Comedy at the Boundaries... aka "Comedy"

On Friday I included a link to Timothy Bella's piece on George Carlin's "7 Dirty Words."  Bella's piece is much better than this post will likely be, so be sure to read it, but I just want to highlight a couple of things about it I found interesting. Bella's point is that profanity finds the cracks and crevices laws always end up leaving. By filling in these spaces between free speech and obscenity, between liberty and the ability to protect kids from what we believe they ought not to hear, profanity highlights the growing tension between obscenity laws as written and interpreted (institutional mechanisms recalcitrant to change) and our evolving social sensibilities about swearing.

This is a point I would love to be making in a post rather than repeating it, but instead I want to prod the role of comedy in finding boundaries more generally. Comedy helps us find the absurd and the ridiculous and - done properly - see the humor even in situations that aren't themselves funny. So-called black comedies or gallows humor can be wonderful coping mechanisms for otherwise dire situations. Even gross-out comedy finds the boundary that demarcates "the disgusting" - though I doubt they often have so esoteric a goal as their primary mission. I'm not quite prepared to make cultural critics of these guys

The role comedy plays in figuring out where funny becomes macabre becomes simply disturbing exists in the very way we talk about jokes. What line exists between a joke that makes you smile but shake your head - maybe utter an "oh, man" - and one that darkens your face and has you simply say "too far?" Jokes that go "over the line" have not simply prodded the boundary between macabre/disturbing, silly/disgusting, sarcastic/cruel, coping/insensitive, but crossed it. Comedy and its close relative irony have the twin abilities to look at something from the outside (seeing its foibles more clearly) and to find out what boundaries construct the outside/inside distinction in the first place. One of English's greatest ironists, Jane Austen

is by no coincidence also one if its funniest. Austen was such a brilliant chronicler of her society precisely because she was able to see the boundaries of acceptable behavior from an ironic outsider's position. Though certainly a member of the culture, Austen didn't quite fit. A strong, single woman in a culture that told women to marry and demur, Austen clearly loved her characters, but to paraphrase Allan Bloom, one never feels that she envies them. Her perspective as a relative outsider is what stakes her ability to see the social boundaries she exploits to such hilarious comic effect.

Almost all of our greatest comedians are outsiders of one stripe or another, on the minority side of black/white, male/female, jew/gentile, poor/privileged, gay/straight. Think about it.




Often they're on the outside of more than one of those boundaries.

Forget about the legal aspects of obscenity for a minute, and think about the social reaction to George Carlin's "7 Dirty Words."In 1939, Clark Gable could raise eyebrows - even his immaculate ones -

just by saying "damn." This, obviously, no longer ruffles anyone's feathers. But even among the seven words Carlin highlighted, we don't treat all of them the same way we did when he first uttered them onstage. "Piss," for example, and "tits" don't carry the same shock value as they once did. Honestly, I was surprised to read in Bella's piece that you still can't say them on network TV. I mean, I wouldn't say them in front of my kid cousins (boundary) or to my parents (boundary), but most other places they won't phase anyone. Don't even have to say "earmuffs."

On the other hand, another of the seven words, a four-letter one starting with "c," I don't even really want to type. That one has retained the power to shock, to insult, to disrupt. I don't want to throw out a half-cocked theory as to why that is - happy to hear ideas, though - but just want to suggest that the difference in how we treat those two stems from boundaries that have shifted differently.

When we shift like that, comedy has to shift with it. By way of trying to put a neat bow on this post, let me just say that comedy and law share this in common. Each has a variable relationship with the informal rules and norms that make up our everyday, each is forced to shift its own boundaries when society shifts its. Comedy, though, has at least one big advantage. Law finds its tension with society in conflict: either political conflict or with arrests - say the several times George Carlin got arrested. Comedy, on the other hand, finds the tension with laughter. Most days, I'll take the latter.

Weekly Round-Up for May 25th

Michigan's own Katie Gilbert, Jill Horwitz, and Helen Levy want us to be better informed about healthcare economics and the Court, so read their article!

Timothy Bella takes a look at how the law has evolved as George Carlin's "7 Dirty Words" turns 40.

Brian Palmer writes about Dharun Ravi and "good behavior."

Emily Bazelon reports on a judge's decision in favor of the school officials at the center of the documentary Bully. 

David Wiegel explains those who have leapt to George Zimmerman's defense. 

Over at Salon, Joan Walsh says even if it took longer than she'd hoped, we should give the President credit for leading on gay marriage. 

Andy Cohen tells the story of Judy Shepard (Matthew's mother) and her effect on Obama's decision. 

