Legal Commentary

People are talking about this week's New Yorker cover, too many to try to link to. Both Barry Blitt, the cartoonist, and New Yorker editor David Remnick responded to the immediate outcry on Huffington Post. The Obama campaign called the cartoon "tasteless and offensive." Remnick insists the cartoon "hold[s] up a mirror to the prejudice and dark imaginings" of some on the right about the Obamas, that it is a satire not of Obama, but "about the distortions and misconceptions and prejudices about Obama." And Obama supporters are threatening to cancel their subscriptions or to stop buying the magazine. Jack Shafer offers comments at Slate, noting that people from all institutions--both campaigns, the press, and the public--seem to be offended by this.

Of course this is satire. It is obviously a ridiculous mash-up of all the inconsistent and incoherent smears about the Obamas. In fact, standing alone the notion of Barack as a bin-Laden-supporting Muslim fundamentalist sharing political sensibilities with Michelle as a 70s-era Black Panther militant is absurd. I can imagine Saturday Night Live or Jon Stewart or Stephen Colbert doing something like this. But I join with liberal blogger John Cole in admitting to being tone deaf for these sorts of issues. For my part, my free-speech instincts kick-in. And one fundamental principle of free speech is that we ought not censor speech because some in the audience may misinterpret it--especially when it takes a certain amount of ignorance or willful blindness to misinterpret this. And especially with cartoons, a medium whose purpose is to "mock and dismiss the content" of its target. Shafer quotes a great line from Boss Tweed, who was more concerned with Nast cartoons lampooning him than with written criticism--"My constituents can't read. But, damn it, they can see pictures!"

Some thoughts after the jump.

First, in trying to identify this as satire or not (and thus to decide whether it truly is tasteless and offensive), context matters. Our experience with the New Yorker, its cartoons, and Barry Blitt cartoons in particular squarely pegs this as satire, especially combined with the magazine's left-leaning politics. In fact, in context, it should be clear that the cartoon supports Obama and mocks those who spread or believe the crazy noise about Obama's religion, politics, and patriotism. And I think this responds to the "what would have happened if this had been on FoxNews or the Weekly Standard or the National Review" objection. The same image has a very different meaning in those contexts, both because of political leanings and because of the magazine's history with the cartoon medium. This cartoon is making fun of Fox and Limbaugh and those who get their information from them.

Second, the problem seems to be a fear that a lot of people will see the cartoon and believe it an accurate depiction rather than a joke. More sinisterly, the lefty blogosphere fears that the GOP, conservative media and blogs, and GOP true-believers will use this to perpetuate the worst rumors, fears, and smears about the Obamas among those easily fooled among the masses--"see, even the New Yorker is reporting this stuff about the Obamas, so it must be true." But none of this renders the picture tasteless and offensive; what is tasteless and offensive is how some ill-informed people might understand the cartoon. Again, this is an argument that the New Yorker should watch what it says (or how it says it) because people are stupid and may misinterpret or misuse it. Shafer puts it succinctly: "Calling on the press to protect the common man from the potential corruptions of satire is a strange, paternalistic assignment for any journalist to give his peers, but that appears to be what The New Yorker's detractors desire."

Third, in his well-received speech to AIPAC in June, Obama said the following:

I also want to mention that I know some have been receiving provocative emails that have been circulated throughout the Jewish communities across the country and a few of you may have gotten them. They?re filled with tall-tales and dire warnings about a certain candidate for President and all I want to say is let me know if you see this guy named Barak Obama because he sounds pretty scary.

I think this got a laugh line, as intended. It seems to me this cartoon is a visual representation of all those tall tales, ridiculing them precisely as Obama did in the speech, only visually rather than verbally.

Fourth, and somewhat related, the Obama campaign last month made a show of establishing a rapid-response area on its web site, where false slams about Islam and lapel pins and the Pledge of Allegiance could be quickly addressed and rebutted. Some asked whether this was a good strategy, since in order to rebut the falsehood the campaign must repeat the falsehood, and may, incidentally, help it spread. This cartoon again seems to be doing the same thing--rebutting the stories (through humor and ridicule), but perhaps incidentally calling attention to them. So what is the difference? Is it the use of humor as opposed to a direct, serious response? Again, the objection becomes "people won't get the joke." Is it the source--the campaign itself as opposed to an outside commentator?

Fifth, I think the worst thing that can be said about the cartoon is that it does not work--it is not funny or biting or out there. That is Drum's basic point. But that is the great risk when using humor as a rhetorical device--a point that came out in the comments to Dave's discussion last week about judges and professors using humor in legal writing. The question is whether failed humor morphs into serious comments, and thereby becomes offensive and outrageous, or whether it simply remains bad humor. I hope the latter. Humor and satire fails all-too-often. If the satirist must hesitate less the satire fail and be taken as a serious, thus offensive, assertion, satire will disappear as a mode of criticism.

Finally, the image on the right is courtesy of Napsterization, responding to Drum's suggestion that a really gutsy cartoon would have featured McCain imagining the scene as the way he wants the country to view Obama. This version would have made it clearer that the target of the satire was the right-wing belief in, or hope for, this image of the Obamas, and not at the Obamas themselves. I do like the remixed version. But the need for it reflects a different version of the stupid-people-are-going-to-misunderstand-this criticism--don't withhold the image, but make the image so much more obvious and less subtle so people can't misunderstand.

I welcome anyone to tell me why I am wrong.