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“They can shut me up, but they can’t change the truth.”

There is a silent war on dissenting amusement afoot. But it's a slippery slope we're on when the criminalization of laughter can lead to punitive arrest, as in the case of activist Desiree Fairooz.

Maggie Hennefeld
11 November 2017

A woman will not go to prison for laughing at Jeff Sessions. Not this time: the Department of Justice has just announced that it will drop all charges against Desiree Fairooz, the 61-year old Code Pink protester who was forcibly removed and arrested for laughing out loud during Jeff Sessions’ Attorney General confirmation hearings on January 10th 2017.

Her amusement had been provoked by a laughable punchline. Republican Senator Richard Shelby had praised Sessions for his “extensive record of treating all Americans fairly under the law,” adding that this record “is clear and well-documented.” As a description of a man who was once denied a federal judgeship because of his racism, who actively supports anti-immigrant and anti-LGBTQ policies, and who casually jokes about the Ku Klux Klan, Shelby’s utterance was patently absurd and deserving of the audible derision it received. 

For her protest, Fairooz then faced up to a year in jail and $2,000 in fines. Her conviction in early May elicited a viral storm of outraged responses, including headlines such as: “A Woman Is on Trial for Laughing During a Congressional Hearing,” “Activist’s Giggle Leads to Conviction,” and a piece authored by the Medusan disruptor herself, “I’m Facing Jail Time After Laughing at Jeff Sessions. I Regret Nothing.

On July 14th, the day of Fairooz’s scheduled sentencing, Judge Robert E. Morin instead called for a new trial to take place in September, which, as Fairooz commented, “just seems like an absurd waste of tax dollars” (and a spokesperson for the U.S. Attorney’s office even indicated that the retrial might not go ahead at all). The judge decided that Fairooz’s laugh alone was not adequate grounds for establishing her guilt, and that “it was disconcerting that the government made the case in closing arguments that the laughter in and of itself was sufficient.” Fairooz added: “I am disappointed [about the re-trial], but I guess I should be happy I’m not sitting in jail.”

On September 1st, Fairooz rejected a plea deal from the Department of Justice that would have required her to confess to her guilt—to criminalize her own laughter—in exchange for a lighter sentence. Her re-trial was scheduled for November 13th, until the DOJ announced on November 8th that it will drop all charges (amid Robert Mueller’s ongoing investigations into Sessions, and the night after Democratic landslide victories at the polls in Virginia and New Jersey).

What precedent is there for Fairooz’s indictment? Women are sometimes held in contempt of court for laughing at inappropriate moments, but usually when their laughter offends an already vulnerable party (not a powerful public figure). In February 2017, a woman was sentenced to 93 days in jail for her hilarity at the gruesome details of a man’s death in a DUI accident – while family members of the deceased were present in the courtroom. Laughing in disrespect of the dead has a legacy of retributive punishment: in 1862, a Confederate woman named Eugenia was arrested for laughing at the funeral procession of a Union soldier (she had also encouraged her children to spit on the uniforms of Union officers).

However, it was not the fact of Fairooz’s laughter that provoked her arrest, so much as what it signified: an anti-racist challenge to white male authority. This is clear from the government motion filed against her, which alleges that her laughter disrupted the hearing by instead putting “the nominee’s racist views, policies, and voting record” on trial. Fairooz’s rebellious laughter evokes the classic Dutch feminist film, A Question of Silence by Marleen Gorris, in which three “unruly women” laugh hysterically during their own murder trial. Their laughter erupts at the prosecution’s outlandish claim that they live in a post-sexist society. Incidentally, the women are on trial for killing a male boutique owner, whom they beat to death in an unpremeditated outburst of joyful anger due to his cruel harassment of a female shoplifter.

In the film’s courtroom, this “question of silence” refers to the tyranny of lacking a voice against routine injustice, which then can only be articulated through defiant and disruptive laughter. 

