There is no way, I think, to more thoroughly annoy a proponent of free speech than to claim that criticism violates it.

It’s hard enough defending free speech sometimes. People don’t see anything wrong with stopping the Westboro Baptists from protesting. Denying the Holocaust? Yeah, go ahead and outlaw that. Hate speech– what, that’s not already illegal? By all means, ban that too. And nobody really needs violent video games or faux-violent porn, do they? Banish those, along with the burqas!

No, I’m not going to address any of those topics right now. I’m just going to say that when you’re talking about violations of free speech, more speech which happens to be critical of that speech isn’t one such violation.

I am talking, of course, about the Daniel Tosh thing. If you’ve been under a rock lately and aren’t familiar, he made some jokes about rape to an audience and then heckled a female heckler who didn’t like them by joking about her being raped. Yeah, I know. I know. And now we have to have this big discussion about the claim made by the woman which was that jokes about rape are never funny, and alliances have to be created and lines drawn between people who agree and people who disagree, and actually some really good and useful and even funny discussion can arise from it. For instance, you should go read Lindy West’s piece How to Make a Rape Joke at Jezebel. I really enjoyed her last two examples of funny jokes about rape, because a) I hadn’t heard of either of those comics before, and b) as with all four examples she gives, the joke isn’t making fun of rape victims. It’s about mocking the rapist, and the mentalities that feed into that, and the circumstances of people who go about their lives worrying about either being raped or being thought a rapist, or both.

Two of my favorite comedians, Patton Oswalt and Louis CK, have weighed in with support for Tosh. Oswalt’s has been conflicted and convoluted, and Louis CK is one of the people commonly accepted as being able to do a joke about rape correctly– he’s one of West’s four examples, for that matter. To call this disappointing would be an understatement. Both of these comedians are so much smarter and so much funnier than Tosh that it’s like seeing Batman sympathize with a police officer who was accused of roughing up a suspect. And there is actually a similar sort of closing ranks going on– they’re sympathizing as fellow comedians, people who also get up in front of a crowd and say things that might make the crowd erupt in laughter or erupt in rage. And they’ve also dealt with hecklers, and know what a trial that is. Hecklers don’t just pop up in the audiences of small time comics, but that’s where they’re most common. Generally speaking, the “job” of a comedian who is faced with a heckler is to shout him or her down. To make fun of and embarrass him or her. Some comics have developed this ability into a high art, while others prefer to simply say “Shut up, or you’re out of here.” And that, of course, requires having access to some sort of security personnel who can make good on that threat for you, since the comedian him or herself is not going to interrupt the show, step down off the stage, and personally deal with the person who has been disrupting things.

So yes, dealing with hecklers is rough. And the woman in question was technically a heckler, though in the interests of fairness it’s important to point out that she didn’t mean to go see a Daniel Tosh show. She meant to see Dane Cook (also offensive, but mainly because unfunny), and Tosh came on afterward. She apparently had no idea who he was, was disturbed to see rape discussed as a possible topic of jokes to follow, and declared that rape jokes are not funny to this person with whom she was quite unfamiliar. And what followed was really unpleasant, regardless of whether you go by the described linked above or the account of the owner of the Laugh Factory, who ended by saying “If you don’t want to get insulted don’t go to comedy clubs.” After being quite happy to condemn Michael Richards for his racist insults, of course, because those “came from hatred.”

Patton Oswalt and Louis CK offend audiences sometimes too, and they have an interest in not wanting comedians who offend to be punished too severely. But by and large they have no reason to fear this punishment, because they don’t make bigoted jokes. Making bigoted jokes is easy, which is why why lazier and less creative comics do it all the time. It’s hard to fail by appealing to the prejudices of your audience, provided your audience actually has those prejudices. And since audiences have warmly embraced or at least chuckled at sexist jokes for a very long time, it’s not at all surprising that a lazy, uncreative comic would resort to them. Because they work, and most likely because that comic shares those prejudices himself.  It takes work to make a joke about a sensitive subject that doesn’t involve mocking the very people who are so sensitive to it, and it also takes caring about those people in the first place. Comedians have an interest in appealing to a broad audience, obviously, and it’s doubly, triply challenging to make it and be successful without mocking minorities or even being a minority yourself– if you don’t believe me, give Believe: The Eddie Izzard Story a watch sometime.

Louis CK is a straight white man, and he makes fun of himself as a straight white man– constantly. He is the definition of self-awareness, sometimes even painfully self-aware, and that’s why his jokes on these topics work. Clearly he’s thought about them, a great deal. My favorite Louis CK rape joke isn’t mentioned in the Lindy West article, but it’s this (NSFW language, definitely):

Here we have Louis CK talking about trying to do the right thing, and not being appreciated for it. And it’s funny, because he is earnest. He’s thought about it. When Louis CK makes a joke that portrays him as an asshole, you know he’s not really an asshole. Possibly people who are assholes laugh at those jokes because they think he’s identifying with them, but he isn’t. Trusting the comedian is an important element, but you don’t really have to trust Louis CK because he makes it abundantly clear what he’s being literal about and what he isn’t. This is not a description that applies for Daniel Tosh.

Somebody in the comments for the Pharyngula post about this whole debacle linked to this essay articulating why and when rape jokes are or aren’t funny, and it’s definitely worth a read. It’s clear, it’s actually very light-hearted and casual considering the subject matter, and it’s very thoughtful. Give it a read when you’ve got some time to think and consider.

You know what it’s not, however? A freedom of speech issue. A freedom of speech issue is when you’re being censored by the government. Massive crowds of people looking on what you’ve said or done disapprovingly is not a freedom of speech issue. It is simply the assertion and exercise of their equivalent freedom of speech.