islands Division’ of the Australian Law of Torts?, 11 U.

NOTRE DAME

AUSTL. L. REV. 84, 110–11 (2009) (stating that “[w]hether Sydney continues to wear the

crown as the defamation capital remains an open question”).

190. Indeed, courts in Sydney have a special docket dedicated to defamation cases. See

David Levine, Defamation Practice: Change and Reform, Lawlink New South Wales (Mar.

16, 2001), www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwPrint1/SCO_speech

_levine_160301.

191. See, e.g., A

NDREW T. KENYON, DEFAMATION: COMPARATIVE LAW AND PRACTICE

2, 165–93 (2006) (describing detailed and well-developed defamation practice in Victoria).

192. Dow Jones & Co. v Gutnick (2002) 210 CLR 575 (Austl.).

2011] Defamatory Humor and Incongruity’s Promise 133

defendants who publish material overseas

193

—thus maintaining significant

incentives for libel tourism and potentially excessive self-censorship on the

part of publishers.

194

Australia continues to provide incentives for libel plaintiffs to file suit

there because of its relatively plaintiff-friendly defamation laws, as well as

personal jurisdiction and choice of law principles that allow extraterritorial

application of Australian law on foreign defendants who make statements

outside of Australia.

195

With Great Britain potentially responding to United

States’ libel tourism restrictions by making the country less hospitable to

defamation plaintiffs,

196

Australia could take on even greater importance

for those forum shopping for an attractive place to file a defamation suit. In

its potential to chill the expression of humorists uploading materials from

elsewhere in the world, Australian law requires attention.

197

2. Australian Defamation Law: A General Overview

Australian judges and legal scholars are deeply self-critical of

Australia’s current defamation laws.

198

Commenting on what he perceived

193. Belinda Robilliard, Jurisdiction and Choice of Law Rules for Defamation Actions

in Australia Following the Gutnick Case and the Uniform Defamation Legislation, 14

USTL. INT’L L.J. 185, 193, 197–198 (2007) (discussing uncertainty and exposure for

defamation defendants under uniform defamation legislation).

The potential exposure from

Gutnick, however, can easily be overstated. For example, liability was restricted to damages

accrued within the state of Victoria, and principles of abuse of process limit plaintiffs’

ability to file repeated lawsuits in multiple jurisdictions based on the same matter. See, e.g.,

David Rolph, The Message, Not the Medium: Defamation, Publication and the Internet in

Dow Jones & Co. Inc. v. Gutnick, 24 S

YDNEY L. REV. 263, 275 (2002) (discussing

limitations on liability made possible under Gutnick).

194. Robilliard, supra note 193, at 193, 198 (explaining how a defendant with strict

liability exposure—such as the case of defamation liability in Australia—will distort the

level of precautions taken).

195. Michelle A. Wyant, Confronting the Limits of the First Amendment: A Proactive

Approach for Media Defendants Facing Liability Abroad, 9

SAN DIEGO INT’L L.J. 367, 393–

400

(2008) (explaining how the intersection of Australia’s lex loci delecti choice of law rule

and its recognition of a separate cause of action for each publication allows its defamation

laws to have extraterritorial reach).

196. Lyall,

supra note 188 (describing Great Britain’s serious consideration of such a

legislative change).

197. For a description of how a joke publication can result in a chilling foreign

judgment on a U.S. newspaper, see Michael Socha, Double Standard: A Comparison of

British and American Defamation Law, 23 P

ENN. ST. INT’L L. REV. 471 (2004) (describing

the potential chilling effect of a defamation judgment against Dow Jones in British courts).

For a discussion of the chilling effect of Australian defamation law for humorists within

Australia, see Elizabeth Handsley & Robert Phiddian, Political Cartoonists and the Law, in

OMIC COMMENTATORS 73–74 (Robert Phiddian & Haydon Manning, eds., 2008).

198. See, e.g., Ruth McColl, Forward to P

ATRICK GEORGE, DEFAMATION LAW IN

AUSTRALIA xv–xvi (2006) (stating that “Australian courts have resisted calls for the law of

134 Southern California Interdisciplinary Law Journal [Vol. 21:93

as the unevolved status of Australian defamation law, one judge described

it as the “Galapagos Island Division of the law of torts.”

199

He bemoaned

defamation law’s “esoteric customs,” which perpetuate “distinctions

between inferences upon inferences.”

200

While this description suggests a

dismal prognosis for the future of Australian defamation law, others are

more sanguine,

201

finding hope in the Uniform Defamation Laws enacted

throughout the country in 2006.

202

Perhaps the most salient feature of Australian defamation laws (for

this Article’s purposes) is their relative lack of constraint: they operate

unfettered by any constitutional analogue to the First Amendment. Silence

on free speech rights is not confined to that category of civil liberties, since

the Australian Constitution reflects almost no mention of individual rights

as a general matter.

203

Australian law’s approach reflects a belief that social

cohesion and public order should trump freedom of speech where speech

might threaten a breach of the peace.

204

defamation to adapt to the global . . . world”); Tony Fitzgerald, Telling the Truth, Laughing,

92 M

EDIA INT’L AUSTL. 11, 16 (1999) (asserting that “[d]efamation law in Australia is in a

mess”); Roger S. Magnusson, Freedom of Speech in Australian Defamation Law: Ridicule,

Satire and Other Challenges, 9 TORTS L.J. 269, 272–74 (2001) (commenting on the

“volatility” of defamation laws governing Australia’s media); David Rolph, Critique of the

Uniform Defamation Act, 16 T

ORTS L.J. 207, 247 (2008) (opining that Australian

defamation law bears the hallmarks of historical accident, comparative neglect, and

piecemeal reform).

199. Justice David Ipp, Themes in the Law of Torts, 81 AUSTL. L.J. 609, 614 (2007).

200. Id.

201. See, e.g., Hemming, supra note 189, at 84 (maintaining that “conjuring up images

of giant turtle and arcane procedures in relation to defamation is to indulge hyperbole and

gives insufficient credit to” Australia’s new uniform defamation laws).

202. Paul Svilans, The Uniform Defamation Laws, (New South Wales Young Lawyers

CLE Seminar Papers 2006) (reporting that most states and territories enacted the uniform

law on January 1, 2006, and at that time the Northern Territory was expected to follow

shortly thereafter).

203. Magnusson, supra note 198, at 275 (maintaining that “constitutional protection in

Australia confers no private rights, but operates as a limitation upon legislative and

executive power” to ensure effective representational government).

204. See, e.g., Melinda Jones, Free Speech Revisited: The Implication of Lange and

Levy, 4 A

USTL. J. HUM. RTS. 188, 203 (1997). A powerful example of the willingness of

Australian regulators to restrict humor appears in a legislative committee report relating

exemptions to the Australian racial vilification laws. The committee report expressed

concern about the exemption from liability under the federal racial vilification act for

communications for artistic purposes. See Judith Bannister, It’s Not What You Say but the

Way That You Say It: Australian Hate Speech Laws and the Exemption of “Reasonable”

Expression, 36 F

LA. ST. U. L. REV. 23, 33 (2008) (observing that in an artistic performance a

“comedian can . . . tell blatantly racist jokes[,] . . . but those some [sic] jokes told by an

ordinary citizen in a public place . . . could render him/her subject to civil proceedings”

2011] Defamatory Humor and Incongruity’s Promise 135

Nonetheless, the Australian High Court has found an implied

constitutional freedom of political communication.

205

In language

reminiscent of United States free speech rhetoric, the High Court cited the

central role that political communication plays in the functioning of the

representative government explicitly described in the written Australian

Constitution.

206

As originally articulated, the qualified freedom extends to

protect public communications about politics.

207

Judges have been reluctant

to protect the freedom rigorously, choosing instead to defer to legislative

judgments and to decline opportunities to expand the categories of

protected communications.

208

Thus, communications within the ambit of

(citing S. LEGAL AND CONSTITUTIONAL LEGIS. COMM., REPORT ON RACIAL HATRED BILL

1994, MINORITY REPORT, at 6 (1995))).

205. Under the Anglo-Australian approach adopted from the common law, this

protection is accurately regarded as a freedom and not a right. See Douglas v. Hello! Ltd.,

[2005] EWCA (Civ) 595, [64] (Eng.), in which Justice Brooke discussed the freedom/right

distinction. The distinction generally means that a citizen may be free to say what he or she

likes, but does not have a protected right to do so. Under this freedom-based approach,

existing laws such as those proscribing defamation or contempt of court provide robust

constraints on speech, with protections like the implied freedom of political communications

providing only a negative limitation on the laws rather than a positive right of Australians to

converse about political or governmental matters. For a discussion of the ramifications of

this negative conceptualization of the freedom, see Adrienne Stone, The Comparative

Constitutional Law of Freedom of Expression, in R

ESEARCH HANDBOOK IN COMPARATIVE

CONSTITUTIONAL LAW (Rosalind Dixon & Tom Ginsburg eds., publication forthcoming),

available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633231.

206. Lange v Austl. Broad. Corp. (1997) 189 CLR 520 (Austl.).

207. Id. at 112. The High Court made clear that the freedom was unavailable if the

plaintiff established that the publication was inspired by ill will or other improper motive.

Id. at 117–18.

208. James Stellios, Using Federalism to Protect Political Communication:

Implications from Federal Representative Government, 31 M

ELB. U. L. REV. 239, 240, 245

(2007). The High Justices have said that free speech protections in Australia differ from

those in the United States in that Australian protections protect only political discourse as

“an indispensable element in ensuring the efficacious working of representative democracy

and government[,]” not “freedom of expression generally as a fundamental human right.”

Theophanous v Herald & Weekly Times (1994) 182 CLR 104, 125 (Austl.). Another

example of Australia’s inclination to restrict this protection is federal and state racial

vilification laws, at least some of which have been held to be an appropriate restriction on

communications relating to political and governmental matters. See Bannister, supra note

204, at

26 (citing decisions of an Australian federal court as well as the Victoria Court of

Appeal).

A possible exception to the High Court’s inclination to read the scope of political

communication restrictively is Coleman v Power (2004) 220 CLR 1 (Austl.), in which the

High Court quashed the conviction of a political activist for using “threatening, abusive, or

insulting words.” See Adrienne Stone & Simon Evans, Australia: Freedom of Speech and

Insult in the High Court of Australia, 4 I

NT’L J. CONST. L. 677, 678 (2006) (noting that the

Coleman majority did not accept that the state may “mandate civility in political

communication”).

136 Southern California Interdisciplinary Law Journal [Vol. 21:93

Australian constitutional protection continue to include only those “that are

somehow related to government and political matters.”

209

Although the

Australian High Court has adopted a variation of the American actual

malice standard in such cases, an Australian defamation plaintiff must

establish that the publication was “actuated by . . . ill will or other improper

motive”

210

only after the defendant has asserted the privilege and

established that the publication was reasonable.

As for free speech protection in the context of defamation, defamation

law itself is thought to calibrate the appropriate balance between expressive

freedom and reputation protection.

211

The law monitors this balance

through the cause of action elements and a series of elaborate defenses. A

look at the various definitions for “defamatory” appearing in Australian

cases powerfully illustrates how this balance favors reputation more than

United States law does.

