My posts are usually about business and legal developments in the entertainment industry, especially disputes regarding profit participations. But in this post, I focus on two recent cases which pose questions not often asked in litigation. Namely, who, and what, is funny?

In 2018, an elaborately disguised Sacha Baron Cohen, pretending to be an Israeli anti-terrorism expert, lured Roy Moore, former Chief Justice of the Supreme Court of Alabama, to an on-camera interview on the promise of a phony award. Baron Cohen ultimately put the interview in his Showtime series, Who Is America? –  viewable here.

The backdrop: Claims by numerous women of past inappropriate sexual conduct had dogged Moore’s recent, failed campaign for the U.S. Senate, including a claim by an accuser who had been just 14 years old at the time. Moore, not surprisingly, denied any wrongdoing.

In the interview, Baron Cohen brought out a supposed military-grade device capable of detecting sex offenders and pedophiles, and when he waived the fake wand over Moore, it repeatedly beeped like a “hot” Geiger counter. Moore soon ended the interview, and sued.

The second recent case raising the question of who, and what, is funny, involves online conservative publication The Federalist and Ben Domenech, its publisher. On the day unionized Vox Media employees walked off the job, Domenech tweeted:

FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.

The tweet is viewable here. The National Labor Relations Board construed this tweet as a threat of reprisal for potential union activity at The Federalist and, hence, an unfair labor practice. In response, Domenech claimed his tweet was . . . funny.

Both Baron Cohen’s and Ben Domenech’s sense of humor has now been tested in court.

Multiple Choice Question

In these cases, did the courts conclude that:

A.     Sacha Baron Cohen was funny, but not Ben Domenech?

B.     Domenech was funny, but not Baron Cohen?

C.     Neither of them was funny? Or

D.     Both were funny?

For the answer, and my thoughts about judges and comedy, read on . . .

How “Funny” Came Up In These Cases

The Roy Moore case [1] centered on Moore and his wife’s claims of fraud, defamation and intentional infliction of emotional distress. The Moores ultimately lost. The Federalist case [2] challenged a Labor Board finding that the salt mine tweet was an unfair labor practice. The Federalist, and its publisher Domenech, ultimately won.

Who Is Sacha Baron Cohen?

Sacha Baron Cohen is the creator of such comedic characters as Ali G, Borat Sagdiyev, and Bruno Gerhard, whom he has performed in, respectively, Da Ali G Show (2000-2004), Borat (2006), Brüno (2009), and Borat Subsequent Moviefilm (2020). He is widely acclaimed, having won or been nominated for Golden Globes, Emmys, Oscars, and awards of the Writers, Directors, Producers, and Screen Actors Guilds. In 2021, MTV accorded Baron Cohen its Comedic Genius Award.

Who Is Ben Domenech?

The Federalist publisher Ben Domenech is a political essayist, blogger, editor, and commentator for Fox News and others. On air, Domenech’s tone is often earnest, sometimes and hyperbolic and even outrageous, but not comedic. In fact, if there’s such a thing as the opposite of a comedian, Domenech is arguably that.

Comedy Style and Structure: Contrast and Compare

Baron Cohen conducted his fantastical Roy Moore interview in the persona of made up Israeli terrorism expert Erran Morad, a character which Baron Cohen wrote, created, and performed, skillfully employing accents, prosthetics, and physical comedy, supported by careful planning and nimble improvisation.

The trial court judge noted the accumulation of absurdities in the Roy Moore segment:

The segment began with an absurd joke (i.e. , “Gen. Erran Morad” boasting about once killing a suicide bomber with an iPad 4, but luckily he had purchased AppleCare) [. . .] The actual interview of Judge Moore then became even more absurd [. . .] Cohen, in his over-the-top “Erran Morad” character, waving a wand that supposedly detects enzymes emitted by pedophiles [. . . ] [which] also was able to detect hidden tunnels used by terrorists.

The judge then tied this string of absurdities to permissible satire, which is “deserving of substantial freedom—both as entertainment and as a form of social and literary criticism [internal citations omitted].” [3]

On the other hand, Ben Domenech, didn’t apply any of the techniques which comedians like Baron Cohen study and master. Instead, Domenech simply issued his salt mine tweet which he later claimed was a joke. But was it really a joke? Was it funny? And whether or not it was funny, was it OK?

Early Rulings in The Federalist Case

Domenech’s initial claim that his tweet was a joke fell flat. The administrative judge found that:

this tweet had no other purpose except to threaten [The Federalist’s] employees with unspecified reprisal, as the underlying meaning of ‘salt mine’ so signifies[.]

Euphemism as an Expressive Form

By emphasizing underlying meaning, the administrative judge recognized the salt mine tweet as euphemism: the substitution of a mild or indirect expression for a harsher or blunter one, when referring to something sensitive, unpleasant or embarrassing. Think, for example, of euphemisms for excretion or sex.

