THAT JOKE ISN’T FUNNY ANYMORE, PART 3,569

As some of you know, I don’t really buy into the meme that Donald Trump is a fascist dictator. However, I’ll admit he – or at least the people he surrounds himself with – has a tendency to hand a lot of free ammo to people trying to make the case that he is.

Two recent examples:

1. The DOJ – headed by General Jeff Sessions – prosecuted Code Pink activist Desiree Fairooz for laughing at Jeff Sessions (or, more accurately, laughing at an introductory description about Sessions during his confirmation hearing while he was in the room).


2. The FCC is pondering an obscenity charge against CBS after Stephen Colbert said “cock holster” on air in reference to President Trump and Vladimir Putin.

FCC obscenity law is one of my pet hobbies, and I find this one the least worrying of the two – pending a result, at least – for a couple of reasons.

One: I don’t think there’s any direct evidence the FCC opened the investigation because of who Colbert was talking about. The FCC generally will investigate obscenity if enough people file complaints – and between conservatives who are furious that Colbert said that about the President (an office for which they demand everyone respect as long as there’s a conservative holding the office) and liberals who are furious that Colbert said something they consider homophobic, I’m sure the FCC got enough of an earful over it that it decided to check it out. I seriously doubt Ajit Pai got a phone call from Trump telling him, “Get Colbert.”

Two: I also seriously doubt the FCC will be able to put together a case. The FCC’s own rules make obscenity very hard to prove. They might have a stronger case for indecency, except that the broadcast in question happened during safe harbor hours (under which indecency is allowed), and CBS bleeped out the offending word.

So under normal FCC procedures, I would be very surprised if the FCC found a case for obscenity. Granted, these are not normal times, and this particular FCC could potentially come up with an off-the-cuff interpretation of what counts as obscenity that suits the purpose of penalizing Colbert via CBS. But again, I think it's more likely that the FCC will decide there’s no case.

The Sessions/Fairooz case is more troublesome.

It’s worth stating a few facts about the case up front:

• Fairooz was officially charged with disorderly conduct and “parading or demonstrating on Capitol grounds”
• That included the laughing bit, as well as her allegedly shouting a few slogans and holding up a sign while she was being escorted out by the police
• Fairooz was convicted, but not for laughing – a couple of jurors have said anonymously that they did not accept the argument that her laughing constituted disorderly conduct. But as she was charged with the other actions as well, they had little choice but to convict her.

So technically, if Fairooz goes to jail (and she hasn’t been sentenced yet), it won’t be for laughing at Sessions.

However, the fact remains that it was her laughing that got her arrested in the first place – and the prosecutor argued that the laugh counted as disorderly conduct, even though by most accounts (including actual video of the hearing) her laugh didn’t interrupt or disrupt the hearing in any meaningful way. So she may not have been convicted for laughing, but she was certainly arrested for it. And rather than just settling for escorting her out of the room – which essentially solved the alleged disruption problem – the DOJ opted to spend taxpayer money charging and prosecuting her to the fullest extent of the law.

Just think of it.

Of course, we don’t know for a fact to what extent Sessions personally had to do with any of this. We know he didn’t have her arrested because he wasn’t AG at the time. We don’t know whose idea it was to prosecute her, but clearly by then Sessions was AG, and surely he at least was aware of the case. If so, he could have ordered the case dropped, if only because any idiot could see that prosecuting a case like this wouldn’t look good. Maybe he figured the law is the law and we can’t let politics or appearances influence how we carry out law and order. And he’d technically be right. Or maybe he knew who Fairooz was – and her political activities – and decided to make an example of pinko protesters who hate America, and if it takes the equivalent of jailing Al Capone for spitting on the sidewalk, then so be it.

I don’t know.

Still, the fact remains that Fairooz is facing a jail sentence because she LOLed at a speech praising the guy who was about to become AG.

Which is perhaps a significant development in the context of a POTUS administration that is reportedly looking at ways to alter libel laws as a way to deal with “fake news”and holding media accountable for reporting fake news. Let’s remember that libel laws already protect public figures from false statements about them – the problem is that you have to prove they’re false, which presents a problem for Trump since his operational definition of “fake news” is “anything that questions anything Trump says or makes Trump, his cabinet, his family and friends look bad in any way whatsoever”.  Also, Trump tends to make all kinds of accusations without offering a shred of evidence to back it up. That's not going to cut it in a libel suit. 

Some people will tell you that all this is evidence that the fascist crackdown on dissent has begun. But most of the same people have been saying that since Trump won – heck, some have been saying that since Reagan won – so I don’t take them too seriously. I don’t think the Colbert case is that serious (yet), and the Fairooz case may be a one-off. It’s not like we’re seeing liberals rounded up and stuck in re-education camps or anything. As Reason points out, whatever designs Team Trump may have on the 1A, there’s a huge (YUGE) gap between WANTING to alter/abolish the 1A and actually doing it. It’s not a unilateral action, and the courts have already demonstrated in no uncertain terms that they will not stand for the POTUS telling them what they can and cannot decide.

And, as Reason also points out, the desire to unilaterally decide what counts as free speech and enforcing it with laws, constitutional amendments, overturning court decisions or – in extreme cases – a sucker punch to the face isn't exclusive to right-wing fascists (see: Citizens United, hate speech, whistleblowers, speaking gigs at UC Berkeley, Richard Spencer, etc).

In fact, coming back to Colbert, the cock-holster joke is an interesting example of both conservatives and liberals getting bent out of shape over the same speech for entirely different self-serving reasons: liberals think Colbert should lose his job because he said something homophobic (which is debatable, but I’m running out of space here), and conservatives think he should lose it because he disrespected the President (also debatable, not to mention disingenuous given the respect many of the same conservatives afforded Obama).

Of course, criticism is not censorship, no matter how often Fox News commentators claim it is. But when the criticism includes the proposition that you should not be legally allowed to say what you just said, then yr basically endorsing the same principle that Team Trump is pushing with the whole fake news/libel laws meme – you just have different criteria.

So while I don't think Trump ordered the FCC to punish Colbert, there are an awful lot of people who would fully support such a notion. That’s important. One of the biggest dangers to the legal concept of free speech isn't chumps like Trump who want to change the law so they can suppress speech they don’t like, but ordinary schmoes who cheerfully support such efforts under the delusion that it will only be used against their enemies and not themselves.

One other point – it’s interesting that both the Colbert/Fairooz cases have one key element in common: humor.

So maybe Patton Oswalt was right.

Don’t make me laugh,

This is dF