212

First, a defamatory publication is one that “is

calculated to injure the reputation of another, by exposing him to hatred,

contempt, or ridicule.”

213

A publication can also be defamatory where “it

tends to make the plaintiff be shunned and avoided . . . without any moral

discredit” prompted by the plaintiff

214

or where it tends “to lower the

plaintiff in the estimation of right-thinking [members of society

generally.]”

215

Also indicative of the plaintiff-oriented balance is the strict

liability nature of the tort: “[A] defendant may be liable even though no

209. William Buss, Constitutional Words About Words: Protected Speech and

“Fighting Words” Under the Australian and American Constitutions,

15 TRANSNAT’L L. &

CONTEMP. PROBS. 489, 494 (2006).

210. Lange v Austl. Broad. Corp. (1997) 189 CLR 520, 574 (Austl.). See Wyant, supra

note 195, at 388 (describing Australian rules and observing that a plaintiff under United

States defamation laws would need to establish actual malice in every such case).

211. D

AVID ROLPH, REPUTATION, CELEBRITY AND DEFAMATION LAW 1 (2008) (stating

that tort law “purports to strike a balance between freedom of speech and protection of

reputation”). Some Australian judges have frankly questioned the value of freedom of

expression and freedom of the press, particularly in media cases over the last fifteen years.

See, e.g., Austl. Broad. Corp. v. O’Neill (2006) 227 CLR 57, 114–16 (Judge Heydon); Austl.

Broad. Corp. v. Lenah Game Meats (2001) 208 CLR 199, 300–09 (Judge Callinan); Ballina

Shire Council v. Ringland (1994) 33 NSWLR 680 (Austl. (Judge Mahoney).

212. P

ATRICK GEORGE, DEFAMATION LAW IN AUSTRALIA 154–55 (2006) (summarizing

the common law definitions of defamatory, which are deemed unaffected by the Uniform

Act).

213. Id. (citing Parmiter v. Coupland, (1840) 151 Eng. Rep. 340 (Exch. of Pleas) 342).

214. Id. (citing Youssoupoff v. MGM Pictures, Ltd., (1934) 1 T.L.R. 581 (EWCA) at

587 (Eng.)).

215. Id. (citing Sim v. Stretch, (1936) 2 All E.R. 1237 at 1240 (Eng.)).

2011] Defamatory Humor and Incongruity’s Promise 137

injury to reputation was intended and the defendant acted with reasonable

care . . . .”

216

The free speech side of the balance is represented by elaborate

defenses, set forth in detail in the Uniform Defamation Act.

217

Most

pertinent here is the defense of “honest opinion”—which may in some

cases protect opinion-based humor. Although the “honest opinion” defense

substantially mirrors a preexisting defense from Anglo-Australian common

law known as the defense of fair comment, defendants encountered

substantial difficulty in successfully asserting the common law fair

comment defense.

218

The current provision under the Uniform Act tries to

broaden protections against expressions of comment or opinion, although it

limits the defense to a “matter of public interest”

219

and circumstances

where the opinion is based on material that is “substantially true or

published on an occasion of absolute, qualified, or fair report privilege.”

220

One can see that the privilege operates quite differently than the

fact/opinion dichotomy in United States law; the honest opinion privilege is

available under Australian law only if the opinion actually has a factual

underpinning or is otherwise protected by another privilege.

Prior to the Uniform Defamation Act, the notion of a defamatory

“imputation” was a key concept for a defamation plaintiff in certain

Australian jurisdictions.

221

Pleading rules imposed on the plaintiff a duty to

identify the precise defamatory meaning that one might impute to the

216. Robilliard, supra note 193, at 193, 197–98 (discussing uncertainty and exposure

for defamation defendants under uniform defamation legislation).

217. See Defamation Act 2005 (NSW) ss 24–33 (Austl.), reprinted in G

EORGE, supra

note 212, at 450–58.

218. Andrew T. Kenyon, Perfecting Polly Peck: Defences of Truth and Opinion in

Australian Defamation Law and Practice, 29

SYDNEY L. REV. 651, 680 (2007) (describing

prior practice under the defense). See also Handsley & Phiddian, supra note 197, at 68–73

(discussing fair comment and honest opinion as these defenses pertain to political cartoons).

219. Kenyon, supra note 218, at 680 (quoting Australia’s uniform defamation law).

220. Id. (describing uniform defamation law and reforms the law sought to implement).

221. The concept of an imputation was part of the cause of action for defamation in the

largest source of defamation jurisprudence—New South Wales—and an important

component of defamation codes in Queensland and Tasmania. See, e.g., Defamation Act

1974 (NSW). s 9 (Austl.) (earlier provision, now repealed, detailing the imputation

requirement). Pleading particular imputations were less important in other Australian

jurisdictions, where the communication as a whole—not the imputations contained within

it—provided the cause of action. See G

EORGE, supra note 212, at 142–49 (discussing

variation in the requirement of pleading imputations across Australian jurisdictions). The

word “imputation” appears in older United States materials as well, although it is not clear

that spawned complex procedural requirements as it did in Australia.

138 Southern California Interdisciplinary Law Journal [Vol. 21:93

defendant’s communication.

222

Although the concept of an imputation

would seem to have the salutary effect of crystallizing the precise point of

controversy between the parties, the requirement multiplied complexities in

litigating defamation cases and the Uniform Defamation Act omitted it.

223

The imputation requirement nonetheless remains an important part of

precedent, providing the vocabulary for conceptualizing how a

communication might be understood as defamatory.

Interpretation of the defendant’s communication is for the jury, which

should evaluate whether the plaintiff’s asserted imputations are reasonable

under community standards.

224

Juries must follow the rule that the

“defendant’s actual intention (as opposed to what was understood to be his

intention from what he had published) is irrelevant to the meaning in fact

conveyed.”

225

Importantly though—for the purposes of humor cases—the

jury must undertake its interpretative role in light of human discourse and

expressive patterns. Reminiscent of the United States Supreme Court’s

“rhetorical hyperbole” exception to defamation liability,

226

one Australian

court explained:

[P]eople not unfrequently use words, and are understood to use words, not

in their natural sense, or as conveying the imputation which, in ordinary

circumstances, and apart from their surroundings, they would convey, but

extravagantly, and in a manner which would be understood by those who

hear or read them as not conveying the grave imputation suggested by a

mere consideration of the words themselves.

227

Similarly reminiscent of the United States Supreme Court’s “vigorous

epithet” exception to defamation liability,

228

another line of Australian

cases allows “vulgar abuse” to escape liability.

229

One commentator

222. GEORGE, supra note 212, at 142.

223. Id. at 149. It is, however, still considered good pleading practice for a plaintiff to

particularize imputations upon which the plaintiff relies. Id.

224. O’Hara v Channel Seven Sydney Pty Ltd., [2007] NSWDC 81 (14 September

2007) [23–28] (Austl.) (discussing case law establishing that questions of interpretation as

to allegedly defamatory material are questions for a jury). For a formula of this concept in

the context of a classic humor case, see Donoghue v. Hayes, (1831) Hayes Ir. Exch. Rep.

265, 266 (“The whole question is, whether the jocularity was in the mind of the defendant

alone, or was shared by the bystanders.”).

225. Anderson v Mirror Newspaper Ltd. (No. 1) (1986) 6 NSWLR 99 (Austl.).

226. See supra notes 134–38 and accompanying text for further discussion of this

exception.

227. Austl. Newspaper Co. v. Bennett, [1894] A.C. 284, 287 (Eng.).

228. See supra notes 134–38 and accompanying text for further discussion of this

exception.

229. Magnusson, supra note 198.

2011] Defamatory Humor and Incongruity’s Promise 139

explained that, “‘[v]ulgar abuse’ escapes liability not because it is nonsense

or because it is vulgar, but frequently because it is so excessive, irrational

and disproportionate that the imputations conveyed would not be taken

seriously, and so cannot reasonably be said to arise.”

230

3. Disparagement Versus Ridicule: Australian Defamatory Humor Cases

By evaluating whether a joke might suggest some unflattering fact

about the plaintiff, Australian defamatory humor cases resemble their

counterparts in the United States. Given Australia’s greater emphasis on

reputational interests, one might expect this parallel analysis to yield

liability for Australian defendants more often than in the United States.

231

Interestingly, however, the cases do not really bear this out. What is a

striking difference from the United States is Australia’s continued

commitment to defamation protection for plaintiffs who are simply exposed

to ridicule, even where defendants’ communications contains little, if

anything, suggesting an unflattering fact. The ridicule test is conceptually

distinct from the tests for defamatory meaning based on disparagement,

because ridicule does not necessarily suggest to others that the ridicule’s

object (the plaintiff) possesses any characteristic, or has taken any action,

that would lower others’ esteem for the plaintiff.

232

Although the

“disparagement” versus “ridicule” labels are mine, Australian courts have

occasionally explicitly described the distinction these labels represent.

233

The following examples of Australian defamatory humor decisions

illustrate these various observations.

a. Disparagement Cases

The broad sweep of Australia’s defamation definitions, and its

comparatively constrained protection of free speech values, suggest that

230. Id. at 284.

231. Seeing analytical overlap in approaches, I only partly embrace the position of

Richard Creech, who concluded his comparative study of United States and Australian libel

cases as follows: “In the end, the American and Australian approaches to the analysis of

defamatory language appear to be irreconcilable, as each is the product of a different

societal judgment regarding the relative worth of free speech compared to a person’s

reputational interest.” Richard L. Creech, Dow Jones and the Defamatory Defendant Down

Under: A Comparison of Australian and American Approaches to Libelous Language in

Cyberspace, 22 J.

MARSHALL J. COMPUTER & INFO. L. 553, 566 (2004).

232. Magnusson, supra note 198, at 280.

233. See, e.g., Darbyshir v Daily Examiner Pty Ltd. (Unreported, Supreme Court of

New South Wales, Levine J, 29 August 1997) (Austl.) (discussing whether advertisement

had an adverse reflection upon the reputation of the plaintiff or could hold her up to

ridicule).

140 Southern California Interdisciplinary Law Journal [Vol. 21:93

Australian cases evaluating whether a joke amounts to disparagement

would be far more protective of the plaintiff, and more restrictive of humor,

than United States cases are. But the results are not so clear. Of the

relatively small universe of Australian decisions dealing with defamatory

humor,

234

many come out in favor of the jokester. For example, in Seidler

v. Fairfax, an allegedly defamatory cartoon depicted a barren landscape

containing austere, person-sized structures.

235

Some of the structures were

completely filled with a person being served sandwiches at the structure’s

front and excreting feces out the structure’s back.

236

The cartoon’s caption

said “Harry Seidler Retirement Park.”

237

The cartoon apparently sought to

comment on “the dehumanizing . . . modernist architecture” of Australian

architect Harry Seidler.

238

Seidler lost at the defamation trial about the

cartoon because the jury found the requisite elements of a fair comment

defense, including finding that the cartoon was an expression of opinion

and that the opinion was based on “proper material for comment.”