The politics of laughter have always been a concern of the law – at least since the Ancient Greek demos. In his Nicomachean Ethics, Aristotle argues that mockery and jesting should be prohibited whenever they express scorn for those in power. He warns: “most people enjoy amusement and jesting more than they should… a jest is a kind of mockery, and lawgivers forbid some kinds of mockery – perhaps they ought to have forbidden some kinds of jesting.”

Did Jesus ever laugh? This is a subject of vigorous religious debate, though God himself often laughed in anger in the Old Testament, and found laughter at his expense to be intolerable. In the Book of Kings, a group of youths laugh at the bald prophet Elisha, so God punishes them by unleashing two she-bears to kill them: they “came out of a wood and mauled forty-two of them.” In this vein, Thomas Hobbes viewed laughter as a warlike tactic: a weapon for asserting political power and dominance. He argues in The Elements of Law that “men laugh at the infirmities of others… For when a jest is broken upon ourselves, or friends of whose dishonour we participate, we never laugh thereat.”

If we’ve come a long way with our laughter since the English Civil Wars of the 1640s – learning to laugh in empathy, in playful recognition of absurdity, or out of sheer muscular relief – this message has since been lost on Donald Trump and Jeff Sessions.

Trump’s administration has been particularly paranoid when it comes to female mockery – evidenced by Trump’s repeated Twitter rants against feminist comedian Rosie O’Donnell, his promise that “Americans will thank [him] when Lena Dunham moves to Canada,” and his outrage at the very idea that Sean Spicer would be burlesqued by a woman in drag (i.e. Melissa McCarthy on Saturday Night Live). Like many authoritarian personalities, Trump associates laughter with weakness. His pandering to delusional fears that America’s participation in the Paris Climate Accord will make it “the laughing stock of the world” – that the “world is laughing at us” – is part and parcel of his warlike mania for never landing on the wrong side of a punch line.

Histories of female laughter and criminality

Although Fairooz’s case is singularly unfair and ridiculous, she is not the first woman in US history to be criminalized for laughing at the injustice of the law. In Puritanical New England, laughter could be used as evidence to prove women’s sinful covenant with the devil (especially during fasting or prayer times). Susannah Martin, who was executed for breastfeeding Satan with her “witch’s tit” (among other things), laughed at “such folly” during her interrogation. As Thomas Brattle remarked in his 1692 letter denouncing the Salem Witch Trials, “such folly” would make Salem the laughing stock of the entire world: they “will laugh at the demonstration, and conclude that the said S.G. [Salem gentlemen] are actually possessed, at least, with ignorance and folly.”

That female laughter would be treated as satanic in puritanical New England is not particularly surprising. (One woman was executed on evidence of her awkwardly hemmed coat.) Since the founding of America’s constitutional republic, the criminalization of female laughter has for the most part remained rare and exceptional. Modern societies have other means at their disposal for establishing female guilt and censoring anti-patriarchal pleasure. For example, etiquette manuals and advice columns widely instructed women to inhibit their laughter – lest they exhibit uncouth behavior or, more scandalously, uncontrollable physical convulsion.

Despite the obsessive social regulation of female bodies in public spaces, the rule of law was rarely deployed toward the specific end of suppressing female laughter. There were exceptions of course – in 1899, two women in Chicago were arrested for their laughter and disorderly conduct. “The trouble was caused by a new joke on the kissing bug,” a local newspaper reported, quoting the arresting officer: ‘and then they both laughed so loud they awoke the entire neighborhood.’” The presiding justice, who had a much better sense of humor than the judges of the Salem Witch Trials, observed: “well, I guess it certainly is a joke to arrest a person for laughing.” Both defendants were subsequently discharged.

The terror of female laughter

If you have never heard of gelotogynophobia, it is because I just made it up. But what is it? Well, if gynophobia refers to the extreme and irrational fear of women, and gelotophobia to the terror of being laughed at, then gelotogynophobia would be a handy (if not slightly awkward) term for the irrational fear of women’s laughter, or of being laughed at by a woman. As Virginia Woolf remarked in 1905, men so fear women’s laughter because, “like lightning, [it] shrivels them up and leaves the bones bare.” Or, as the Canadian novelist Margaret Atwood has put it, “Men are afraid that women will laugh at them. Women are afraid that men will kill them.”

