Luisa Fernanda Isaza-Ibarra (University of Groningen)
Against the efforts of Donald Trump to kill the conversation about the Epstein files, people are talking and the jokes keep flowing. As late night comedians have shown, Trump’s relationship with Epstein is the comedic gift that keeps on giving.
Since coming back on air after his suspension, Jimmy Kimmel has joked saying that Trump is trying to distract people from the Epstein files by claiming he was a victim of sabotage by the United Nations and by announcing that he will declassify the files about pilot Amelia Earhart. In other shows, comedians have linked Trump more directly with possible crimes. For instance, Stephen Colbert sarcastically said that he was ‘shocked’ to learn that Attorney General Pam Bondi had told Trump that his name was in the Epstein files, adding ‘What are you going to tell me next? That the pope is in the Catholic files?’. Others have gone past mere insinuations: Seth Meyers said that ‘they must be finding so many mentions of Trump they’re going to have to change the name to “The Trump Files, Featuring Jeffrey Epstein”’ and Josh Johnson joked about Epstein’s denial to answer whether or not he socialised with Trump in the presence of females under the age of 18, which – in his view – showed that Trump clearly did.
However, Donald Trump has not been found guilty of any wrongdoing in relation to Epstein’s crimes. In fact, he has not even been formally charged with a crime. To what extent, then, can comedians joke about a public figure’s links to ongoing scandals? And how can courts draw a fair line between satire and defamation in these cases?
A comedian against comedy: The Azcárate Case
Let’s look at an ongoing judicial case from Colombia. In May 2021, news broke about a small plane that had been caught carrying almost half a ton of cocaine from Bogota to a Caribbean island. What was particular about this plane is that it was linked to a company run by a man who just happened to be the husband of Alejandra Azcárate, a comedian that was famous for her cruel jokes. Media outlets widely covered the scandal and, as is often the case, jokes linking her to drug trafficking and calling her a ‘narcomedian’ came rolling in over social media. However, Azcárate was not involved in the trafficking of these drugs. In fact, her husband was cleared of any responsibility since he was not the owner of the aircraft and was not involved in its operations at the time.
Among the people joking online there was the Colombian comedy duo Fucks News who applauded Azcárate for somehow finding the time to both making comedy and trafficking drugs. They clapped congratulating her while white dust was falling from their hands (see image above). Not happy with the mockery, Azcárate sued Fucks News for damages.
As with the Trump-Epstein jokes, here is another case in which there is a known crime, there is a famous person that is somehow linked to it, such a link is established by regular news reporting, but then comedians make jokes about the situation with accusations and heavy insinuations.
Parodies, cartoons, and other types of comedy often show us that people do not always expect humour to stick strictly to facts. When American publisher Larry Flynt ran a story insinuating that Christian pastor Jerry Falwell was an alcoholic who had lost his virginity with his mother, nobody believed that Flynt was really serious (as recognised by the U.S. Supreme Court when it ruled against the pastor). As explained by humour scholar Marta Dynel, humour is a form of ‘overt untruthfulness’, which is not ultimately meant to mislead the recipient, as opposed to deception or ‘covert untruthfulness’. But how much exaggeration, distortion, unproven facts, and insinuations can judges take and when, instead, do we get into deception territory?
A case-by-case approach
Serious disinformation researchers sometimes include satire and parody in the mis/disinformation conversation. While this stance has drawn criticism, it is true that often people take satirical comments seriously. For instance, researchers found that Stephen Colbert’s The Colbert Report, a satirical portrayal of a conservative news pundit that ran from 2005 to 2014, was often misinterpreted by conservatives who thought Colbert was serious about what he was saying. So what should judges do?
Musician Elton John did not like The Guardian’s insinuations of wrongdoings by him. In 2008, the newspaper published an article titled A Peek at the Diary of Sir Elton John, a satirical piece that suggested that the money raised in John’s annual fundraising event was primarily used to finance a ‘preposterously lavish’ ball for celebrities instead of fully supporting the fight against AIDs. Elton John sued but The Guardian won, since the English High Court of Justice believed that no reasonable reader would have understood the words in the article to be serious allegations. According to the court, ‘a reasonable reader would expect so serious an allegation to be made without humour, and explicitly, in a part of the newspaper devoted to news’ (para. 32).
Another case where judges have allowed comedic insinuations of wrongdoings was a defamation lawsuit against comedian Sasha Baron Cohen (famous for playing the character of Borat) started by Roy Moore, an Alabama Supreme Court judge who had been publicly (but not judicially) accused of sexual misconduct, and his wife, Kayla Moore. In 2018, Cohen interviewed Moore disguised as an Israeli anti-terrorist expert. In the interview, the comedian used a hand scanner that could supposedly detect sex offenders and made the device beep each time it got near to Moore, suggesting that he was one. The Court of Appeal that looked at the case ruled in favour of Cohen finding, among other things, that it was ‘clearly comedy’ and that ‘no reasonable viewer would conclude otherwise’.
However, some judges have been stricter. In 2012, the BBC reported on serious allegations of child sexual abuse by an unnamed ‘leading Conservative politician’. After conservative politician Alistair McAlpine was widely rumoured on social media to be the man in question, Sally Bercow (a well-known British personality) tweeted: ‘Why is Lord McAlpine trending? *Innocent face*’. However, soon after news outlets reported that McAlpine was not the person. McAlpine sued Bercow and won, since the High Court thought that the words ‘innocent face’ imply to a reasonable reader that the question was insincere, therefore amounting to a serious factual allegation. It is worth noting that, according to the Court, a reasonable reader would infer that it was Bercow who had provided ‘the last piece in the jigsaw’ (para. 85) to solve the mystery of the unnamed politician. In other words, it was Bercow who drew the link between McAlpine and sexual abuse.
In another case, Egill Einarsson, an Icelandic controversial media personality who had been publicly accused of sexual assault, sued in 2012 an Instagram user that had published a picture of Einarsson with the caption ‘fuck you rapist bastard’. The post was later reproduced in an online newspaper article along with an interview with the Instagram user. The case made it to the European Court of Human Rights and Einarsson won.
Trump, Azcárate and the ‘reasonable person’
To conclude: as we have seen, when faced with the question of humour versus deception, judges often make decisions based on what they think a ‘reasonable person’ would believe. However, in practice, defining who would be the hypothetical reasonable person and how they would interpret the humorous expression is easier said than done. As suggested in the toolkit What’s in a Joke?, when taking the perspective of a ‘reasonable person’, judges should also consider the context of the humorous expression. Among other things, this also includes understanding who are the people joking and what genre the disputed expression can be ascribed to.
In both the Trump-Epstein and the Azcárate cases, we know that the jokesters are not really journalists breaking the news. Rather, they are commentators of news. The link between Epstein’s crimes and Trump as well as the one between the drug trafficking scandal and Azcárate was not first drawn by any of these comedians. Also, when it comes to genre, both the American and the Colombian shows are known for their satirical style which is not to be taken literally – just like the comedians behind Fucks News do not expect us to believe that the white dust falling from their clapping hands was actually cocaine.