239

The

appellate court affirmed, despite Seidler’s argument that the fair comment

defense should be unavailable because the cartoon inaccurately suggested

that he had designed a retirement park.

240

Explaining that the jury was free

to find the retirement park reference to be fictitious, one appellate judge

explained that a cartoon on a subject of public interest is “bound by its

nature to traffic in exaggeration, caricature, allegory and fiction” and that

the “ordinary reader would understand that cartoons are often not to be

taken literally.”

241

234. Since “humor” is not a legal category, I had to evaluate whether a particular

defamation case presented an issue dealing with humor, rather than straightforward ridicule

or some other expression with no comedic effect or intent. In one disparagement case filed

by a federal election candidate, however, the defendant comedian formally asserted “humor”

as a defense. Steve Larkin, Court Jester: Mick Molloy to Use Humour as a Defence in

Defamation Case, S

YDNEY MORNING HERALD, Apr. 27, 2010,

http://www.smh.com.au/entertainment/court-jester-mick-molloy-to-use-humour-as-a-

defence-in-defamation-case-20100427-tp2i.html.

235. Seidler v Fairfax [1986] Aust Torts Reports ¶

80–002, 67,473–67,475 (Austl.).

236. Id. at 67, 475.

237. Id.

238. John McCallum, Comedy and Constraint: Lenny Bruce, Bernard Manning,

Pauline Pantsdown and Bill Hicks, in SERIOUS FROLIC: ESSAYS ON AUSTRALIAN HUMOUR

202, 215 (Fran De Groen & Peter Kirkpatrick eds., 2009).

239. Seidler v Fairfax [1986] Aust Torts Reports

¶¶ 80–002, 67,475 (Austl.).

240. Id.

241. Id. at 67,476. One might argue that the reasoning here is contradictory: on one

hand the court says that the cartoon is not to be taken literally, and on the other hand the

court suggests that it is a serious comment (the fair comment defense acknowledges that the

communication can make a literal, defamatory suggestion about the plaintiff). The bottom

line, however, was a humor-protecting result. See generally Austl. Broad. Corp. v Hanson

2011] Defamatory Humor and Incongruity’s Promise 141

The court reached a similarly humor-friendly result in Coleman &

Anor v. John Fairfax Publications Pty Ltd., an action brought by a coach in

Australia’s National Rugby League for an article that blamed the team’s

poor results on the coach’s “being put in child care as a toddler.”

242

The

article quoted a “psychologist” as saying the coach’s “somewhat fractured

relationship with his mother as a child hasn’t provided him with adequate

communication and intimacy skills.”

243

Rejecting the defamation claim, the

court reasoned that a reasonable reader would find nothing in the article’s

contents “to be taken seriously,” adding that the article was “self-evidently

absurd” and simply a “joke” that neither conveyed anything “disparaging,”

nor would inspire anyone to shun or avoid the plaintiff.

244

The humor-protecting orientation guiding Coleman and Seidler

appears in other disparagement cases as well.

245

I note, however, that four

[1998] QCA 306 (28 September 1998) (Austl.); McCallum, supra note 238, at 215

(contrasting Seidler with a case in which the court was more hostile to the humor).

242. Coleman v John Fairfax Publ’ns Pty Ltd. [2003] NSWSC 564 (25 June 2003)

[Appendix A] (Austl.).

243. Id.

244. Id. at [22]–[23].

245. See, e.g., Falkenberg v Nationwide News Pty Ltd. (Unreported, Supreme Court of

New South Wales, Levine J, 16 December 1994) 3–4 (Austl.). The Falkenberg plaintiff

sued over a Gary Larson “The Far Side” cartoon captioned “Graffiti in Hell,” which

depicted the devil in a rage because of the apparently sweet picture and statement “Satan is a

warm and tender guy” written on the wall. Id. at [2]. The wall also had the following

written: “For a pleasant conversation call Satan 5551232.” Id. This, it turned out, was the

phone number for plaintiffs, Daniel and Rosemary Falkenberg, who received many phone

calls from readers who saw the cartoon in an Australian newspaper. Id. at [2]. These

plaintiffs asserted four imputations based on the premise that they are akin to a devil who

tries to attract telephone conversations. Id. at [2]. The court concluded that it was incapable

of defaming Rosemary because the devil is depicted as a woman. Id. at [7]. As for Daniel,

the court also determined that the cartoon was not capable of conveying the imputations. Id.

at [8]. The court added that the appropriate test is “the ordinary reasonable reader, knowing

the relevant facts and not what must have been a great deal of weird people who merely

called the telephone number.” Id.

The British case, Berkoff v. Burchill [1997] E.M.L.R. 139 (U.K.), a case which

strongly influenced Australian defamation cases, is also aligned with the type of result one

would likely see in the United States. In that case, a journalist described Steven Berkoff, an

actor and director, as follows: “Film directors, from [Alfred] Hitchcock to [Steven] Berkoff,

are notoriously hideous-looking people . . .” and in a review of Frankenstein, she described

the new look for the monster, stating, “it’s a lot like Stephen [sic] Berkoff, only marginally

better looking.” Id. at 141. In oft-quoted language, one judge stated: “Many a true word is

spoken in jest. Many a false one too. But chaff and banter are not defamatory, and even

serious imputations are not actionable if no one would take them to be meant seriously.” Id.

at 152 (Millett, L.J., dissenting). He added:

The line between mockery and defamation may sometimes be difficult to draw.

When it is it should be left to the jury to draw it . . . . A decision that it is an

actionable wrong to describe a man as “hideously ugly” would be an unwarranted

142 Southern California Interdisciplinary Law Journal [Vol. 21:93

defamation cases arising from disparagement humor come out the other

way—in support of the plaintiff. Nonetheless, the facts in two of the four

cases so strongly support a plaintiff’s win that one would expect a similar

result in the United States.

246

Importantly, both cases reckon forthrightly

restriction on free speech. And if a bald statement to this effect would not be capable

of being defamatory, I do not see how a humorously exaggerated observation to the

like effect could be. People must be allowed to poke fun at one another without fear

of litigation. It is one thing to ridicule a man; it is another to expose him to ridicule.

Miss Burchill made a cheap joke at Mr. Berkoff’s expense; she may thereby have

demeaned herself, but I do not believe that she defamed Mr. Berkoff.

Id. at 153. See also John v. Guardian News & Media Ltd., [2008] EWHC (QB) 3006, [47]

(Eng.) (following Berkoff, a court in Great Britain concluded that a mock “diary entry” by

Singer Sir Elton John was a form of teasing that could not be reasonably read to contain a

serious allegation).

246. One case, Entienne Pty Ltd. v Festival City Broad. Pty Ltd. (2001) 79 SASR 19

(Austl.), was based on a parody weather report in which the radio host referred to a local

street as a place to score drugs and referred to a “flash man” (a term used to refer to a drug

peddler) on the street. Although considerable media reports had stated that the street was

indeed a place to buy drugs, the tone of the parodied weather report was jocular. Allegedly

unbeknownst to the radio host, the street did have a gelateria known as “Flash Gelateria.”

The owner of the store sued. Id. at 24. The Entienne trial judge held that “a reasonable

listener . . . would be fully aware that the whole program intended to be and was a comic

program of complete nonsense. The only part of the program which makes sense is the

initial giving of the temperature.” Id. at 25. The appellate court agreed that the general

presentation was intended to be “a comic, nonsensical spoof.” Id. at 29. Nonetheless, the

appellate court allowed the appeal, noting that the segment was “built on a substratum of

fact.” Id. at 31. Although clearly a parody, the court concluded, the skit “incorporated

factual material” and conveyed the imputation that the plaintiff was indeed a drug dealer. Id.

The second case, Darbyshir v Daily Examiner Pty Ltd. (Unreported, Supreme Court of New

South Wales, Levine J, 29 August 1997) [2] (Austl.), concerned a spoof advertisement about

a plaintiff who practiced law. The plaintiff submitted imputations stating that the ad

conveyed the impression that as a lawyer, she was an unprincipled, predatory vulture. Id. at

[2]. The Supreme Court of New South Wales rejected the argument that advertisement was

incapable of being defamatory because it was a “joke.” Id. at [10]. The court emphasized

that even if it was clearly a joke, the advertisement was still capable of holding plaintiff up

to ridicule and could thus adversely reflect on the plaintiff’s reputation. Id.

Two other cases present harder calls for predicting how a court in the United States would

come out given the same facts. In one, McGuiness v J. T. Publ’g Austl. Pty Ltd. [1999]

NSWSC 471 (21 May 1999) (Austl.), the defendant’s parody insinuated that the plaintiff

would relish “emptying his service revolver into another” and the court concluded this had a

disparaging ring. Id. [8]. In the second case, Cornes v Ten Grp. Pty Ltd. [2011] SASC 104

(5 July 2011) [1]–[2] (Austl.), the plaintiffs brought a defamation action on the basis of a

comment by a talk show interviewer during an interview of a footballer. After discussion of

the footballer’s sex life and relationship with an actress, the interviewer discussed the

plaintiff’s praise of the footballer and stated: “And apparently you slept with her, too.” Id. at

[4].

2011] Defamatory Humor and Incongruity’s Promise 143

with the injuries to the plaintiffs’ reputational interests, which swayed the

courts’ decisions.

247

A third case favoring the plaintiff breaks from the pattern: the court in

that case not only showed an unsympathetic approach to satire, but also

limited the defense of fair comment on governmental and political matters

in a way one would likely never expect to see reproduced in the United

States.

248

In the final case, the court not only failed to see the humor in

what could quite reasonably be taken as a jaunty, spur-of-the-moment

quip,

249

but also channeled the plaintiff’s theory of liability toward

disparagement (and away from ridicule, which it described as the less

serious theory of defamation).

250

What accounts for the general similarity in results between Australian

and United States disparagement cases? I hazard a possible explanation:

Australian culture’s commitment to humor and modesty. As a society,

247. Entienne Pty Ltd. v Festival City Broad. Pty Ltd. (2001) 79 SASR 19 (Austl.)

evaluated the damage inflicted by the drug dealing insinuation and Darbyshir v Daily

Examiner Pty Ltd. [1997] NSWSC1027 (29 August 1997) (Austl.), discussed how the

plaintiff’s reputation as a lawyer would suffer from the defendant’s defamatory message.

248. The plaintiff in the case, chairman of a political party known as Australian

National Action, sued about an article satirizing his racist views. Brander v Ryan [2000]

SALR 234, 235 (Austl.). The article contained statements about the propensity of plaintiff,

Michael Brander, for effeminate and juvenile behavior:

It’s Little Mikey and the big bad racists

How did little Mikey Brander get to be the leader of the racist gang National

Action?

Did he beat all the other, bigger NA chaps in a peeing contest or something?

It is hard to imagine how you can piddle higher than everyone else if you sit down to

take a pee. . . .

Hey, loosen up, guys! Even political revolutionaries with a brittle potential for

violence can still get in touch with the inner child. Follow your leader.