And Ta-Nehisi Coates says black voters are "evolving" on the issue, too. 

Alex Seitz-Wald reports on Sen. Roy Blunt's support of "Obamacare."

Tom Englehart takes Memorial Day as an opportunity to take a look at our amnesia when it comes to past bloodshed. 

Justin McCurry explains how Mickey Mouse is leading the charge for gay rights in Japan. Yes, you read that right. 

At the Chronicle of Higher Ed, Eric Kelderman explains a federal court's decision to take a new look at fraud allegations against Rush U. Medical Center. 

Adan Liptak at the Times reports on the Supreme Court's decision to allow a retrial over objections that the circumstances make it a Double Jeopardy Violation. 

Eduardo Saverin and the Art of Discretion

It's an open question: will Facebook co-founder (or whatever) Eduardo Saverin be allowed back in the United States? For those of you who haven't followed the story, Saverin renounced his American citizenship recently - and in what I'm sure is pure, random coincidence, he did this right before a Facebook IPO that dramatically increased his paper net-worth. By so doing, Saverin avoids a hefty US tax burden (his new country of Singapore will tax him at half the rate). However, the IRS retains the option (I underline this because it will become important as this post develops) to severely limit Saverin's ability to come back to the United States. 
What's interesting to me isn't necessarily the fairness of his using the loophole, or the how we should feel about his taking advantage of US citizenship to found and grow an enormously profitable company and establish a massive personal fortune before skipping out on the bill. What interests me is that the IRS can limit his ability to come back, but it doesn't have to. It has discretion to do what it sees fit in this situation.

This got me thinking about what legal discretion really is. Its best known facade is prosecutorial discretion: the ability for a prosecutor to decide whether or not to bring charges, which charges to bring, whether to plea bargain, what to plea bargain to, and even whether or not to push for the death penalty. These are all decisions that we leave up to elected or appointed prosecutors rather than inscribe them in the law. We also defer to government agencies as to the best ways for them to achieve their statutorily defined responsibilities (ask a law student about Chevron and then do the two-year-old thing and keep asking why; see how long it takes them to hug their knees and start rocking back and forth).

Discretion serves any number of functions, but I don't really want to dive too deeply into that right now. Instead, I'll ask again what is legal discretion? For my purposes today, I'm going to work with something like this: it's a space created by rules in which one doesn't have to follow rules (or at least has to follow fewer rules).

As you probably know by this point - at least if you're a regular reader - what most interests me are times when informal norms or rules supplement, effect, or even totally supplant the official rules that purportedly govern us. In situations like this, the official rules themselves create a void into which those informal norms can step. It isn't that there happens to exist a gap between the rules that gets filled in by happenstance, it's that the law consciously creates a space and tells those within it that they should do what they want; the law will no longer instruct them (yes, I acknowledge "consciously" as a potentially inappropriate anthropomorphism).

So what steps in in the place of law? It can be any number of things, and it goes without saying perhaps that they overlap substantially. Let's imagine, for example, a prosecutor deciding whether or not to ask for the death penalty. It's clear that her personal beliefs about the death penalty and its application in this situations will weigh on her decision, as will local norms about the death penalty. Political considerations certainly weigh in - how many stories have we read about zealous prosecutors wanting to seem tough on crime? - but the overlap those considerations have with local norms is considerable. The point is that we have a situation where the law has actually invited these other considerations into the fray.

It occurs to me that these spaces are - unsurprisingly - a theme to this blog. Since my goal is to talk about the ways in which our informal norms, rules, and institutions influence the formal ones, the fact that the post on the NFL, the post on Trayvon Martin, and the post on violence in the shadow of the law all deal with spaces the law creates but that are defined by its absence. Our culture finds cracks in the law in other places - like water, it sneaks its way into any crevice it finds - but I think its noteworthy when its invited in, rather than sneaking in through the back door.

Weekly Round-Up for May 18th

The stories this week that caught my eye:

The Root calls out the NRA to speak up on Marissa Alexander's right to defend herself by firing a handgun. 

Emily Bazelon writes that courts are too easy on female teachers who sexually abuse their male students. 

David Wiegel reports on the dwindling anti-gay movement's involvement with black churches. 

Amanda Marcotte notes that churches' anti-gay stances are costing them young congregants. 

And Aisha Moodie-Mills explains Barack Obama's role at the center of that nexus. 

Richard Hasen says we shouldn't read too much into a lower court's decision urging more campaign transparency. 

Richard Hasen also says Souter should publish is "secret" Citizens United dissent. 