A novel euphemism, showcasing a never-before-heard turn of phrase, can demonstrate creativity and humor and, perhaps, rise to the level of a joke. But the use of a familiar euphemism, in a familiar way, is often a cliché, tired at best, and – depending on its subject matter – often crude.

Euphemisms for Punishment

American English has many euphemisms for punishing or inflicting pain on someone. Examples include:

Clean someone’s clock [4]

Fix someone’s wagon [5]

Teach someone a lesson [6]

Bitch-slap someone [7]

Sending someone to the salt mines is another familiar, albeit tired euphemism for punishment and pain. Its origins lie – where else? – in the salt mines which, in Czarist Russia and elsewhere, were associated with both hard labor [8] and illness tied to the salt itself. [9]

The Salt-Mine Tweet in Context

It may come as no surprise that The Federalist is known for anti-union sentiment. In this context, Domenech’s tweet certainly looks like an anti-union statement. True, it may be hyperbolic and even outrageous, but those qualities don’t make it funny, or any less a threat. Domenech didn’t tweet “unionize and I’ll give you a wedgie.” He tweeted, in effect, “unionize and I’ll make your life miserable.”

The Tweet on Appeal

On appeal, however, the Third Circuit, instead of accepting the widely understood meaning of sending someone to the salt mines, went out of its way to conjure a new meaning for the phrase. The Court’s technique? Literalizing individual words and phrases of the euphemism. Applying this technique, the Court mused:

The image evoked—that of writers tapping away on laptops in dimly-lit mineshafts alongside salt deposits and workers swinging pickaxes—is as bizarre as it is comical.

But is this kind of literalizing a legitimate basis for understanding a euphemism? Suppose the boss were to say to his female employee, “Do you want to play hide the salami?” Should that be seen as a request to stage a scavenger hunt, replete with luncheon meat? You know, maybe the boss has a funny bone?

As lawyers, we are taught to interpret contracts as a whole, consider conduct under the totality of circumstances, and so on. In its decision, the Court doesn’t even provide legal authority for its literalizing technique. It just uses it.

The Multiple Choice Test – Revisited

Returning now to the multiple choice test, the correct answer is D. In these two cases, the courts found that both Sacha Baron Cohen and Ben Domenech were funny.

The courts were half right. One of this pair was funny.

What This Case Means for You

In the workplace, don’t be in a hurry to substitute a euphemism for something you wouldn’t, or shouldn’t, say openly and directly. But if you can’t help yourself, maybe signal first that you’re code switching to comedy. Then raise your game, and try to make it funnier than “I’ll send you back to the salt mines.”

What This Case Means for Judges

The Federalist case could have been decided on other grounds. Putting aside its questionable take on the meaning of the euphemism, the court presented many credible arguments against construing the tweet as an unfair labor practice.

So, Dear Judges: If you absolutely must decide whether something is funny, ask yourselves, what level of funny should it take for a get-out-of-jail-free card? A Sacha Baron Cohen level of funny? Or a Ben Domenech level? [10]

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[1] Moore v. Cohen, No. 21-1702-cv, 2022 U.S. App. LEXIS 18648 (2d Cir. July 7, 2022)

[2] FDRLST Media, LLC v. NLRB, 35 F. 4th 108 (3d Cir. May 20, 2022)

[3] Moore v. Cohen, 548 F. Supp. 3d 330 (S.D.N.Y. 2021)

[4] https://grammarist.com/idiom/clean-someones-clock

[5] https://www.dictionary.com/browse/fix-someone-s-wagon

[6] https://www.collinsdictionary.com/dictionary/english/to-teach-someone-a-lesson

[7] https://www.lexico.com/en/definition/bitch-slap

[8] See, for example, In Russian and French Prisons (1887) by Peter Kropotkin:

“[T]he hard labor convicts in Siberia can be classified under three great categories: those who are kept in prison; those who are employed at the gold mines of the Imperial Cabinet or of private persons; and those who are employed at the salt-works . . .  [I]t is considered as a rule, by all those who have seriously studied the Siberian hard labor institutions, that the convict who has remained for several years . . . at the salt-works, comes away quite broken in health . . . [T]he salt-works, . . . they imply the worst kind of hard labor . . .”

http://dwardmac.pitzer.edu/Anarchist_Archives/kropotkin/prisons/chap5.html

[9] On challenging health outcomes for even modern salt workers, see “Risk of high blood pressure in salt workers working near salt milling plants: A cross-sectional and interventional study,” https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1190202/

[10] For an excellent overview of the treatment of humor in the courts, see Laura E. Little, Regulating Funny: Humor and the Law, 94 Cornell L. Rev. 1235 (2009) Available at: http://scholarship.law.cornell.edu/clr/vol94/iss5/9

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Ezra Doner is an entertainment and copyright lawyer who focuses on the film, TV and other content sectors. He is based in New York and is admitted to practice in New York and California. He does not represent any of the parties in this case.