Id. In evaluating whether the defense applied, the court imposed a reasonableness standard

in evaluating whether the defendant reasonably believed that the plaintiff possessed these

qualities. Applying the reasonableness standard, the court ultimately concluded that the

plaintiff had made out the imputations that plaintiff “did not hold his political views

sincerely” and that he was motivated by “juvenile attention seeking.” Id. at 246–47. As one

commentator pointed out, this reasonableness requirement is ill-fitted for evaluating satire,

which operates by exaggeration and distortion, not congruence with reality. Magnusson,

supra note198, at 289 (observing that satire “exaggerates and distorts perspectives in order

to make its point. Rarely will a defendant hold an honest belief in the truth of the inflated,

“literal” imputations the plaintiff is likely to find most offensive.”).

249. Cornes v Ten Grp. Pty Ltd. (Unreported, Supreme Court of South Australia, Peek

J, 5 July 2011) (Austl.). Although the statement, “[a]nd apparently you slept with her, too,”

was spontaneous and part of a jocular, lighthearted interchange, id. at [5], the court

concluded that that the context suggested that it was “informative material,” id. at [42].

250. Id. at [81].

144 Southern California Interdisciplinary Law Journal [Vol. 21:93

Australia not only treasures laughter, but also uses deprecating humor as

“an acculturating ritual.”

251

Australia’s affinity with laughter in general

and deprecating humor in particular is often associated with the unique

challenges of survival posed by the history and climate of the country.

252

Indeed, one scholar even noted Australian capacity for sardonic humor as

an important factor enabling Australian prisoners of war to survive

captivity more successfully than prisoners from other nations.

253

In a totally different context—during debates over liberalization of

Australia’s copyright laws to accommodate parody and satire—the

Minister for Justice told the Senate that the new exception to the Copyright

Act for both satire and parody would “ensure ‘that Australia’s fine tradition

of poking fun at itself and others will not be unnecessarily restricted.’”

254

Along the same vein, an Australian judge has explained that humor in

Australia has exploited “the larrikinism in the national character to release

us from rigidity and to push the boundaries of tolerance.”

255

Larrikinism is

the name associated with the Australian tradition of irreverent and self-

deprecating humor.

256

Onetime Attorney General Phillip Ruddock (who

later became a Member of Parliament) has opined that, “Australians have

always had an irreverent streak. . . . An integral part of their armoury is

parody and satire—or, if you prefer, ‘taking the micky’ [sic] out of

someone.”

257

Taking the mickey includes “baiting others, particularly the

obviously ‘other,’ with joking, teasing and insult.”

258

To overcome this

treatment effectively, the object of the joke is advised to acknowledge the

251. Jessica Milner Davis, ‘Aussie’ Humour and Laughter: Joking as an Acculturating

Ritual, in

SERIOUS FROLIC: ESSAYS ON AUSTLALIAN HUMOUR 31 (Fran De Groen & Peter

Kirkpatrick eds., 2009).

252. See, e.g., Gerry Turcotte, The Alternative Traditions: An Introduction to

Australian Humour, 10 T

HALIA: STUDS. LITERARY HUMOUR 3, 4–5 (1989), quoted in Davis,

supra note 251, at

31 (observing that “Australia’s humorists are still laughing as part of a

survival process” and noting that joke collectors often nominate as their favorites “a wry

narrative, often with an outback setting”).

253. Fran De Groen, Risus Sardonicus, in S

ERIOUS FROLIC: ESSAYS ON AUSTRLALIAN

HUMOUR 69, 77 (Fran De Groen & Peter Kirkpatrick eds., 2009).

254. Conal Condren et al., Defining Parody and Satire: Australian Copyright Law and

Its New Exception: Part 2—Advancing Ordinary Definitions, 13 M

EDIA & ARTS L. REV.

401, 403 (2008) (quoting Parliamentary Debates, Senate, 29 Nov. 2006, 112 (Christopher

Martin Ellison, Senator) (Austl.)).

255. Fitzgerald, supra note 198, at 14.

256. Australian Humour—Larrikin, C

ONVICTCREATIONS.COM,

http://www.convictcreations.com/culture/comedy.htm (last visited Oct. 23, 2011).

257. Jessica Milner Davis, ‘Taking the Mickey’: A Brave Australian Tradition, 4 T

FINE PRINT 20, 22 (2007).

258. Id.

2011] Defamatory Humor and Incongruity’s Promise 145

skill of the joke and . . . well . . . to return the favor.

259

In the end, the result

is generally a few bruises that heal themselves, a stronger bond (and sense

of equality) among participants in the exchange, a feeling of membership in

a shared culture, and the mental stimulation of lively repartee.

American culture, of course, also features a key role for humor,

260

and

certainly an important component of that humor includes American love of

irreverence and dislike of arrogance.

261

Yet potent features of Australian

society captured in the term ‘larrikinism’ seem more defining of the

national character than in what has become an increasingly diverse and

atomistic American culture.

262

Thus, one might see why results in

Australian disparagement cases are similar to those in the United States. In

striking the balance between reputation and free speech, Australia generally

259. Id. (explaining that “the only truly effective response is to accept that the mickey

has indeed been taken, to appreciate its skill and to reply in kind”).

260. See, e.g., K

UIPERS, supra note 101, at 222–23, 228, which reports on a study

comparing Dutch and American reactions to jokes. The author concludes that Americans

perceive a good sense of humor as key to a person’s moral quality (Americans believe one

needs to have a sense of humor, particularly about oneself) and that Americans are more

“omnivorous” in appreciating and using humor.

261. As Professor Joseph Boskin explains: “It is explicitly declared that its historical

dimension is boundless, its character egalitarian, its breadth all-encompassing, and its

expression open and innovative. An oft-stated remark is that political irreverence is, and

peristently [sic] remains, a distinctive American trait that subjects every form of power to

humorous scrutiny and/or comedic skepticism.” Joseph Boskin, American Political Humor:

Touchables and Taboos, 11 I

NT’L POL. SCI. REV. 473 (1990). See also ORING, supra note 66,

at 101 (describing how humorous invective toward another person was “an art

form . . . conceived of as poetic speech” in the American Frontier).

262. Scholars sometimes trace Australia’s defiant style of humor to the original

convicts banished to Australia, who used humor to prove they were more likeable than those

who shipped them to the Australian continent. While many might characterize contemporary

Australians as restrained and “proper,” the larrikin continues to be a stereotype with which

Australians often self identify. See, e.g., The Larrikin Legacy, C

ONVICTCREATIONS.COM,

http://www.convictcreations.com/history/larrikin.htm (last visited Oct. 23, 2011). Larrikins

are self-deprecating and make jokes about things that should not be laughed at in good

company. Making a joke at a mate’s expense signals a sense of comfort in the strength of a

relationship. Australian Humour–Larrikan, supra note 256.

One might make a case for the proposition that the attitudes of Australia and the United

States are converging. The lineage for American humor, however, differs from the

Australian tradition that gave rise to larrikinism: American attitudes toward humor arose in

the context of different experiences in the country’s original settlement (including slavery

and rehabilitation), longer initial periods of immigration, vast regional biases among the

states, and possibly wider disparity in attitudes between urban and rural dwellers. This early

diversity in the United States gave rise to diverse humor styles. As Constance Rourke wrote

in 1931: Although “[h]umor has been a fashioning instrument in America, cleaving its way

through the national life . . . [no] single unmistakable type emerged; the American character

is still split into many characters.” C

ONSTANCE ROURKE, AMERICAN HUMOR: A STUDY OF

THE

NATIONAL CHARACTER 231–32 (The N.Y. Review of Books 2004) (1931).

146 Southern California Interdisciplinary Law Journal [Vol. 21:93

weighs reputation more heavily than the United States does; however,

Australia has a particularly strong factor that tips the scales for free speech:

the nation’s commitment to a “serious frolic.”

263

From a doctrinal

viewpoint, Australia has reached these results without slavish reliance on

the problem-ridden fact/opinion dichotomy. I explore this important

observation later. First, however, is another line of Australian defamatory

humor cases that requires attention.

b. Ridicule Cases

While Australian and United States disparagement cases both tend to

protect humor, the outcome of contemporary ridicule cases differ.

Australian cases from the last few decades reflect the notion that humor at

“the expense” of the plaintiff—humor that “exposed” the plaintiff to

ridicule—is actionable as defamation without apparent regard for whether

the humor suggests anything factually unflattering about the plaintiff.

264

fact, the District Court of New South Wales suggested that the theory has

greater currency now than in earlier points in the development of

defamation law. Specifically, the court stated that “the concept of an

imputation which holds a person up to ridicule did not receive much

judicial attention” until a 1991 decision in which the defendant had

published a photograph of “the plaintiff, a footballer, in which it is was

possible to see his penis.”

265

The court held that the photograph (which

263. The term comes from a recent scholarly study of Australian humor, SERIOUS

FROLIC: ESSAYS ON AUSTRALIAN HUMOUR (Fran De Groen & Peter Kirkpatrick eds., 2009).

264. For example, in Anderson v Gregory [2008] QCA 419 (23 December 2008)

(Austl.), the court explained that although the defendant may have intended a photograph as

a joke, the joke occurred at the plaintiff’s expense and thus exposed him to ridicule.

Specifically the Anderson court found that it was the juxtaposition of plaintiff’s visage on a

T-shirt next to the words “I beat anorexia” that exposed the plaintiff to ridicule. The court

explained that a “humourous context may in some circumstance serve to render otherwise

defamatory words harmless.” Id. at [6]. Similarly in Wild v John Fairfax Publ’n Pty Ltd.

[1997] NSWSC *1 (Unreported, Levine, J, 8 Aug. 1997) (Austl.), the plaintiff’s visage was

juxtaposed next to a photograph of female buttocks with the captions, “They like to watch”

and “In defence of female voyeurism and sexist ads.” The court found this is capable of

defamatory meaning because it gives rise to imputations that would render him liable to

“hatred, ridicule, or contempt” and “to be shunned and avoided.” Id. at *8. See also Brander

v Ryan [2000] SASC 446, 245 (Austl.) (stating that “it may be inferred from the [satirical]

article itself that the defendants were intending to hold the plaintiff up to ridicule.”).

265. O’Hara v Channel Seven Sydney Pty Ltd.,[2007] NSWDC 81 (14 September

2007) [16] (Austl.)(citing Ettingshausen v Austl. Consol. Press Ltd. (1991) 23 NSWLR

443).

2011] Defamatory Humor and Incongruity’s Promise 147

brought amusement to many who viewed it)

266

was capable of defaming

the plaintiff, because it could subject “the entirely blameless plaintiff to a

more than trivial degree of ridicule.”

267

Australian case law attributes the pedigree for this theory of

defamation liability to a Judge Learned Hand opinion from the United

States Court of Appeals for the Second Circuit in the 1930s.

268

Ironically or

not, that case concerned a photograph featuring an optical illusion

representing the male plaintiff indulging in “indecent exposure.”

269

appears, however, that this theory of defamation liability is no longer

robust in the United States. This is possibly because it clashes with

subsequent First Amendment jurisprudence requiring the plaintiff to prove

266. Not surprisingly, the trial in this case also generated amusement when Hughes,

counsel for the plaintiff cross-examined Martyn, the editor of the publication that ran the

picture:

UGHES: It is a penis isn’t it?