Dahlia Lithwick reports on Virginia's disgraceful failure to confirm a judicial nominee simply because he is gay.

Sarah Posner reports that congressional conservatives are exploring new ways to discriminate against gays in the military. 

Glenn Greenwald explains a court's decision that indefinite detention under the NDAA is a violation of the 1st and 5th Amendments. 

Julianne Hing explains how a mother who just wanted her kids to go to a safer school ended up in jail. 

Law and Society at the Altar

It seems that the President, perhaps prompted by Crazy Ol' Joe Biden, has revised his stance on gay marriage. Perhaps you heard something about this. As is often the case, I'm stuck between feeling like it would be foolish not to write anything about this, and worrying that I can't find something to say that hasn't already been said by someone else - and probably said better. There are, however, a few points worth making about the interrelationships between law and society that come to a head in the debate on marriage. Even if some of them aren't new or groundbreaking, I think they're worth putting on the table. If only because we need fewer people saying mind numbingly stupid things like allowing gay marriage means there's no principled reason to prevent someone from marrying a goat, or ice cream. 

[Before moving on, a note to Dr. Daniel Heimbach, picture above: have you ever been able to enter a non-marital contract with a goat or an ice cream cone? That's what I thought.]

The Marital Relationship is Contingent, Variable, and Constructed

It has meant different things at different times to different people in different societies. Marriage was primarily a tool for consolidating political power for much of history. Have a daughter and a territory you would like to annex? Marry her off to someone in that family with a large dowry in exchange for political control. Done. It's what allowed the Hapsburgs to control much of Europe while fighting a surprisingly low number of actual wars (though, yes, they did that too). And yes, I cede the irony of having marital coupling be the primary political tool of people who looked like this:

Spain's Charles II, as you can see, was not a looker. But I seem to have digressed. The point was that marriage is NOT, as certain critics would have you believe, an ancient institution that has always been considered the union of one man and one woman for procreative purposes. It has not infrequently been the union of one man and one woman for economic or political purposes, the union of one man and one woman with many other women on the side for procreative and, let's face it, recreational purposes. It has, for most of our particular legal history (English common law), been not so much the union of one man and one woman as the eradication of a woman's legal identity and the subsuming of her legal person under the aegis of the mans. 

Upon marriage, a woman ceased to be her own person in the eyes of the law. This practice - known as coverture - was old hat when Blackstone wrote in the 1700s and wasn't really eradicated in the United States until the late 19th/early 20th century. So, even in the narrow context of American history, marriage isn't historically any one thing. Until about 100-120 years ago, it was the assimilation of a woman's identity into a man's (which is a slightly nicer way of saying the eradication of her legal identity). It was about property, patriarchy, and economics, and of course about procreation. 

I could go on. Plural marriages have been "normal" in one form or another in western culture from Biblical history to the present. In fact, as a bit of an aside, the biblical story about Onan that is most often associated with an injunction against... let's say "self-pleasuring," isn't really about that at all. It's about Onan's failure to perpetuate the family line by impregnating his dead brother's widow. That used to be required as a part of marital practice, but I suspect it would raise some eyebrows on the Beltway these days. Societies have constituted differing facades of marriage - and differing legal treatments thereof - over and over throughout history. 

The point is that to say marriage is a concept that transcends historical pressures and vagaries is simply wrong. It has been as flexible a social institution as any, and limiting it to one particular "normal" isn't just myopic and stubborn, it's incorrect. 

Traditional Reasons for State Intervention Have Eroded

State regulation of married/intimate life rests on what's known as "police power;" that is, the state's need/right to regulate society for its own health, safety, and morals. Before, say, the 1960's

there were two factors that made this at least a defensible connection. The first was societal: prior to the sexual revolution, we as a society constructed the marital bed as the only site of licit sexual practice. Now, there was obviously lots of sex had outside the confines of the marital relationship (isn't that right, Mr. Ambassador?)

but that's where we decided that acceptable sex was to be had. Part of this was a societal need for the "legitimacy" of children; we wanted to know that a child was the offspring of a particular (married) couple. Because there were no reliable means of birth control until pretty late in the game, controlling parentage meant confining acceptable sexual relationships to marital sexual relationships. 

But two intertwined changes over the last fifty years have wiped this almost totally off the face of the map. It's impossible to say what the relationship between the two is, so I'll just go for it. First, we no longer think that "acceptable" sex is necessarily in the context of a martial relationship. In the aftermath of the Sexual Revolution, we can take lovers and bedmates in a far wider range of scenarios than we used to, and without fear of being social ostracism.

