• 07 August 2009

Regulating Funny: Humor and the Law

Laura E. Little - Temple University Beasley School of Law

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Chuck makes a joke.  The joke hurts Gladys, who complains, “That’s not funny!”  If Gladys presses her view, ascribing blame and demanding redress, a court matches her hurt with rules of law.  Carried to its logical conclusion, this legal process regulates Chuck’s joke, sending a message about whether society likes his humor.  The law can regulate Chuck’s joke in wildly varying ways.  Depending on context, the law may insulate, tolerate, encourage, condemn, or suppress Chuck’s humor.1 To resolve the controversy between Chuck and Gladys, a court may even need to determine whether it agrees that Chuck’s joke is—indeed—not funny.

The stakes are high here.  To begin, where humor is stifled, the First Amendment hangs in the balance.  Most potentially humorous utterances are actionable precisely because of their content, a key trigger for First Amendment protection.  To a limited extent, scholars have explored this ramification of humor regulation, particularly in the context of sexual harassment litigation.  Yet even leaving aside core First Amendment values, regulating humor implicates other important concerns nowhere discussed in case law or legal scholarship.  Philosophers, literary theorists, natural scientists, and social scientists have long documented beneficial qualities from humor, benefits as wide ranging as pain relief, social cohesion, and creativity.  One might expect the law to protect such socially beneficial activity.  That’s not to say that humor doesn’t have its downsides.  At the least, though, the law might distinguish situations where humor fosters good from those where humor produces negative effects.  Yet only on rare occasion do courts speak explicitly of their decisions’ effect on humor.  They need greater awareness of the law’s regulatory effect on humor.

 
I.
How Courts Regulate Humor: A Taxonomy

Humor occurs in most aspects of human life and, accordingly, appears in a wide variety of legal contexts.  A look at three diverse legal subjects—contracts, trademark, and employment discrimination—yields a rough taxonomy.  As a starting point, the case law divides into two groups: (1) instances when the court’s decision to regulate turns on whether the disputed communication is humorous and (2) those when the court regulates the communication irrespective of whether it is funny.

Take the joke between Chuck and Gladys.  In the first category of cases, courts actually engage the question whether Chuck’s communication was indeed a joke.  When the answer is “yes, Chuck made a joke,” these cases explicitly remove the communication from legal restriction—thereby protecting it from civil liability.  Chuck might avoid liability, for example, if a court decides that Chuck’s statement to Gladys was no more than a drunken jest about selling her his car, simply a joke rather than a legally enforceable contract.  The court’s decision allows the joke (and others like it) to thrive, unfettered by legal obligations.  This analysis also occurs in trademark litigation, where courts in essence conclude that the level of jest is so high that no harm to an intellectual property interest occurs.

It may sound fishy or wrong for courts to make an editorial judgment about whether something is humorous.  Remarkably, though, the cases are often straightforward, tracking formalistic legal analysis.  The humor-regulating enterprise becomes more problematic, however, in the second category of humor regulation, when courts impose liability regardless of whether the communication is funny.  In this category, courts instead focus on whether the communication is sufficiently hurtful as to justify stifling it.  Examples of this category are common in employment cases involving sexual harassment and occasionally occur in trademark cases.  Functionalism and indeterminancy abound in these opinions; they are riddled with inconsistencies and irrationalities, qualities common when courts struggle to make difficult choices between competing alternatives.

 
II.
Case Law Tracks Humor Theory

One remarkable quality of humor-regulating opinions is their faithful (yet tacit) tracking of humor theory espoused by non-legal thinkers.  Humor theory provides a scholarly grounding for the dichotomy between humorous communications that avoid liability and those that do not.  Humor theory traditionally distinguishes three broad categories of humor: (1) incongruity humor, (2) superiority humor, and (3) release humor.  The “funny” in incongruity humor comes from the juxtaposition of two incongruous or inconsistent phenomena.2 Superiority humor, by contrast, seeks amusement through a communication that makes one person feel successful at the expense of others.  Release humor taps into repressed sources of pleasure, pressure, or anxiety, focusing on taboo or difficult topics such as sex, excretion, or death.  As it turns out, cases evaluating whether a particular communication is a liability-avoiding joke test whether the joke reflects “incongruity” humor.  On the other hand, cases regulating a jest act in those instances where the jest reflects what scholars would call “superiority” and “release” humor.