ARTYN: I assume if it is in that part of the body, may be it could be or it might not

be.

UGHES: What else could it be . . . is it a duck?

EPUTATION, CELEBRITY AND DEFAMATION LAW, supra note 211, at 151 (describing the

interchange as “one of the most famous pieces of cross-examination in Australian legal

history.”). The interchange here is apparently an example of trans-Tasman ribbing, tied to

the specifics of New Zealand pronunciation, which to the Australian ear interchanges the

sounds duck and dick (Martyn is a New Zealander).

267. O’Hara v Channel Seven Sydney Pty Ltd.,[2007] NSWDC 81 (14 September

2007) [16] (Austl.). In a case similar to Ettingshausen (the footballer’s penis case) the court

used the ridicule rationale to impose defamation liability on a man who fraudulently

submitted a naked picture of his ex-girlfriend, the plaintiff, a magazine in which it was

subsequently published. Shepherd v Walsh [2001] QSC (Unreported, Jones J, 6 September

2001) (Austl.). See R

EPUTATION, CELEBRITY AND DEFAMATION LAW, supra note 211, at

151–67

for analysis of Shepherd v Walsh and another instance where defamation liability

was threatened for publishing a photograph of exposed body parts.

268. See, e.g., O’Hara v Channel Seven Sydney Pty Ltd.,[2007] NSWDC 81 (14

September 2007) [16] (Austl.) (citing Burton v. Crowell Publ’g Co., 82 F.2d 154 (2d Cir.

1936)).

269. Burton v. Crowell Publ’g Co., 82 F.2d 154, 154 (2d Cir. 1936) (reporting that the

plaintiff alleged that the photograph suggested he was “physically deformed and mentally

perverted”). The case does not name the body part involved, but the description suggests

that the photograph depicted that the plaintiff’s penis as “grotesque, monstrous, and

obscene.” Id. For another, older example of this concern with ridicule, see Triggs v. Sun

Printing & Publ’g Ass’n, 71 N.E. 739, 742 (N.Y. 1904) (quoting Donoghue v. Hayes,

(1831) Hayes Ir. Exch. Rep. 265, 266), which found statements that were “calculated . . . to

injure the plaintiff’s reputation, and to expose him to public contempt, ridicule, or shame” to

be libelous per se. For a discussion of older United States cases, see generally Eric Scott

Fulcher, Note, Rhetorical Hyperbole and the Reasonable Person Standard: Drawing the

Line Between Figurative Expression and Factual Defamation, 38 G

A. L. REV. 717, 726

(2004).

148 Southern California Interdisciplinary Law Journal [Vol. 21:93

falsity in defamation actions,

270

or because plaintiffs have found that

invasion of privacy doctrine is more amendable to such tort claims.

271

A central impulse behind these ridicule cases seems to reflect a desire

to remedy damage to the plaintiff’s dignity.

272

Indeed, ever since Professor

Robert Post’s classic work, The Social Foundations of Defamation Law:

Reputation and the Constitution, identified the specific components of

reputation implicated by defamation law, few would dispute that dignity—

along with property and honor—are possible human interests that a

defamatory communication can damage.

273

Post describes dignity as a

private concept that operates in a public sphere and encompasses “the

respect (and self-respect) that arises from full membership in society.”

274

He explains that “[p]ersons who are socially acceptable will be included

within the forms of respect that constitute social dignity.”

275

When that

social dignity is damaged, a court might rehabilitate it with a defamation

270. In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986), the

Supreme Court held that the First Amendment requires plaintiffs to prove falsity in a

defamation action “against a media defendant for speech of public concern.” In a subsequent

decision, justices writing in separate opinions concluded that this holding should not be

confined to media defendants. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472

U.S. 749, 773 (1985) (White, J., concurring). Although one might argue that something like

inadvertent nudity is not a matter of public concern, Philadelphia Newspapers and Dun &

Bradstreet offer a disincentive for plaintiffs to choose defamation when trying to frame a

tort cause of action.

271. See, e.g., Daily Times Democrat v. Graham, 162 So.2d 474 (Ala. 1964)

(recognizing invasion of privacy cause of action where reporter took photograph of

plaintiff’s skirt being blown above her waist at a fun house); R

ESTATEMENT (SECOND) OF

TORTS §652 (1977) (providing that “[o]ne who intentionally intrudes, physically or

otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is

subject to liability to the other for invasion of his privacy, if the intrusion would be highly

offensive to a reasonable person”).

272. R

OLPH, supra note 211, at 147. Indeed, one explanation for these cases is that they

arise in the defamation context, because Australia lacks the privacy tort that might remedy

similar violations under American law. See Peter Bartlett, Privacy Down Under, 3 J. INT’L

MEDIA & ENT. L. 145, 163 (2010) (discussing lack of general protection of individual

privacy under Australian law).

273. Post, supra note 122, at 693. Post describes the interests of property and honor as

follows: property is “understood to be a form of ‘capital’ since it ‘creates funds’ and the

potential for ‘patronage and support.’” Id. at 694 (quoting J

OEL HAWES, LECTURES

ADDRESSED TO THE YOUNG MEN OF HARTFORD AND NEW HAVEN 112 (Oliver D. Cooke &

Co.1828)). According to Post, honor “can be forfeited by improper behavior, but . . . cannot

be individually created.” Id. at 70. Honor, he explains, “is a matter of either fulfilling or

failing to fulfill the requirements of one’s social position.” Id.

274. Id. at

711.

275. Id.

2011] Defamatory Humor and Incongruity’s Promise 149

remedy by “authoritatively determin[ing] that the defendant’s departure

from the rules of civility was unjustified.”

276

Under Post’s analysis, one is hardly surprised that contemporary

United States courts seem uninterested in using defamation liability to

remedy injury to dignity. In Post’s view, that portion of reputation

representing dignity clashes with “the essential premise of constitutional

autonomy.”

277

And what is that central premise? It is “the right to differ as

to things that touch the heart of the existing order.”

278

United States courts

might be more comfortable curtailing the right to challenge “the existing

order” when the plaintiff’s cause of action features an individual right

possessing comparable constitutional pedigree—such as privacy. This

would explain the inclination of United States courts to allow invasion of

privacy actions to remedy damages to dignity.

279

United States case law was the raw material for Post’s analysis. In a

parallel study of Australian cases, Professor David Rolph points out that

Post’s conceptualization fails to account for “a significant rights-based

jurisprudence in common law countries, such as Canada, the United

Kingdom and New Zealand, [which manifests] a concern for individual

reputation as a dignitary right.”

280

International instruments such as the International Covenant for

Political and Civil Rights and the Universal Declaration of Human Rights

also reflect this emphasis on individual dignity.

281

Yet this observation

does not explain Australia’s approach to ridicule cases, since Australian

courts and law makers have not formally developed such a rights-based

jurisprudence.

282

Nonetheless, Australia’s embrace of international law and

overlapping legal traditions with those countries that share its enthusiasm

for international law may provide some explanation for its adherence to a

conception of defamation that protects against invasion on individual

276. Id. at 712–31.

277. Id. at 737.

278. Id. at 737–38

(citing W. V. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)).

279. For a review of such actions, see R

ESTATEMENT (SECOND) OF TORTS §652 (1977)

(annotations). For a contrary suggestion, arguing that American courts are sometimes

reluctant to use privacy torts in place defamation, see supra note 198.

280. R

OLPH, supra note 211, at 30.

281. International Covenant on Civil and Political Rights, art. 17, Dec. 16, 1966, 999

U.N.T.S. 171 (linking protection of reputation to sanctity of privacy); Universal Declaration

of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

282.

ROLPH, supra note 211, at 30. The ridicule cases may, however, be viewed as an

attempt to remedy an invasion of privacy—which of course protects a form of human

dignity with analytical kinship to the individual to reputation.

150 Southern California Interdisciplinary Law Journal [Vol. 21:93

dignity. Moreover, what is even clearer is that (sadly for many of us) the

United States has not embraced such enthusiasm for international

definitions of human rights. One can, then, credibly explain at least some of

the gulf between the United States and Australia by pointing to a different

approach to the individual right of human dignity.

c. Hanson v. Australian Broadcasting Corp.: A Category of its Own

One prominent Australian defamatory humor case does not fit neatly

into the disparagement/ridicule paradigm: Hanson v. Australian

Broadcasting Corp.

283

Although unusual, this case should not be dismissed

as simply sui generis. Hanson deserves serious attention because of its

prominence in the fabric of Australian defamation lore and its capacity to

shed light on the difficulties of regulating defamatory humor.

The Hanson plaintiff, Pauline Hanson, was a member of the

Australian House of Representatives who advocated such policies as

governmental barriers for prospective immigrants to Australia, pride in

Australian nationalism, and eliminating special government assistance for

aboriginal people.

284

She brought the defamation suit to enjoin a musical

composition entitled “Back Door Man” from being broadcast on national

radio, and—remarkably from the standpoint of an American jurist—she

succeeded in getting her requested injunction.

285

The challenged broadcast

was created with sound tracks of Hanson’s own words, stringing together

snippets of her speeches to provide the song’s lyrics. The lyrics are a

nonsensical ramble, including such statements as: “I’m a back door man”;

“I’m a homosexual”; “I’ve called for a homosexual government”; “I’m

proud that I’m not straight”; “I’m not human”; “I like trees and I like

shrubs and plants”; “I’m a backdoor man for the Klu [sic] Klux Klan with a

very horrendous plan. I’m a very caring potato.”

286

Invoking concern with

political speech, the Australian Broadcasting Corporation fought the

injunction request by arguing that the sexual and Ku Klux Klan references

in the song alluded “in a satirical or ironic sense to

283. See Austl. Broad. Corp. v Hanson [1998] QCA 306 (28 September 1998) (Austl.).

284. L.M.

BOGAD, ELECTORAL GUERILLA THEATRE: RADICAL RIDICULE AND SOCIAL

MOVEMENTS 167–68 (2005); Geoffrey Stokes, One Nation and Australian Populism, in THE

RISE AND FALL OF ONE NATION 23, 27–29 (Michael Leach, Geoffrey Stokes & Ian Ward

eds., 2000).

285. The case is also remarkable under Australian law itself, which shares the

American aversion to prior restraint of speech. See David Rolph, Showing Restraint:

Interlocutory Injunctions in Defamation Cases, 14 M

EDIA & ARTS L. REV. 255 (2009).

286. Austl. Broad. Corp. v Hanson [1998] QCA 306 (28 September 1998) [2] (Austl.).

2011] Defamatory Humor and Incongruity’s Promise 151

[Hanson’s] . . . conservative political views”

287

as a House of

Representatives member. Rejecting this contention, the Queensland

appellate court found nothing in the song relating to discussion of public

matters “fundamental to our democratic society.”

288

The appellate court

approvingly cited the lower court’s conclusion that the song was

defamatory because it asserted that she was a pedophile and a

homosexual.