[N.B.: Yes, there are still sexual politics surrounding male-female relationships, double standards, "slut-shaming," (which only happens to women), etc., etc. The point isn't that we've ceased to treat men and women differently, but that we've expanded the definition of licit sex for both sexes.]

Simultaneously, the technological advancements in birth control have erased the necessary connection between sex and reproduction. It is no longer true that a sexual relationship is likely, over the course of not that much time, to become a familial relationship. This obviously reinforces (and is reinforced by) the social expansion of acceptable sexuality. 

Relatedly, our laws have evolved over the last fifty years to largely remove morality as a justification for state intervention. The Supreme Court struck down laws against contraception for married couples (Griswold v Connecticut), and unmarried couples (Eisenstadt v Baird), has struck down anti-abortion statutes (Roe v Wade; Planned Parenthood v Casey), and most recently has struck down laws banning sodomy (Lawrence v Texas). In Lawrence, though, it's possible we saw a new turn. 

Griswold, Eisenstad, Roe, and a host of other, older cases, rely on the concept of privacy. "Private" behavior is at least consistent with the idea that we want to regulate or outlaw it, but simply can't because it's beyond our power. Lawrence, however, emphasizes "liberty" far more than "privacy," which could signal a move to a more libertarian social sentiment. If so, it may be more that we don't want to regulate intimate behavior; Kennedy's opinion explicitly says that - by itself - moral disapproval isn't a good enough reason to outlaw something. 

So, with procreation de-coupled from sex, sex de-coupled (ha!) from marriage, and morality allegedly out as a legal justification, it seems we no longer have particularly good reasons to under-gird state regulation of the marital relationship. So... what are we still doing?

Incrementalism v. Civil Rights

Again, I could go on, and any pollster or politico will tell you that the gay marriage fight - though it rages on - is only matter of time. As a pure matter of demographic shift, it will happen. The conversation this week, however, has been on the one hand President Obama's Federalist argument that this is best resolved on a state-by-state basis, and on the other the very reasonable point that if marriage is a civil right, you don't get to vote on it. My apologies to the Rachel Maddow meme. 

There is a good argument, though, to be made for the state-by-state incrementalist approach. Think about what abortion has meant in the almost 40 years since Roe. A one-size-fits-all judicial fiat didn't end the fight; it threw gasoline on the fire. It's still a hot button wedge issue. Compare this with the point I made a month ago about Rickey, Robinson, and the Supreme Court's end of desegregation. The Court did wait until the nation's polling indicated readiness of desegregation, but the Civil Rights Act of 1964 fractured the democratic party, which only won a single Presidential election between 1964 and 1992. 

Even when something is inevitable, even when it's right, pushing for it too early can set back the cause. This is why gay rights organizations were wary - at best - about the Boies/Olsen led lawsuit to overturn California's Prop 8 (last seen winning a narrowly tailored victory at the Ninth Circuit; stay tuned).

I don't know how long it will take for gay marriage to gain nationwide acceptance, but I'm fairly certain it's a "when" not an "if." Society has changed too much, and the state's relationship to marriage eroded and shifted to far, for it to be otherwise. Whether you herald Obama's announcement this week, wish it had been stronger, or disagree altogether, it was a step. Maybe symbolic more than legal, but a step nonetheless. 

Weekly Round-Up for May 11th

The week's big news story, it would seem, is the President's support for same-sex marriage. Perhaps you heard about it... a sampling:

The New York Times story on the announcement. 

Joan Walsh's coverage of the story at Salon. 

Over at Slate, Emily Bazelon on what it means for the law . 

And John Dickerson on why he should thank Joe Biden for "forcing his hand."

Salon's Steve Kornacki on Biden's unlikely heroism. 

Slate's Linda Hirshman on why Obama was able to do it in a way a white President would not have. 

Back over at the Times, Michael Shear and Jennifer Steinhauer on how Republicans are trying to shift the conversation in response. 

Gabriel Arana (Salon) on what the President should do next. 

Finally, Atlantic's Molly Ball weighs the risks to Obama and to Romney. 

Other stuff happened this week, too:

The New York Times reports on an Orthodox Jewish community that is ostracizing those who spoke out against child molestation. 

Richard Lugar blasts the GOP's inflexible orthodoxy in his goodbye letter. 

The Governor of Colorado attempts to revive a bill that would allow same-sex civil unions in his state. 

...even as voters in North Carolina decide they want no part of same-sex unions of any kind, and get rid of opposite-sex civil unions to boot. 