Thus—in all three doctrinal areas (contracts, trademark infringement, and employment discrimination)—courts are more likely to protect the same type of humor: incongruity humor.  In other words, incongruous humor tends to avoid law’s grip, while superiority humor or release humor triggers legal control.  In addition, courts in all three areas tend to integrate scholarly definitions of parody and satire uniformly to afford puns favored status.

What’s the explanation for this overlap between humor scholarship and case law?  Could it be erudition of the judiciary?  Or is it dumb luck?  Common sense?

I vote for common sense.  But common sense has many faces in the context of humor.  I count at least three: common sense grounded in logic, humor’s intrinsic qualities, and social norms.  The logical foundation of common sense derives from the societal context in which courts create legal definitions of claims and defenses.  Intrinsic meaning refers to the proposition that truly funny utterances may tap into humor receptors found within all human psyches.  Social norms in this context are shared cultural preferences about humor.

The logical explanation for consistency in humor regulation derives from the analytical connections between legal requirements (such as the definition of a cause of action) and humor scholarship.  Take for example sexual harassment law’s focus on regulating superiority humor.  Sexual harassment law is—at least in part—a species of the law of wrongs, designed to impose liability in order to remedy a personal injury.  The decision to regulate depictions of an individual as inferior (whether funny or not) is hardly surprising, given civil law’s function of imposing liability to remedy an injury.  Since advanced human society seeks to reduce conflict, law has a mechanism for discouraging hurtful behavior that might promote conflict.  As citizens sharing the same human society as lawmakers, non-legal academics also focus on humor with conflict-creating potential, expending considerable effort to explain it.  Accordingly, they have refined a theory of superiority humor with analytical kinship with another human context—legal regulation.  Sexual harassment regulation is but one example where the overlap of law and humor scholarship derives from the simple fact that both endeavors concern humanity.

The second possible face of common sense—the intrinsic quality of humor—is more contestable.  Many suggest that no consensus definition of humor exists because a person’s perception of humor is largely intuitive, defying precise description.  To the extent that this intuition results from an inherent human quality (something one might call a “funny bone”), one could argue that legal regulators and humor theorists are simply operating with the same hard-wired, intrinsic understanding of how humor operates.  Under this view, incongruity humor arguably stimulates this shared funny bone more effectively than any other type of humor.  Proof of such a funny bone, however, has so far eluded cognitive scientists and other humor theorists.

Common sense’s third face—social norms—is likely the most important, since its explanatory potential survives regardless of whether one proposes that humor is constructed entirely from contingent social perceptions or believes that every human psyche harbors an inherent funny bone waiting for stimulation.  Understanding of social norms suggests that both legal thinkers and humor theorists prefer the same types of humor because humor appreciation is imbued with cultural preferences that the two groups happen to share.

The law’s integration of social norms about appropriate humor is cause for both celebration and concern.  First, the good news.

 
III.
Law and Social Norms: Cause for Celebration

For humor theory, social notions of appropriate behavior inform the structure and definitions theorists emboss on different forms of humor.  Understanding how these theories are reflected in law yields greater appreciation for what courts and other regulators are accomplishing.  The theories also provide guidance to lawyers who need to predict how courts might resolve a controversy, to understand existing case law, and to gather raw material for advocacy.  Similarly, a court evaluating whether to protect a particular communication (and wishing to avoid reversal on appeal) may usefully inquire whether the communication reflects incongruity, superiority, or release humor, or other categories identified by humor theorists.  Where the humor categories clearly guide litigants, attorneys, and courts in the course of dispatching life’s duties, humor regulation becomes an instance where legal rules—through the sometimes hapless machinery of the common law—can produce effective and efficient results.

That’s the good news for lawyers, judges, and those subject to legal regulation (i.e., everyone).  Self-conscious evaluation of potential humor regulation in light of humor theories promises to guide decision-makers choosing among alternatives.  What’s more, the confluence between law and humor theory announces equally upbeat news for humor theorists—illustrating how a human institution (the American legal system) validates the relevance and accuracy of humor research from social sciences, humanities, and natural sciences.  Moreover, to the extent that humor scholars identify individual and social benefits of incongruity humor, one might even say that the law’s special solitude for that brand of humor reinforces those beneficial effects.