289

By the measure of the courts’ reasoning, Hanson is a disparagement

case: the song defamed Pauline Hanson because it suggested that she

possessed ‘unsavory’ characteristics such as homosexual and pedophilic

tendencies. But is that really how the courts interpreted the song? Is that

really the wrong the courts sought to remedy? Several reasons suggest

otherwise. To begin with, the suggestion that Hanson possesses these

tendencies is extravagantly far from any facts known about her. Hanson

was well known to believe that homosexuality is unnatural.

290

Second, the

creator of the song—Simon Hunt—had explained that he used a satirical

strategy in the lyrics similar to that used by Weimar satirists in Berlin

cabarets, who found it necessary to find alternatives to usual exaggeration

strategies in satirizing Adolf Hitler’s views.

291

Hunt said that like these

Hitler satirists, he sought to reveal the “ridiculousness of [Hanson’s] style

of argumentation by using it in retaliation to different matters.”

292

As such,

whatever one says about the decision, the courts clearly did not embrace

the song on the terms it was intended—on a literal level it was nonsense,

yet on a deeper, rhetorical level it was a serious comment on Hanson’s

communication style and politics.

287. Id. at 4.

288. Id. at 6.

289. Id. at 5.

290. See Magnusson, supra note198, at 285. Commentators were somewhat

dumbfounded by the courts’ suggestion that the song should in any way be taken as

suggesting anything factual. See M

ARGO KINGSTON, OFF THE RAILS: THE PAULINE HANSON

TRIP 194 (1999) (observing that after the judgment in the Hanson case, “a posse of Sydney

defamation lawyers and academics lampooned its reasoning”); Elizabeth Handsley & Gary

Davis, Case Notes, Defamation and Satire: Hanson v. Australian Broadcasting Corporation,

2000 TLJ

LEXIS 12 (2000) (reasoning that “many of the statements in the song were just so

silly, either on their face or in the context [of being heard in Mrs. Hanson’s voice], that the

listener would have been on notice that the song was not to be taken literally”); Magnusson,

supra note198, at 286 (explaining that the song’s satire derives in part from “the insertion in

Hanson’s own voice, of seemingly random and incoherent non sequiturs. They provide a

biting critique of Hanson’s speech patterns and interview style.”).

291. Magnusson, supra note 198, at 284–85.

292. Handsley & Davis, supra note 290, at 4 (paraphrasing Simon Hunt).

152 Southern California Interdisciplinary Law Journal [Vol. 21:93

The appellate court also treated the defendant to a “tails I win, heads

you lose” approach to the defendant’s “fair comment” defense. On one

hand, the court rejected the defendant’s averment that the song constituted

a good faith comment on a subject of public interest, noting that sexual

preferences were matters of private, not public, interest.

293

The court also

reasoned, however, that the defendant’s arguments were internally

inconsistent since the defendant relied on a defense designed to protect

serious matters of public debate, yet maintained that the song itself should

be “dismissed as a piece of derisory fun or nonsense not to be taken in any

degree seriously.”

294

As commentators have argued, this reasoning handed

the defendant the worst of all worlds: “[T]he material was taken literally

and seriously for the purpose of determining whether it was irresistibly

defamatory, and rejected as a piece of nonsense for the purpose of

determining the potential availability of the [fair comment] defense.”

295

What besides literal disparagement of Pauline Hanson might have

concerned the courts? Could it be a perceived attack on her dignity? The

Hanson court’s reference to the “private matters” of sexual preference adds

credence to this interpretation—as does the court’s embrace of a strained

reading of the alleged untruths in the song.

296

Hanson may thus be taken on

its own terms as a disparagement case or conceived of as a ridicule case.

And, as suggested earlier, one could also simply dismiss the case as a

293. Austl. Broad. Corp. v Hanson [1998] QCA 306 (28 September 1998) [5] (Austl.).

294. Id.

295. Handsley & Davis, supra note 290, at 22. See also Magnusson, supra note 198, at

282 (reasoning that where “the imputation of ridicule arises from particular words that can

be regarded as either expressing an opinion or asserting a fact, the quality of ‘ridicule’ will

often arise from exaggerated or false meanings in ways that would defeat the defences of

truth or fair comment”).

296. Reading the Hanson decision as concerned with avoiding ridicule and attacks on

the dignity of an elected politician might shed light on another phenomenon in Australian

defamation practice that was documented before the decision: at one time, Australian

politicians represented proportionally greater percentage of defamation plaintiffs than

elected politicians represent among United States defamation plaintiffs. See Newcity, supra

note 189, at 25–26

(observing that “[w]hereas Australian elected officials initiate

proportionally more defamation suits than do their American counterparts, Australian

nonelected public officials bring a smaller portion of defamation suits than do American

nonelected officials”). One surmises that Australian politicians pursue their lawsuits with

the expectation of successfully vindicating their alleged injury. A ready explanation for the

disparity is the formal obstacle in the United States (missing in Australia) of New York

Times, Co. v. Sullivan, 376 U.S. 254 (1964), and its actual malice standard. Yet the High

Court adopted a similar approach to New York Times, Co. v. Sullivan in 1997. See Lange v

Austl. Broad. Corp. (1997) 189 CLR 520, 548–49 (Austl.). One wonders whether the

statistics would come out differently today.

2011] Defamatory Humor and Incongruity’s Promise 153

sport—albeit a sport with interesting insights into defamatory humor

regulation.

4. Australian Lessons for the United States

Australian defamation cases have a variety of lessons for United

States defamatory humor cases. Some of the disputes would have come out

quite differently in the United States and stand as an example of what not

to do. Certainly a prior restraint like that issued in Hanson would be

inimical to First Amendment doctrine, as would unfettered defamation

liability asserted by a public official such as Pauline Hanson on a matter

with such obvious political content. The courts’ handling of the humor

defense is also not worthy of imitation, since the reasoning suggests that

humor cannot convey serious political messages.

297

To treat humor in this

way is not only to fail to understand the subtleties of political discourse, but

also to denigrate the skill and artistry of humorists.

298

The Australian ridicule cases are also not a particularly useful

paradigm for United States courts seeking guidance with defamatory

humor. The Australian cases’ solicitude for dignitary interests likely

clashes with the First Amendment doctrine’s current orientation toward

restricting defamation liability by giving wide berth to dissent from the

settled order. Were United States courts to track the Australian ridicule

cases in developing defamation doctrine, one can imagine the cries of

criticism bemoaning the loss of the First Amendment’s force in protecting

unpopular ideas.

That is not to say that protecting dignity, which is often given short

shrift as Americans struggle with such questions as whether and how to

regulate racist or hate speech, is not a worthy concept. Yet the context of

humorous ridicule does not present the best setting for venturing an

experiment with regulating communication’s potential for harming human

dignity. For many cases, a cause of action already exists in the United

States to remedy such harms: invasion of privacy.

299

To add defamation as

297. McCallum, supra note 238, at 214 (arguing that as framed in Hanson, the humor

defense suggests that “comedy itself is a ridiculous activity that has earned no right to be

taken seriously . . . [and] implies that comedy is inevitably constrained by its own absurdity

and can never operate in the real world of political and intellectual discourse”).

298. Id. at 215 (arguing that humor defense is “a denigration of the work of any

artist . . . challenging such basic principles of comic practice as recognition-humour,

identification and comic distance from painful realities”).

299. I do not, however, want to overstate the availability of invasion of privacy as a

theory of liability. As Professor Rodney Smolla has pointed out, United States courts

actually seem to prefer defamation to other dignitary torts—at least where defamation

liability is available. My point, however, is that defamation is not really a viable option in

154 Southern California Interdisciplinary Law Journal [Vol. 21:93

a theory of liability would pick a fight with the First Amendment where the

fight might not be necessary to correct a wrong done. Moreover, the United

States has experienced dramatic social, political, and legal controversy over

regulating speech where attacks on dignity are mixed with actual threats to

safety.

300

The magnitude of these controversies suggests that allowing

defamation doctrine to regulate attacks on dignity alone would be unwise,

whether or not those attacks manifest as humor or attempts at humor.

A more apt context for United States courts to consider a more

nuanced understanding of dignity and other forms of reputation is that of

disparagement cases, where humor inflicts harm on the plaintiff by

suggesting something negative about the plaintiff’s character or actions. It

is here that the Australian disparagement cases might provide useful

lessons. In the disparagement context, Australian courts often reached the

same humor-protecting results as one would expect in United States courts.

Yet the Australian courts arrived at the results without the obfuscation and

difficulties of First Amendment doctrine governing fact and opinion.

this context, so we should simply leave in place invasion of privacy actions where existing

law would support them in meritorious cases. See Rodney A. Smolla, Accounting for the

Slow Growth of American Privacy Law, 27 N

OVA L. REV. 289, 292–96 (2002) (stating that

“false light” right of privacy causes of action have been “devoured” by defamation actions).

Smolla explains that the commonly asserted distinction that defamation compensates for

reputational damage while false light is for emotional harm is largely academic and blurred

in real world defamation practice. Courts are permissive in allowing plaintiffs to recover for

essentially internal emotional injuries in defamation actions. Id. at 294.

300. See, e.g., C. Edwin Baker, Autonomy and Hate Speech, in E

XTREME SPEECH AND

DEMOCRACY 139, 147 (Ivan Hare & James Weinstein eds., 2009) (arguing that regulators

should restrict hate speech only upon an empirical showing of such matters as virulent

racism or genocidal practices such that the need to protect individuals from the harm of hate

speech outweighs the societal benefits of autonomy and the protection of democracy that

come with absolute free speech); Mari J. Matsuda, Legal Storytelling: Public Response to

Racist Speech: Considering the Victim’s Story, 87 M

ICH. L. REV. 2320, 2336–38, 2351–53

(1989) (describing how the United States has protected such activities as Ku Klux Klan

marches, but has heretofore been reluctant to protect against the effect of hate speech on

victims, which can include physiological symptoms, emotional distress, and psychological

effects that prompt victims to “quit jobs, forgo [sic] education . . . avoid certain public

places, curtail their own exercise of speech rights, and otherwise modify their behavior and

demeanor”); Ronald Turner, Regulating Hate Speech and the First Amendment: The

Attractions of, and Objections to, an Explicit Harms-Based Analysis, 29 I

ND. L. REV. 257,

294–97 (1995) (pointing out that the United States has avoided regulating hate speech even

though it can cause individuals the same humiliation, damage to reputation, and emotional

torment that victims of dignitary torts suffer); Jeremy Waldron, Dignity and Defamation:

The Visibility of Hate, 123 H

ARV. L. REV. 1596, 1636 (2010) (arguing that a free speech

exception should be fashioned to protect against the brutal spirit murder resulting from hate

speech and pointing out that the values of autonomy of personal expression and democracy

do not merit protecting other damaging forms of expression, such as child pornography).

2011] Defamatory Humor and Incongruity’s Promise 155

The fact/opinion dichotomy is a well-intentioned mechanism for

seeking to identify when a communication suggests an untruth that inflicts

harm on the plaintiff. Yet it is riddled with difficulties in application in the

humor context and often displaces discussion of the individual reputational

interests implicated in a case. Although I do not advocate abandoning the

dichotomy altogether, I do suggest that analysis would benefit if courts

explicitly considered the harm to the plaintiff’s reputation that may go

unremedied if the defamation case fails.

