Ain’t that funny? A jurisprudential analysis of humour in Europe and the U.S.

Abstract

This paper provides a legislative and jurisprudential comparative of European and U.S. case Law on humour. Whilst the Europe-U.S. comparison, in the ambit of expression, has been looked at extensively, there has yet to be a focus on the varying ways in which humour is treated in the two spheres.  What will become evident is the intricacy of cultivating just legal tests to be used by the judiciary in deciphering an inherently abstract theme. At the core of these tests at the European level, is a balancing exercise between the right to offend and the right to be free from offence. However, the multitude of available interpretative routes, in addition to the array of differing human responses to humour, renders such tests and their application legally fragile. This reality raises concerns vis-à-vis the fundamental right of freedom of expression and becomes particularly topical within the current digital age and the ‘polarizing dynamics of social media.’ Godioli (2020:1) The analysis will demonstrate that humour receives much greater protection in the U.S. Framework due to the First Amendment whereas the highest regional human rights court in Europe, namely the European Court of Human Rights is quick to limit humorous speech on grounds of offending others, thereby demonstrating a backsliding of the fundamental freedom of expression, including humorous expression in the region.