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The Issue of Satire

Seminator di scandalo e di scisma… Dante, Inferno 28.35

Writing on the Simple Justice website, former prosecutor Scott Greenfield suggests that legal commentators, along with the appellate judges who reviewed the Raphael Golb case, have failed to “recognize that professors sending serious emails don’t use gmail accounts, or make outlandish confessions of wrongdoing,” and he continues:

Was this parody or a crime is the ultimate question. The problem with this question is that parody is in the eyes of the beholder, and a crime is in the eyes of the perpetrator.   Lawrence Schiffman, one of Golb’s targets, found nothing funny about the emails. So what?  The targets of parody rarely do. Parody doesn’t have to be amusing, though it often is.  Parody is “created to mock, comment on or trivialize” something.  It exists to harm a reputation.

The Court [of Appeals] implicitly holds that what Golb did was not parody, because neither the judges, the prosecutor nor targets like Schiffman thought it was funny.  So good parody gets a hearty guffaw, and bad parody gets a conviction?  Or more to the point, parody that escapes the technological limits of the New York Court of Appeals, who failed to appreciate that any slightly astute digital native would have immediately realized the emails Golb sent could not be real, is a crime.

Failure to recognize or acknowledge that the criminalized impersonations may have been intended as deadpan parody was a key aspect of the prosecution from its inception.  In his confidential letter (Aug. 29, 2008) submitted to Manhattan prosecutors, Lawrence Schiffman characterized Raphael Golb’s Internet campaign as a “sordid attempt to encourage acceptance of [Norman] Golb’s theories” (see N. Golb’s response to the letter’s salient assertions), and complained that he had been “portrayed” as admitting to plagiarism.  In their press release of March 5, 2009, the prosecutors characterized the campaign as an illegal “scheme” involving the “harassment” of Dead Sea Scrolls scholars, and explained, without any mention of satire or related forms of expression, that Raphael Golb “pretended to be” Lawrence Schiffman.  The “pretending” took place in “Gmail confessions” such as the following:

Apparently, someone is intent on exposing a failing of mine that dates back almost fifteen years ago. It is true that I should have cited Dr. Golb’s articles when using his arguments, and it is true that I misrepresented his ideas. But this is simply the politics of Dead Sea Scrolls studies. If I had given credit to this man I would have been banned from conferences around the world. — Lawrence Schiffman, professor

The trial court’s order of February 11, 2009 (eight months before the trial), did not address the issue of satire (a critical mode of discourse employing techniques such as irony, hyperbole, understatement, reduction, innuendo, burlesque, caricature, reductio ad absurdum, and personification, with effects ranging from the humorous through the tragic), but merely stated that it was “legally unnecessary … for this court to address all of the myriad of arguments raised by the defense at this point.”  The court never issued any further written order or rationale concerning this or any of the other First, Fourth, and Fourteenth Amendment issues raised in Mr. Kuby’s pre-trial memorandums.

During jury selection, defense counsel was blocked from asking a prospective juror whether she knew anything about parody, and during the trial itself, defense counsel was again (tr. 453) blocked from examining the investigating officer’s knowledge of parody.

After Raphael Golb testified that his intent in sending the criminalized emails was satirical, the prosecution (tr. 1240) drew the following distinction: “This was not for parody, this was for maliciousness.”  The most basic definition of parody is simply “satirical imitation.”

Then, moments before instructing (tr. 1281) the jury that “the questions for you are not the legal issues of freedom of speech under the First Amendment to the United States Constitution,” because “words can be the tools by which crimes are committed,” the court (tr. 1280) read out the following definitions:

Parody: “the close imitation of the style of an author or a work for comic effect or in ridicule”; and

Satire: “a form of humor where a writer tries to make the reader have a negative opinion of another by laughing at that person or making that person seem ridiculous or foolish, and the like.”

No standards were provided to the jury for determining, beyond a reasonable doubt, whether or not the emails fell within these definitions.  (For example, what constitutes “humor”? Is there a legally cognizable line between deadpan and comical mimicry? How “close” must the “imitation” be? Is Sarah Palin an “author” whose “style” was parodied in Tina Fey’s impersonation act?) Nor, indeed, did the court instruct the jury to make such a determination.  In consonance, however, with the general distinction between “humor” and “maliciousness” implied by the prosecution and the court, an alternate juror who spoke with the press declared: “If it was so funny, why wasn’t anyone laughing?”

At the sentencing hearing (p. 30), the court referred to Raphael Golb’s “criminal intent which brought [his] parody over the line.”

Compare, however, the following definitions and descriptions:

A parody (also called send-up or spoof), in contemporary usage, is a work created to mock, comment on, or poke fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation.

Satire is trenchant wit, irony, or sarcasm used to expose and discredit vice or folly; it arouses laughter or scorn as a means of ridicule and derision, with the avowed intention of correcting human faults. Common targets of satire include individuals (“personal satire”), types of people, social groups, institutions, and human nature.

The satirist serves as self-appointed prosecutor, judge, and jury, exposing and condemning the worst excesses of human behavior, sometimes… with the object of provoking the wicked to guilt, shame, rage, and tears….

(quoted from Wikipedia, Merriam-Webster, the Princeton Encyclopedia of Poetry and Poetics, and the Writer’s Guide of the University of Victoria).

Many online dictionaries and thesauruses specifically offer “malicious parody” as a synonym for lampoon, satire, etc.  See, e.g.:

The myth of reverential satire: In Hustler Magazine v. Falwell (1988), the United States Supreme Court explained that the “actual malice” standard used in defamation cases is not synonymous with “intentionally injurious” speech which benefits from constitutional protection; that “speech does not lose its protected character . . . simply because it may embarrass others or coerce them into action”; and that “the fact that society may find speech offensive is not a sufficient reason for suppressing it.”  Norman Roy Grutman had argued on behalf of Falwell that “malicious character assassination is not protected by the First Amendment to the Constitution.”

In approximately 540 BC, the sculptor Bupalus hanged himself after reading a parody of himself by Hipponax of Ephesus.

Famous first-person epistolary satires include the “Letters of Obscure Men” (Epistolae Obscurorum Virorum) (1515) at least three of which impersonated several public figures including the dean of the theological faculty at the University of Cologne. Monks around Europe were notoriously fooled by the “Letters” until their satirical nature was clarified at the very end of a second edition.  The “Letters” were banned by Pope Leo X in 1517, the same year in which Martin Luther promulgated his 95 theses.

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