301

The fact/opinion dichotomy

might continue to play a role in the decision so long as it does not obfuscate

the reputational injury and courts are mindful of the dichotomy’s

significant limitations in understanding humor’s impact.

The First Amendment is key to the political, governmental, and social

systems in the United States, but it is not a shorthand or a replacement for

justice. First Amendment doctrine should not hijack discussion of all

factors relevant to whether a court should regulate communication. Candor

and good judicial decision-making in the United States would be served by

explicit discussion of all aspects of the plaintiff’s reputation threatened by

the defendant’s attempt at a joke. This, it seems, is the most forthright

approach to evaluating how and when to accommodate the corrective

justice goals at play when our system of civil justice recognizes a cause of

action for defamation.

IV. INCONGRUITY’S PROMISE

We have seen, thus far, several mechanisms for guiding United States

courts in the difficult task of regulating defamatory humor. When used

judiciously, the First Amendment and common law doctrines governing the

fact/opinion distinction help take account of important interests associated

with free expression, such as truth seeking, individual autonomy, social

tolerance, and democratic self-governance.

302

Next, experience from other

301. This approach is arguably consistent with public opinion. A recent study by the

First Amendment Center concludes that “a significant percentage of Americans are reluctant

to give full First Amendment protection to comedic speech, art or performances that could

potentially insult or offend others. There appears to be a willingness to give up a little

liberty in exchange for fewer hurt feelings.” Kenneth A. Paulson, Comedy and Freedom of

Speech, F

REEDOM FORUM (2002), available at

http://www.freedomforum.org/publications/first/sofa/2002/ComedyandFreedomofSpeech.pd

f. The two topics that the study found Americans most comfortable with regulating were

humor that was offensive to racial groups (with 63 percent believing government should

prevent such comments in public) and to religious groups (with 58 percent believing

government should prevent such comments in public). See id.

302. See supra notes 141–149 and accompanying text for further discussion of these

values, which are reviewed generally in C

HEMERINSKY, supra note 121, at 925–32.

156 Southern California Interdisciplinary Law Journal [Vol. 21:93

countries, such as Australia, provides the framework for more nuanced

consideration of reputational interests. While the First Amendment remains

a mainstay of American civil liberties and government, justice provides

counsel that explicit consideration of a defamation plaintiff’s various

reputational injuries is necessary, and the Australian cases demonstrate an

important angle on that process.

Fortunately, courts have yet another important mechanism for

evaluating whether to regulate defamatory humor: interdisciplinary

understanding of humor’s various permutations. In particular, the three

categories of humor—superiority humor, release humor, and incongruity

humor—provide a useful rubric for courts deciding whether to use civil

remedies in defamation actions to regulate humor. In using these

categories, courts must tread carefully, since the categories are not

mutually exclusive and the characterization of a particular joke requires a

large measure of subjective interpretation. Nonetheless, the characterization

process can help courts evaluate the social interests in protecting the joke

from regulation. By focusing on what type of humor is involved in a

challenged communication, the court can more knowledgeably evaluate the

conflicting interests, considering both the nature and scope of the plaintiff’s

injury as well as the nature and scope of the defendant’s misconduct.

Of the three categories, superiority humor is probably the most

straightforward. If a court concludes that the primary purpose of a joke is to

disparage others to the jokester’s advantage, the court can comfortably

conclude that the joke strikes at the heart of tort law’s goal: providing an

avenue of civil recourse to remedy a tortious injury inflicted to benefit the

wrongdoer.

303

The court may ultimately determine that First Amendment

considerations mandate avoiding liability. For example, the Supreme Court

often cites parody and satire as humor forms worthy of constitutional

protection.

304

If, however, a court decides to insulate the superiority humor

303. See, e.g., Goldberg & Zipursky, supra note 11, at 918 (arguing that the goal of tort

suits is to provide plaintiffs with an avenue for getting redress from those who have inflicted

a wrong on them). Goldberg and Zipursky focus their energy on analyzing the importance of

a “wrongs-based” view of tort law rather than a “loss-based” view. See id. at 946. It is not

necessary for me to enter a debate about this distinction, since the distinction is not crucial

to identifying a useful role for characterizing the type of humor involved in a defamation

action. The character of the joke is relevant to appreciating both the scope of the defendant’s

misconduct and the plaintiff’s injury.

304. See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46, 54–56 (1988) (celebrating the

importance of parodists and satirists in public debate over politics); Falwell v. Flynt, 805

F.2d 484, 487 (4th Cir. 1986) (Wilkinson, J., dissenting from denial of petition for en banc

rehearing) (“[s]atire is particularly relevant to political debate because it tears down facades,

deflates stuffed shirts, and unmasks hypocrisy”); Fitzgerald, supra note 198, at

2011] Defamatory Humor and Incongruity’s Promise 157

from liability, the court does so with the understanding of possible personal

injury that might go unremedied.

By contrast, release humor is probably the least helpful of the three

humor categories. To be sure, plenty of sources suggest that release humor

serves important individual and social functions of processing discomfort

with taboo or negative subjects.

305

Yet these functions do not translate

neatly into any calculus about whether a court should regulate defamatory

humor. Specifically, one wonders whose discomfort a court should

consider and how: The jokester’s discomfort? The discomfort of the

plaintiff who was the joke’s subject? Or should the court simply consider

general social disapproval or collective discomfort over the subject matter?

This latter possibility leads to a particular problem with regulating release

humor: when a court decides to regulate a joke about one of the subjects

associated with release humor—sex, incest, death, disability, excretion, and

the like—one wonders whether the court is simply imposing its view of bad

taste.

306

Not only is the role of regulating taste inherently problematic for a

court, but the concept of “taste” is relatively unhelpful in evaluating First

Amendment values.

307

What is an especially useful aid in deciding cases of defamatory

humor is the concept of incongruity. Starting with the premise that humor

is often artistic and beneficial to individuals and communities, a court

should evaluate whether in fact a communication can be characterized as

humorous. Incongruity theory provides a testing rod.

As discussed above, most humor theorists maintain that incongruity is

a necessary, though not sufficient, condition for a communication to be

(explaining satire’s important social role that “combines laughter with information and

[sometimes lacerating] criticism.”).

305. See supra notes 35–40 and accompanying text for a discussion of the function of

release humor.

306. See New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157, 166 (Tex. 2004)

(explaining that courts should not be cast in the role of monitoring “bad taste”); Little, supra

note 3, at 1285–88 (discussing the problems that arise when courts are cast in the role of

regulating taste).

307. It is perhaps for this reason that United States courts initially abandoned trying to

determine whether humor improperly undermined the dignity of a particular plaintiff. For an

example of the Supreme Court steering clear of defining First Amendment restrictions on

governmental judgments about taste, see, for example, Nat’l Endowment for the Arts v.

Finley, 524 U.S. 569, 585–86 (1998), observing that in the arts funding context, the

government is making decisions about “artistic worth” and cannot be guided by “absolute

neutrality.”

158 Southern California Interdisciplinary Law Journal [Vol. 21:93

funny.

308

Thus, a court evaluating whether a communication merits

protection from liability might, as a starting point, evaluate the degree of

incongruity contained in the communication. Incongruity comes in many

permutations, some slapstick-ed-ly obvious and some nuanced. Common

heuristics of incongruity humor nonetheless exist, suggesting that a court

might look fruitfully for such rhetorical techniques as juxtaposition of

diverse phenomenon, illogical or irrational sequencing, joinder of

opposites, dueling scripts, and a set-up that primes for a later surprise.

309

Of course, a court’s identifying one of these techniques in a

communication does not definitively determine that the communication is

funny or should be insulated from liability. The presence of incongruity,

however, suggests that those who viewed or heard the communication were

more likely to have perceived it as a joke, as something not to be

interpreted literally and as something communicated for a reason other than

simply conveying information about its subject. If that is the case, then the

communication may be less likely to hurt the plaintiff.

310

In this way,

incongruity serves a useful proxy for the reasonable reader’s or listener’s

understanding: the greater the incongruity, the less likely that the reader or

listener interpreted the communication as conveying solidly unflattering

“truths” about the plaintiff. In addition, the incongruity’s presence cues the

court to the possibility that the communication is capable of amusing its

audience and, thus, might satisfy one of the myriad positive functions, for

individuals or groups, associated with humor.

Incongruity, therefore, provides tests for understanding how a

communication is interpreted, as well as for evaluating the individual and

social worth of the communication. Both of these are important, though not

determinative, factors for a court to consider while evaluating whether a

communication is the type that should flourish, unfettered by civil liability.

In other words, incongruity’s presence performs a screening function: a

first step signaling the court to continue with the complex process of

308. See supra notes 41–44, 55–65, and accompanying text for a discussion of

authority supporting the necessity of incongruity to humor.

309. See supra notes 3945–54 and accompanying text for an inventory of various

earmarks of incongruity humor.

310. In addition to the possibility that a mere joke might not inflict harm, damages

from humor may be particularly difficult to establish. Under First Amendment principles

established in Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974), liability for defamation

“extends no further than compensation for actual injury,” proven by competent evidence.

Even if jokes are actionable, they may be unlikely to cause provable reputational injury. See

Dorsen, supra note 9

(pointing out the difficulty of providing damages from satire).

2011] Defamatory Humor and Incongruity’s Promise 159

evaluating whether First Amendment or defamation principles protect the

communication.

A. A

RE COURTS CAPABLE AND WILLING TO IDENTIFY INCONGRUITY?

Is testing for incongruity an intellectual operation that courts have the

capacity and willingness to undertake? Yes. Courts interpret texts all the

time, testing for such qualities as argumentation technique, linguistic

patterns, logic, and internal consistency.

311

Moreover, one can infer courts’

capacity to discern incongruity from anecdotal evidence showing that they

are already implicitly scanning challenged communications for

incongruities. In an earlier study, I concluded that courts in three legal

contexts evince a consistent tendency not to impose civil liability for

incongruity humor.

312

The contexts I studied are diverse—contract,

trademark infringement, and employment discrimination—and arguably

represent three pillars of law (contract, property, and tort).

Defamation cases show the same preference for incongruity humor. In

the United States, this preference is clear from the fact/opinion dichotomy

itself. When evaluating whether a communication suggests any factual

matters about the plaintiff, courts are routinely asking whether the qualities

of the communication—such as its logic and its congruence with known or

external circumstances—could be reasonably understood as describing real

facts.

313

Several classic as well as contemporary cases illustrate how this

search for factual inferences is really no more than a search for

incongruities in the challenged communication. For example, in Polygram

Records, Inc. v. Superior Court,

314

the court evaluated a defamation claim

311. Michael L. Geis, On Meaning: The Meaning of Meaning in the Law, 73 WASH. U.

L. Q. 1125, 1132 (1995) (presenting a case study of linguistic reasoning in the Supreme

Court); Peter Meijes Tiersma, The Judge as Linguist, 27 L

OY. L. REV. 269, 269-70 (1993)

(exploring judicial analysis of language in a variety of contexts, including criminal law,

torts, contracts, and wills); Stephanie A. Vaughan, Persuasion Is An Art . . . but It Is Also an

Invaluable Tool in Advocacy, 61 B

AYLOR L. REV. 635 (2009) (discussing effective

persuasive techniques). See generally L

AWRENCE M. SOLAN, THE LANGUAGE OF JUDGES

(1993) (reviewing linguistics analyses in judicial opinions). See Janet E. Ainsworth, In a

Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 Y

ALE L.J.

259, 320–21 (1993) (analyzing linguistic differences between men and women and

proposing that legal doctrines accommodate these differences).

312. See Little, supra note 3, at 1239

(describing preference for incongruity humor in

contract, trademark infringement, and employment cases).

313. See, e.g., New Times, Inc. v. Isaacks, 146 S.W.3d 144, 158 (Tex. 2004)

(evaluating whether a newspaper spoof was subject to defamation liability by analyzing

whether the publication could reasonably be understood as describing real facts).

314. Polygram Records, Inc. v. Superior Court, 216 Cal. Rptr. 252 (Ct. App. 1985).

160 Southern California Interdisciplinary Law Journal [Vol. 21:93

based on Comedian Robin Williams’s parody of advertising practices and

wine snobbery. According to the court, Williams developed his parody

around “the fantasy of a black wine ‘tough enough’ to be advertised by

‘Mean Joe Green.’”

315

In the crescendo of its decision insulating the parody

from liability, the court concluded that Williams’s “suggestions that the

hypothetical wine is a ‘motherfucker,’ black in color, tastes like urine, goes

with anything ‘it’ damn well pleases, or is ‘tough’ or endorsed by ruffians

are obvious figments of a comic imagination impossible for any sensible

person to take seriously.”

316

Along the same lines, another court scanned a fictional editorial for

signs of imaginative “exaggeration and distortion,” concluding that the

editorial contained too many incongruities to support defamation

liability.

317

Referring to specific parts of the editorial, the court queried:

“Would a six-year-old be able to comment intelligently on the works of

[J.D.] Salinger and [Mark] Twain, while using expressions like ‘[e]xcuse

my French’? Would a faith-based organization label itself ‘GOOF’? Would

a judge say that it is time to panic and overreact?”

318

Often United States courts look for reference to an act or state of

being that is physically impossible. Thus, the court in Pring v. Penthouse

International, Ltd.

319

concluded a spoof’s description of a beauty contestant

315. Id. at 260.

316. Id. at 260–61.

317. Isaacks, 146 S.W.3d at 158.

318. The specific portions of the editorial supporting these rhetorical questions

provided as follows:

*Reference to a freedom-opposing religious group that goes by the acronym,

“GOOF,” standing for “God Fearing Opponents of Freedom.”

*Reference to a judge stating that “any implication of violence in a school

setting . . . is reason enough for panic and overreaction.”

*Reference to a six-year old’s statement in reaction to her book report: “Like, I’m

sure. It’s bad enough people think like Salinger and Twain are dangerous, but

[Maurice] Sendak? Give me a break, for Christ’s sake. Excuse my French.”

Id. at 149, 158.

An even more recent example is Hamilton v. Prewett, 860 N.E.2d 1234, 1247 (Ind. Ct. App.

2007). In Hamilton, the court decided that a website was not capable of defamation liability

because it was a parody. In support of this decision, the court noted that the website asserted

that a group of “Amish Aliens” from another solar system invaded the Earth and were

taking over the world by placing minerals in our water. Id. at 1246. The parody continued

that the only way to cope was to “submit to Amish Aliens” or to purchase the plaintiff’s

water conditioning products. Id.

319. Pring v. Penthouse Int’l, Ltd., 695 F.2d 438, 441 (10th Cir. 1982) (evaluating a

beauty contest spoof by reference to rhetorical hyperbole case law and deciding that the

2011] Defamatory Humor and Incongruity’s Promise 161

having sex with her coach during a competition involved physically

impossible acts. Another court reasoned that liability should not attach to a

song parody containing illogical or impossible statements, such as directing

the plaintiff to “‘move on in’ with his ‘live-in lover.’”

320

Australian defamation cases also track incongruity reasoning. For

example, Australian courts take the position that “vulgar abuse” escapes

liability, reasoning that a communication can be “so excessive, irrational

and disproportionate that the imputations conveyed would not be taken

seriously, and so cannot reasonably be said to arise.”

321

Similarly,

defamation liability does not attach if the challenged communication is

“self-evidently absurd”

322

or the plaintiff could not reasonably be believed

to possess certain unfavorable qualities.

323

United States and Australian courts thus already seem to have made

their way to a similar insight as humor theorists: a communication

containing incongruities is more likely to be funny and less likely to be

interpreted as a serious statement. This practice suggests that courts would

take well to more explicit consideration of incongruity as part of textual

analysis of allegedly defamatory humor.

spoof could not be interpreted as providing actual facts since the spoof presented

“impossibility and fantasy within a fanciful story”).

320. Freedlander v. Edens Broad., Inc., 734 F. Supp. 221, 228 (E.D. Va. 1990).

321. Magnusson, supra note 198.

322. Coleman v John Fairfax Publ’ns Pty Ltd., (2003) NSWSC 564 (25 June 2003)

[22]–[23] (Austl.).

323. Brander v Ryan [2000] SASC 446 ¶¶ 77–89 (Austl.). Prior to the Uniform

Defamation Act, Australian courts also made use of the concept of congruency in evaluating

the fair comment defense. As a judge stated in one case: “I am of the opinion that . . . the

comment established by the defendant should be congruent with the imputation to which it

is pleaded. If a comment is established which falls short of such congruency the defence is

not made out.” David Syme & Co. v Lloyd [1984] 3 NSWLR 346, 358 (Austl.) (Glass, JA),

discussed in Andrew Kenyon, Defamation, Artistic Criticism, and Fair Comment, 18

YDNEY L. REV. 193, 209–10 (1996). Australian Broadcasting Corp. v Hanson provides an

important counterexample of the tendency of Australian courts to insulate incongruous

humor from liability. [1998] QCA 306 (28 September 1998) (Austl.). The court in Hanson

found the song parody defamatory even though it was chock full of incongruities. For

example, the song included statements that no person would ever say about themselves.

Handsley & Davis, supra note 290, at 6 (concluding that no person could be expected to say

things like “You know I’m not human” and “I have very horrendous plans”). In addition, the

song was filled with nonsensical juxtapositions and non-sequiturs. Magnusson, supra note

198, at 286 (explaining that the songs satire derives in part from “the insertion in Hanson’s

own voice, of seemingly random and incoherent non sequiturs”).

162 Southern California Interdisciplinary Law Journal [Vol. 21:93

B. IS INCONGRUITY A MEASURE OF WORTH?

Having concluded that courts can capably and meaningfully identify

incongruous content, incongruity may seem a measure of whether a

putatively funny communication is either worthy of First Amendment

protection or should be otherwise disqualified from defamation liability.

Since incongruity is suggestive of humor, incongruity establishes some of a

communication’s positive social worth. Considering incongruity as a

definitive measure of social worth, however, would overstate incongruity’s

promise.

Implicit in the idea that a communication has positive social worth is

the conclusion that the communication’s contribution to social welfare is

greater than its damage to an individual plaintiff or group. Unfortunately,

one cannot accurately make such a broad claim for humor, given its

double-edged quality on matters of hurt.

On the positive side, humor allows dialogue in uncomfortable matters

to take place more easily. Through humor-studded communications, people

can converse about matters they may not otherwise broach. Truths can

sometimes be conveyed without the barbed quality accompanying

straightforward, unadorned insults.

324

Yet the opposite effect also frequently results. Incongruous humor is

perfectly capable of conveying a negative message. Given the mental

stimulation that incongruous humor inspires,

325

one can imagine that such

humor can be a potent vehicle for inflicting injury.

326

Likewise, empirical

studies suggest humor tinged with hostility can enhance aggressive

324. See, e.g., PALMER, supra note 113, at 61 (1994) (observing that humor can

“release the pressure of inhibition” while leaving in place inhibition’s function outside of

the humor context); Podlas, supra note 83, at 512 (arguing that humor lowers “emotional

(and intellectual) defenses, thereby avoiding resistance” of listeners).

325. See Carey, supra note 62 (reporting on studies supporting connection between

mental stimulation and such things as a “pink unicorn,” a “three dollar bill,” and a “nun with

a beard.”). But cf. Laura R. Bradford, Parody and Perception: Using Cognitive Research to

Expand Fair Use in Copyright, 46 B.C. L. REV. 705, 766–67 (2005) (arguing that legal

protection should vary according to “hierarchy” of cognitive “processing,” and observing

that the unconscious impact is greater for input for which there is less processing).

326. As Dr. Samuel Johnson observed, “[a]buse is not so dangerous when there is no

vehicle of wit . . . .” J

AMES BOSWELL, THE LIFE OF SAMUEL JOHNSON 1146 (Everyman’s

Library 1992) (1791). See also Fitzgerald, supra note198, at 14

(quoting Johnson and

explaining that “ridicule provokes amusement which emphasizes the underlying message”).

2011] Defamatory Humor and Incongruity’s Promise 163

tendencies,

327

damage potential social networks,

328

and camouflage

feelings, such as Schadenfreude.

329

These competing forces counsel against extravagant claims about

incongruity’s merit. Nonetheless, incongruity plays an important role in

signaling courts that they have strong reason to believe they are considering

humor and, thus, something worthy of protecting.

V. CONCLUSION

As part of the machinery of constitutional democracy, United States

courts constantly handle clashes of important values. The constitutional

doctrine they have developed for evaluating these clashes is far from

perfect, but it is usually viable and well meaning. United States defamation

law negotiates the clash between reputation and free expression with much

the same success as other legal rules that confront a delicate balance, such

as state criminal procedure rules, economic rules, and health care

regulations. In the process of negotiating competing values, courts should

avoid ritualistic incantations of constitutional doctrine without considering

what they are trying to achieve. Courts must explicitly consider the values

sacrificed and served by choosing a particular disposition.

United States courts risk ignoring important concerns when they

become seduced by the apparent determinacy of the fact/opinion

distinction. While the distinction does a proficient job of incorporating

relevant concerns, it can obscure important values related to reputation and

humorous expression. Given the particular importance of free expression in

general and humor in particular, reputational concerns will often yield to

other values in defamatory humor cases. But why cling so dogmatically to

our sense of First Amendment exceptionalism? Americans should feel

proud of our heritage in the free speech arena, but that should not stop us

from learning from others—such as Australians—who strike a different

balance for competing values.

327. Robert A. Baron, Aggression-Inhibiting Influence of Sexual Humor, 36 J.

PERSONALITY & SOC. PSYCHOL. 189, 190 (1978) (discussing possible connection between

aggression and humor).

328. Martin, supra note 89, at 16 (suggesting that negative humor can damage

“potential social support”).

329. Dolf Zillman & Jennings Bryant, Misattribution Theory of Tendentious Humor,

16 J. EXPERIMENTAL SOC. PSYCHOL. 146, 150 (1980) (suggesting that disparagement humor

can cover up hostility or Schadenfreude).

164 Southern California Interdisciplinary Law Journal [Vol. 21:93