 
IV.
Law and Social Norms: Cause for Concern

Alas, I am not entirely sanguine: the potential salutary effects of humor theory’s overlap with legal regulation are only part of the story.  As a normative matter, I question whether traces of the three humor theories in American law predict the best future for humor regulation.  For one thing, the burgeoning humor literature and nuanced theories that now provide usual fare for humor theorists suggest that more refined analysis awaits law’s use.  Moreover, even assuming that the tripartite humor scheme were the current “gold standard,” the law should not necessarily always favor incongruity humor and disfavor the two others.  The tripartite scheme does not restrict courts to the boundaries of general social norms.  Instead, regulating humor casts courts in the business of monitoring taste, a perilous enterprise in a free society—particularly when done unconsciously.  While thoughtful use of the three theories might guide courts in making difficult choices and assist lawyers in providing advice and predicting litigation outcome, humor embodies complexities beyond the theories’ reach and courts’ understanding.  Humor both reflects and perpetuates complex power dynamics that are difficult to predict and dangerous to regulate.

 
V.
Regulating Taste

By “taste,” I mean a sense of decorum for what is appropriate in a given context—informed by personal preference as well as community standards.  While the line between taste and social norms is blurred, my discussion here confines taste to evaluating whether an expression is proper or fitting to an occasion.  To inform her judgment about taste, a judge need not confine herself to broadly held norms.  Thus, many problems arise from taste regulation.  First, a court may apply a standard of taste that deviates from mainstream or consensus views.  Mainstream views may be difficult to identify and subject to varying interpretation; indeed, the striking indeterminacy in the trademark cases suggests difficulties in identifying a uniform standard of propriety.  A second, related problem is the strong likelihood in a pluralist society that tastes differ across social strata and that courts systematically prefer one social class’s tastes over another.  Courts’ preference for incongruity humor might be symptomatic of this—with courts identifying incongruity with “wit,” a form of humor long associated with privileged upper classes.  Even where courts might identify a high degree of social consensus to condemn particular humor, prudence counsels them to hesitate before transforming condemnation into law.  Even a universally detested utterance should not necessarily be held illegal.

Creating legal rules through litigation may also unintentionally suppress humor that promises individual and social benefits.  When courts enter judgments adjudicating specific parties’ rights, they also send a warning to others considering similar activities.  Responding to this message of deterrence, citizens may overreact, allowing for an unnecessarily large buffer between their own activity and activity specifically proscribed by legal rule.  The law’s regulatory effect is thus broader than the letter of the law.  Whether evaluating the wisdom of an advertising campaign, creating a parody of a protected trademark, or drafting corporate sexual harassment policies, decision-makers labor under the weight of risk aversion and difficulties in distinguishing lawful and lawless humor.

 
VI.
Humor’s Complexity Creates Heightened Regulatory Challenges

As trumpeted in First Amendment rhetoric, regulation of expression risks muting outlying values and tastes, which society might beneficially evaluate and debate.  Through the process of legal compliance, mainstream ideas are privileged at the expense of those closer to the fringe.  Although fringe or unpopular ideas might support beneficial social norms—or at least act as a clarifying foil for them—the ideas remain unexpressed and beneficial norms are consequently less vibrant.  Reducing the array of goods available in the market place, the theory holds, harms beneficial norms and ideas that are expressed.

For hurtful communication such as that regulated in contract, trademark, and sexual harassment litigation, the answer is not necessarily a complete moratorium on regulation by law in favor of regulation by the marketplace of ideas.  The reason lies in humor’s paradoxical capacity to inflict deep pain and to promote individual and collective benefit.  Humor can be simultaneously confining and liberating, emotional and cerebral, as well as loving and aggressive.  In the context of discrimination, for example, humor can challenge stereotypes, shed insight into prejudice, and at the same time solidify pejorative impressions.

Humor’s bipolar nature creates a puzzling dynamic for legal regulators concerned with compensating hurt, increasing efficiency, and preventing harm.  On one hand, these aims counsel regulators to be particularly watchful of humor’s aggressive side.  Yet this aggressive quality also enables humor to serve its own important policing functions.  This policing capacity comes from humor’s pugnacious side, which enables humor to push boundaries and question conventional wisdom.  Regulators thus face a dilemma, since the same quality that makes humor useful to society also makes it capable of significant harm.

