The limits of dark humour and freedom of expression

The limits of dark humour and freedom of expression

Who decides the limits of a joke? At some point or another, everyone has laughed at a dark joke. Dark humour is a style of comedy that pushes the envelope, finds the barriers in society and can often leave the audience laughing while simultaneously wondering if they should have laughed or not.

Many comedians are famous for this style of humour, from George Carlin to Ricky Gervais and Jimmy Carr. The style often involves observations about humanity and the things many people may have thought in the back of their minds but never said out loud. For example, Louis CK’s series of jokes “of course… but maybe” captures dark humour in a nutshell. It is about the competition in our brain between the good things and bad things. As Louis CK puts it, “there’s the good thing, the thing you believe, and another thing which maybe you don’t believe… but it’s there.”

These jokes unsettle us and can make us laugh, but sometimes they go too far. What then?

In a normal world, it means the comedian doesn’t tell the joke again. A joke that bombs because it is too painful or cruel means the audience doesn’t laugh. And if the audience does laugh at a painful joke, perhaps it reveals something about ourselves and about society. This is the power of comedy.

There should be no question though, that it is the audience and not the government that sets the limits on comedy. But unfortunately, the government of Quebec has taken on this role. In 2016, Quebec comedian Mike Ward was ordered to pay $37,000 in damages to the subject of a series of jokes he told between 2010 and 2013. And on February 15 of this year, Mr. Ward’s case was argued at the Supreme Court.

Mr. Ward specializes in dark humour. The jokes that led to the fines were about the “sacred cows” of Quebec. People who because of their fame, power or because of sympathy were considered untouchable by comedians. One of the targets of his jokes was a boy named Jeremy Gabriel, a young disabled singer. Ward made jokes about Gabriel’s appearance, his disability and his singing talent, and joked about drowning him.

Like many dark jokes, Ward’s jokes were cruel and unsettling. When they were described in the Supreme Court, the jokes were without doubt unfunny and vicious. But that isn’t the standard by which we judge jokes – it is unlikely very many transcripts of jokes would still be funny when read in court. The government and courts are poor arbiters of humour.

The rub is that there is also no doubt that the jokes hurt young Mr. Gabriel, who was repeatedly bullied at school because of these cruel jokes, to the point where he became suicidal. This is tragic and is incredibly sympathetic. There is a strong public desire for Mr. Gabriel to have some recourse against an adult who targeted him and caused him tremendous suffering. In this context, it’s also hard to feel bad for Mr. Ward. Comedy shouldn’t be about the powerful attacking the powerless.

But in a free and democratic society, recourse for this situation does not lay with the government. It lays in private law remedies, like a claim of defamation, or perhaps the newly created tort of online harassment.

Allowing the Quebec government to set the limits on comedy through fines creates a chilling effect for other performers in the province and is an undue limit on the right to freedom of expression. Speech, even controversial or repugnant speech, is protected from unjustified state intrusion. And even if Mr. Ward’s comedy routine was distasteful, it should not be policed by the government. Like all comedy, it should be policed by audiences.

Image by Lisa Gansky and used under CC 2.0. This article is free for republication.