Law Professor Tracy Thomas suggests that being laughed at by a woman is perhaps “one of [men’s] greatest fears.” She referenced a survey in our correspondence from Nancy Dowd’s The Man in Question, “where women report their greatest fear is rape and murder, while men’s greatest fear is being laughed at.” To this point, the journalist and American humorist, Helen Rowland, wrote in 1922 that “a man will forgive his wife for committing robbery, or murder, or breaking the Ten Commandments, yet threaten to leave her for laughing at the wrong moment" – should she be so fortunate that he doesn’t beat or kill her. In 1893, a New Haven court heard the divorce petition of Emma B. Phelps, who described the time “she laughed at her husband… and he ‘knocked her senseless’”. (Another time he threatened to kill her with a carving knife because she would not give him her watch.) 

In 1897, the Baltimore Sun reported a suicide in which a man blew himself up with dynamite after a woman rejected his marriage proposal by laughing at him. He “had a dynamite bomb with him and threatened that if the woman refused him he would blow himself to pieces. She laughed at him and he went to the stone yard, a block distant, and killed himself.” Lucky woman to have escaped the fate of Alice Henninger, who was murdered by Frederick Strube in 1903: he beat her “with a monkey wrench because she laughed at him when he pressed her to marry him.” (He was later arrested after burying her body.)

As Jacqueline Rose notes in Women in Dark Times, there is no positive correlation between women’s attainment of equal rights under the law and their protection from domestic violence and secret abuse. If legal punishment for feminist laughter remains exceptional, it is unknowable how many private laughs have resulted in the sexual assault, violent beating, and gruesome murder of women.

Intersectional laughing politics: race, class, and masculinity

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Jeff Sessions. Flickr/Ryan J. Reilly. CC-BY-2.0.While women’s laughter is widely suppressed through violence and intimidation, male laughter has been explicitly criminalized. If women’s laughter threatens male fantasies of power and virility, male laughter is often perceived as sexually predatory. For example, in 1894 a white man in Chicago was fined $25 for laughing at a woman in bicycle bloomers. Such laughter was regarded as a symptom of profound anxieties about sexually integrated public spaces that could make white women physically unsafe while depressing businesses that thrived on female patronage.

The expression of laughter, of course, carried strong class implications: the throaty guttural laughter of the working-class versus the refined melodious laughter of the bourgeoisie. Yet, it was often gents of the upper crust whose public laughter posed a special nuisance. Men were frequently ejected, and sometimes arrested, for laughing too boisterously at the theater. In 1929, four white teenage boys, all sons of prominent families, were arrested and forcibly removed from the Varsity Film Theatre in Evanston, Illinois, when the manager felt that “they laughed at the wrong time… and in a tone he didn’t like either. The show was not a comedy.” The decorum of laughing off genre was a highly controversial issue, and widely debated among journalists, critics, and social reformers.

Laughter has always been a double-edged sword for subverting minoritarian oppression.

The New York Times published an editorial on “The Right to Laugh" in 1907, after a man was arrested and fined for laughing too loudly during a tragic play. The author considers the relationship between genre and enjoyment, weighing the pleasures of collective tears against the man’s individual reaction of amusement. As he observes, “recent experiences on Broadway go to prove that the serious plays are often the funniest, and that the comedies are very often nearest tragedy.”

In the author’s account, female patronage is precisely why the sad reception of these shows must be policed and enforced. Against the somber ladies, who take excessive pleasure in tears (“women’s sobbing clubs” were incidentally a thing during this time), the author asks: “could not the prisoner have urged with equal justice that having gone to the theatre for a pleasant evening of laughter he had a right to be protected from the depressing influence of snivelers?”.