One response to this dilemma posits that humor operates as its own check, providing a system of self-regulation that counsels a hands-off approach to legal regulation.  As is usually the case with humor, however, this ready answer is over-simplistic.  Humor’s self-regulating quality operates as a rolling dialectic, a prism of reflections and contradictions that creates shifting groups of insiders and outsiders.  While insiders might use humor to belittle outsiders, outsiders might deploy humor to challenge social hierarchy.  This outsider humor can make fun of the conventional, critiquing collective judgments as well as mocking mainstream norms and behaviors.  When a group appreciates this mockery and shares in the laughter and fun, the humor starts to create a new community of insiders.  But when subsequently redeployed to the exclusion of others, the humor creates a new group of outsiders—those who either personally serve as the “butt” of the jokes, who do not think the jokes are funny, or who are members of the group that the jokes mock.

One might conclude that legal regulation is not only incapable of controlling this fluctuating power balance, but also unnecessary given the self-regulating system.  Yet even if this were hypothetically true on an aggregate or meta-level, a hands-off approach is not justified.  Courts must respond to complaints of real harm to individual people.  In addition, humor’s mysterious nature undermines any guarantee that the dialectic operates so elegantly or effectively.  Outsiders might not always succeed in harnessing humor’s force to challenge power relations in society.  What is “funny” coming from a powerful person is not always “funny” coming from the disempowered.  Thus, while in many instances, the natural oscillation between negative and positive humor might perform important checking functions, humor alone cannot be trusted to avoid the type of serious personal harm for which courts generally deploy their resources.  Thus, despite humor’s elusive and complex nature, regulation is necessary.

Humor presents a remarkable case study in the brilliance and foibles of the common law system.  Through the lens of contract, trademark, and sexual harassment cases, we see courts fumbling their way to the same wisdom that humor theorists took centuries to develop.  Thus, preferences for incongruity humor, penalties for release and superiority humor, as well as celebrations of parody and protections for puns are now well established in legal doctrine.  And all this occurs while courts engage in the important governmental function of tailoring remedies for individual harms and signaling rules for all citizens to fashion their behavior.  Yet this apparently spontaneous confluence of humor theory and law also creates an opportunity for grave harm to society—with court decisions stifling a host of beneficial forces.  Creativity, self-regulation in social relations, and personal pleasure in comedy are only a few of the benefits that courts might undermine.

The question then becomes how to chart a balance: how do we guide courts to interfere only where humor becomes too hateful, too superior, too inane, or too foul to regulate social ills or to bestow benefit on anyone?  Thankfully, at least three important bodies of knowledge stand ready to assist.  First, a rich literature of law and social norm theory awaits further mining.  Next is the vast library of First Amendment studies.  These two bodies of work, however, cannot alone inform the task of understanding humor’s sources, internal functions, and effects in society.  Only with the help of the humor theorists can courts successfully navigate humor’s mysteries as they dispatch their duty to regulate “funny.”dingbat

 

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Laura E. Little is Professor of Law and James E. Beasley Chair in Law at Temple University Beasley School of Law.

This Legal Workshop Editorial is based on the following Article:   Laura E. Little, Regulating Funny: Humor and the Law, 94 CORNELL L. REV. 1234 (2009).

  1. So what’s the deal with the names? Comic wisdom has it that certain names and sounds are funnier than others. “Gladys,” “Chuck,” and words beginning with hard consonant sounds are some of the funniest ones. See Tad Friend, What’s So Funny? THE NEW YORKER, Nov. 11, 2002, at 78, 90.
  2. Consider the following example in which incongruity arises from the joke suddenly deviates from the information contained in the foundation, or “set up,” for the humor—such as in the following: “O’Riley was on trial for armed robbery. The jury came out and announced, ‘Not guilty.’ ‘Wonderful,’ said O’Riley, ‘does that mean I can keep the money?’” ROD A. MARTIN, THE PSYCHOLOGY OF HUMOR 63 (Elsevier Academic Press 2007) (quoting J.M. Suls, “A Two-Stage Model for Appreciation of Jokes and Cartoons: An Information-Processing Analysis,” in J.H. GOLDSTEIN & P.E. MCGHEE, THE PSYCHOLOGY OF HUMOR: THEORETICAL AND EMPIRICAL ISSUES 81-100 (Academic Press 1972)). The “set up” for this joke suggests that, having been acquitted of armed robbery, O’Riley would not be inclined to admit to the crime. Hence O’Riley’s admission comes as a surprise. The incongruity acts as a form of inversion or role reversal, where characters appear in one situation, and then take on a different persona.

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