For Courts, Comment Is a Trap To Avoid   

The Moldea case may be making important history.

A Canadian cartoonist got into serious trouble with the judiciary a few years ago because he swatted a particular public official by showing him pulling the wings off a fly, and enjoying it.

In a wonderfully lugubrious judicial ruling, a judge wrote that not only was the cartoon inexcusably defamatory, it was not funny. That must have hurt more than the judgment. It was like gleefully tearing the wings off a cartoonist.

Boss Tweed did not think Thomas Nast's vulture-like depictions of him were funny; they made him look mean, and they didn't look like "the funnies." No doubt there were judges in New York who would have agreed that these cartoons were not only outrageous but, furthermore, were not funny.

What could be more hazardous to free expression than having judges decide what is really funny?

Answer: Having them decide not only what is satire or humor, as they sometimes must do, but also (for instance) deciding whether it is acceptably good satire or just a poor excuse for satire: satire which, by irritable order of the court, was written by someone who should have known better than to try it and who, therefore, is culpable in the eyes of the (snort!) law.

Humor and satire are even more perilous for writers than for judges, but they should not be more legally perilous than, say, basic sportswriting. Actually, they should be kept less perilous. There is no one around who should have official authority to calculate the batting averages, stolen bases and balks in satirical writing: not officially, anyway. Besides, if there were someone like that, it wouldn't be a lawyer.

The same should be said of opinion writing generally, whether or not it is satirical or humorous. Under the concept of fair comment, opinion writing has been deemed to be freer of legal constraints, though the boundary has always been unclear. But lately we have seen that the boundary is a cliff.

The case of Moldea vs. New York Times does not turn on a point of humor, but it is about commentary. In Moldea, the U.S. Court of Appeals for the District of Columbia walked over the cliff and then, in a judicial feat not unlike those used by rabbits and roadrunners in old cartoons, raced back through the air and onto the high ground. (See Lee Levine's article, "Diving Catch," page 34.)

This may turn out to be one of the most important legal cases of recent times for journalists, as Levine says. He points out the meaning for journalists in general, not just those who write opinion: an aspect that has had too little attention.

As he notes, Moldea has the potential to bounce some important varieties of legal assault out of the arena, relieving judges and juries of a heavy burden.

(My sympathies are not with the New York Times in its original response to Dan Moldea's complaints. Given all the circumstances, it should not have refused to run a letter from him replying to its very tough criticism.)

Take note of Levine's conclusions about what might be pitched from the courts' purview in a Moldea decision by the Supreme Court. It would be a victory for robust public commentary and analysis, whether dead serious or dead funny. l