Laughing Matters in Courts: Humor’s Role in Normalizing Hate Speech

Abstract

Humor is a form of speech capable of boosting the political value of a speech’s content or even reversing its meaning. Courts acknowledge these qualities by considering that an expression may enjoy an elevated level of free speech protection against government sanctions or private suits if it is formulated in a humorous way. This article spotlights another key attribute of humor, that is perhaps more consequential for the socio-political impact of an expression but that nonetheless does not seem to be invoked in free speech litigation: its power to increase the exposure of the speech. A humorous presentation of an idea offers its audience an entertaining form that is desirable to consume independently of the message it conveys. It lowers the costs of processing irrelevant or objectionable content and so bears the potential of catching the attention of those who would not otherwise be exposed to it. I argue that the capacity of humor to “raise the volume” of speech must be accounted for in the balancing formulas of constitutional and international free speech litigation. To underline the importance of this factor, I focus on cases of hate speech, a category where humor plays a decisive role in the outreach to audiences that do not always share the prejudice or intolerance of the speaker. This article analyzes the case law of the European Court of Human Rights (ECtHR) and of French courts as an example of the general disregard of courts for humor’s amplification of hate speech. The far-reaching damage potential of this disregard is demonstrated on the case of Dieudonné, a notorious French antisemitic comic who has masterfully exploited humor to expose large audiences to hateful content.