Salon's take on the Mitt Romney bullying story. 

Apparently the John Doe masseur suing John Travolta for sexual harassment has lawyers who missed their calling as novelists. 

Violence in Law's Shadow

I've been thinking quite a bit the last two weeks about violence in sports, and I think it highlights a theme running through any number of my posts: places the the law circumscribes as locations of acceptable violence. My post on Trayvon Martin, for instance, notes that the law's weakness, rigidity, or absence may make people want to take it into their own hands. A corollary, however, is that laws like Florida's "Stand Your Ground" law creates a space into which it cannot tread. By legitimizing self-defense (even, as we have tragically learned, egregious over-reactions in the name of self-defense), the law cordons off certain civilian acts of violence and says "into here I shall not go."

There's something similar at work in the post on the New Orleans Saints. The NFL's authority over it's players, their written agreements with the NFL, their assumption of the risks inherent in the game, and the law's grant of autonomy create two layers of freedom from the law. The one I highlighted in that post was the freedom the NFL has to regulate and punish behavior in its purview. Jonathan Vilma's suspension is punishment by a private actor, not "the State." But I now see a separate plane; the NFL's raison d'être is legitimate violence. The number of things that happen on every single football play that would constitute assault and battery off the field is staggering. But of course, that's football.
 
 The violence is part of the game; the gridiron is a place that the law - that we as a society - have set aside as a place where the violence is okay. There are many more: boxing rings, MMA fights, rugby fields, hockey rinks, soccer fields (try slide tackling someone in the street, see what happens)

water polo pools, martial arts dojos, etc, etc, etc. There are lots of reasons to have these. Sports are good, and fun, and profitable, and sometimes violent. If we want those sports to be around - whether for fun, entertainment, exercise, profit, or what have you - then we need the law to keep its hands off. But what I want to briefly talk about today is how society can expand or contract these "law free zones" without actually changing the law.

I'm not a big NHL fan  - I prefer my hockey with a college pep band ringside - but even I have to say that the Penguins-Flyers series was outrageous. Not simply the outlandish goal scoring, either, but a number of fights, hits and penalty minutes that suggested the police might toss on skates and start making arrests right there on the ice.

(Fine, but YOU try finding a picture of police on ICE skates).

Of course they didn't, and what's been so amazing about the suspensions and penalties in the NHL playoffs thus far is the fact that Gary Bettman seems to have a dartboard in his office that determines the length of the suspension. I can't discern any semblance of rhyme or reason to them, and less dilettantish observers confirm what this outsider suspects. But fans love the fights. No matter how much people protest, the fights and big hits are getting more common, and so are the ratings.


This obviously creates disincentives for the league to crack down on fights or on big hits; if it's something people find attractive or entertaining about the sport, it's tough to really bring the hammer down. So our societal demands (or societal perversions, depending on your point of view) encourage a league where

In football, on the other hand, we're seeing the pendulum swing in the other direction. Junior Seau's death this week marks - staggeringly - the EIGHTH suicide by a former player in just the last few years. Malcolm Gladwell thinks we should ban college football, and Tyler Cowen and Kevin Grier spelled out a perfectly reasonable scenario wherein football as we know it ceases to exist in the next twenty-five years. It's become pretty clear that most people who play football at high levels for any length of time abandon all hope of a normal, long-lived, healthy life. It hasn't quite started yet, but how much violence, how many injuries, how many deaths need to occur before things start to change? Or - perhaps more importantly - before parents stop letting their kids play?

The Cowen and Grier piece - which I highly recommend - spells out footballs demise from the bottom up.  What happens if injuries in the college game become so expensive that insurers cease to cover programs? Some schools start to drop the sport, then others - with no old rivals to play agains - do the same. A sympathetic jury gives a family an enormous award for the accidental death of their son. As childhood injuries rack up, parents send their kids to play other sports and the Division 1 (and NFL) talent pool dries up. Sponsors depart.

Whether it happens or not, or whether it happens like THAT or not, isn't exactly the point. The point is that we can see a sport contract or change because society's relationship to the sport changes, not because the official relationship with the law necessarily changes (of course, that could change too...). The line drawn around a sport to cordon its violence off from the law is fluid, of course, and flexes with society's relationship with the sport. Whether football is genuinely near a tipping point I don't know, but it does seem that the incredible physical trauma players have to live with has reached unsustainable levels. IF you take a minute to think about Junior Seau and his family this week, remember that he is a symbol of the hundreds of ex-players who continue to suffer. And will we start to push back before it really just become bloodsport for our enjoyment: