A Democracy of ‘Lampooning and Spoofing’

April 30, 2008 | Insights

By Bob Latham

Whether intended by this nation’s founders or not, one of the more valuable benefits of the First Amendment is a robust and evolved national sense of humor. But what is interesting to me is that this seems to be the first presidential election year in which all candidates have come to realize that.

The modern era of candidates for the highest office in the land appearing on shows normally in the habit of lambasting them was ushered in by Bill Clinton’s appearance on Arsenio Hall in 1992, playing “Heartbreak Hotel” on the saxophone. Sure, there had been comedic cameos by presidential candidates before then — Richard Nixon on Laugh-In in the ’60s and Jimmy Carter on What’s My Line in the ’70s, for instance. But Clinton’s appearance during his 1992 campaign took things to a new level, due in no small part to the fact that his campaign was successful.

It is indeed a unique society in which one of the great legal minds of our country shares the same comedic views as Lorne Michaels and Jon Stewart.

However, 2008 may be remembered as the first year in which the final four of presidential politics each took advantage of the nation’s comedy shows to reveal a different side of them — and no doubt to connect with another type or age of voter. On the Republican side, Mike Huckabee was a favorite of Comedy Central‘s Stephen Colbert, and Colbert has repeatedly joked how Huckabee’s success in staying in the Republican race for so long was a product of the “Colbert Bump.” John McCain has been a frequent guest of The Daily Show‘s Jon Stewart.

At no time was the phenomenon more on display than on the Democrat side in the days before March 4. Hillary Clinton’s campaign was on life support. Pre-primary polls showed Senator Barack Obama ahead in Texas. But then Senator Clinton appeared on Saturday Night Live on March 1 and on The Daily Show on the Monday night immediately before the March 4 primaries in Texas, Ohio, Rhode Island, and Vermont. She won three of them, despite Obama having won the previous 11. (Obama, for his part, was also on Saturday Night Live in the fall and has been a frequent guest on The Daily Show.)

The Nostradamus for this phenomenon is identifiable. He is J. Harvie Wilkinson of the Fourth Circuit Court of Appeals. In 1986, six years before Bill Clinton’s Arsenio Hall appearance and 22 years before politicians seem to have broadly embraced or at least accepted the idea that they need to engage with those who roast them, Judge Wilkinson wrote a remarkable dissent in a petition for rehearing before the Fourth Circuit in Falwell v. Flynt. This was the case brought by Jerry Falwell against Hustler magazine, asserting intentional infliction of emotional distress resulting from a tasteless parody involving Falwell’s mother — later dramatized in The People vs. Larry Flynt. Indeed, Judge Wilkinson’s dissent may very well be my favorite legal opinion, and it portended the Supreme Court’s reversal of the Fourth Circuit. Of the many insightful, eloquent, and human passages in that opinion, Judge Wilkinson wrote, “Nothing is more thoroughly democratic than to have the high-and-mighty lampooned and spoofed. An observant electorate may also gain by watching the reactions of objects of satiric comment, noting those who take themselves seriously and those whose self perspective is somewhat more relaxed.”

It is indeed a unique society in which one of the great legal minds of our country shares the same comedic views as Lorne Michaels and Jon Stewart.

— Bob Latham is a partner at Jackson Walker. He can be reached at blatham@jw.com.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.