Second to the scandal of inappropriate laughter at the theater was the crisis of disruptive hilarity during church services. In 1868, national newspapers covered a series of incidents in Indiana involving multiple arrests of men who laughed aloud in church—and a similar cluster of episodes resulting in arrests afflicted Shasta County, California, in 1885. The church of Zion was actively bedeviled by uncontrollable male laughter. A notable example occurred in 1891, when Thomas Blount, “overcome by laughter…and prolonged merriment,” was vigorously removed by church officers “with such violence as to tear the clothes from him.”

Revealingly, the laughter erupted during a Law Professor’s lecture on “Frederick Douglass as a Diplomat.” (Who could have imagined the mirth that Douglass would still provoke in 2017, though in a very different context?) Notably, the journalist does not comment on the lecture’s actual topic (i.e. Douglass’ work and legacy), instead emphasizing the violence of Blount’s forced removal. The central problem of asserting the dignity and authority of the church is thus put into direct conflict with the speaker’s discussion of anti-racism and abolitionist diplomacy.

The racial politics of making laughter a crime bear special emphasis. The Washington Bee, an African American newspaper, put it bluntly in 1898: “It is against the law [for a black person] to laugh at a policeman in the street.” In 1899 in Trenton, New Jersey, “Louisa Roberts, a colored domestic” was fined $2 for “being disorderly on the street,” after “Patrolman Hutchinson arrested her for ‘sassing’ some white women.” Echoes of Roberts’ unruly laughter reverberated in 2015 when 11 women were forcibly ejected from a Napa Valley wine train for laughing out loud while participating in a book club (“Sistahs on the Reading Edge”), which spawned the viral Twitter hashtag #Laughingwhileblack. (For more on the racial politics of black female laughter, see Brandy Monk-Payton’s excellent article in Feminist Media Histories.)

Ralph Ellison writes of the Southern mythology of the “laughing barrel”: an actual barrel for black people to deposit their heads whenever they felt a laugh coming on. Inherited from slave plantations, this laughing barrel was meant to purify the civic sphere of the primitive irrationality assigned to black laughter in the segregated Jim Crow South. In this same essay, “An Extravagance of Laughter,” Ellison recounts his own experiences of being harassed by the Phenix City police force while an undergraduate at Tuskegee College in Alabama.

He emphasizes the “homeopathic power” of laughter to make “grotesque comedy out of the extremes to which whites would go to keep us in what they considered to be our ‘place.’” Ellison adds, “Once safe at Tuskegee, we would become almost hysterical as we recounted our adventures and laughed as much at ourselves as at the cops.” Yet laughter only goes so far toward disavowing the grim realities of structural racism: “My problem,” Ellison reflects, “was that I couldn’t completely dismiss such experiences with laughter.”

Laughter has always been a double-edged sword for subverting minoritarian oppression. This is particularly true of black laughter, given the racist imperatives for African Americans to perform as burlesque minstrels, Zip Coon dandies, and happy-go-lucky Sambos for white entertainment. The unthreatening idiocy of permanent black laughter was meant to assuage white terrors of any malice or resentment lurking beneath the surface.

Yet, to invoke Ellison again, even denigrated laughter can become indiscriminately contagious. At the scene of the Jim Crow laughing barrel, the abject absurdity of black bodies laughing uproariously with their heads stuck inside of whiskey casks became irresistible, causing whites then to “suffer the double embarrassment of laughing against their own God-given nature while being unsure of exactly why, or at what specifically, they were laughing.” As Ellison puts it, this “meant that somehow the Negro in the barrel had them over a barrel.”

Beyond the small-town square and back into the court room, an African American man named Sam Johnson was jailed in Gulfport, Mississippi in 1916 for laughing out loud in a circuit court during a seduction and adultery case. As the Gulfport Daily Herald commented, “Sam Johnson is a negro but he has never let his color bother him and believes in putting in a laugh on each and every occasion. But he misjudged the occasion this morning and had to pay the penalty of indiscretion.” This report suggests that Johnson’s laughter, not unlike Fairooz’s, appeared menacing not as such, but because it revealed itself as overly intentional. “First, he laughed when he thought Judge Neville was not looking at him. Then he grew careless and laughed anyway.”

Unlike the rowdy white boys in Evanston, Illinois, or the tormented theater patron who took too much comedic delight in melodramas, Johnson laughed on cue at the details of the seduction case. It was not the noise or even presence of his laughter that caused disruption, but the threat of what it might signify in a multiracial courtroom. The author concludes that if “the negro… ever laughs again it will be because he does not know it.” In other words, black laughter must remain completely guileless and unknowing (i.e. “out of the blue”), or else it will leave its laugher “all black and blue” (to invoke an old jazz song).

Just laughter or humorless injustice?

 “Arresting Someone for Laughing Might Sound Funny, But It’s No Joke,” James Bovard writes in The Washington Post. Bovard, a political reporter, compares Fairooz’s arrest to his own forced removal from the press box during a 1995 Supreme Court case. The case involved police no-knock procedures during drug busts (i.e. whether the police can enter without knocking to avoid the destruction of evidence).

During the trial, Justice Rehnquist had mocked one of the lawyers for his sneaky tactics; Rehnquist’s jest provoked a chorus of sanctioned laughter. In contrast, at one point Bovard laughed out loud in response to the defense lawyer’s use of absurdity to dismantle an irrational argument (i.e. reductio ad absurdum). The lawyer had reasoned: so “the more drugs you’ve got, the more right you have to an announcement.” Unlike Rehnquist, Bovard found this comment hilarious, and was soon ejected on a weak pretext for failing to comply with the dress code (he was wearing a Lord & Taylor dress shirt, but not a coat and tie).

Bovard warns us of the dangers of censoring laughter in official spaces: “while my ejection, and Fairooz’s case, may seem funny, it’s a dangerous precedent to permit the Justice Department to prosecute people who laugh during official proceedings. Will applause and raucous cheering be the only legally permitted noises that citizens can make while listening to politicians?”

Laughter, like the right of the people to peaceable assembly, is constitutionally protected by the First Amendment. To admonish laughter through the rule of law is not only unjust, it is absurd. Even if Aristotle and Hobbes (and in a very different vein, Jeff Sessions and Donald Trump) equate unwelcome laughter with pointed malice, who is to adjudicate the laughing threshold between involuntary eruption and intentional disruption? Fairooz’s laughter was both things simultaneously: automatic and motivated. But who could have resisted laughing at such an absurd punch line?

Who is to adjudicate the laughing threshold between involuntary eruption and intentional disruption?

Fairooz was charged on two counts with “Disruptive and Disorderly Conduct” and “Obstructing and Impeding Passage” on U.S. Capitol Grounds. The government then petitioned to enjoin Fairooz’s case with that of Tighe Barry and Lenny Bianchi, two other Code Pink protesters who were arrested for dressing up as Klansmen and waving banners, “KKK #1” and “Go Jeffie Boy.” Barry and Bianchi were also arrested on a third count of “Parades, Assemblages, and Displays Forbidden.”

According to the original government motion, “Defendant Ali-Fairooz… let out a loud burst of laughter, followed by a second louder burst of laughter. Capitol Police Officers then attempted to quietly escort Defendant Ali-Fairooz from the room, however, she grew loud and more disruptive, eventually halting the confirmation hearing. Her disruptive behavior included yelling that then Senator Sessions’ “voting record was evil” and waving a sign that read: “Support civil rights, stop [S]essions.”

Ariel Gold, the Code Pink campaign director who was sitting next to Fairooz at the time, has adamantly refuted the government’s accusation. Gold describes Fairooz’s laughs as “merely a reflex” and “fainter than a cough.” Evidently, her laughter did not interrupt Shelby’s speech (just watch the video), so much as undermine its authority for anyone within earshot.

Her behavior does not become actively disruptive to the proceedings until her forcible removal from the building (when, it is worth noting, Shelby’s comments had already concluded and Senator Susan Collins was then speaking). Evoking the mass arrests of suffragette protesters, who compared President Woodrow Wilson to the German Kaiser in 1917, Fairooz shouted: “I was going to be quiet and now you’re gonna have me arrested? For what?! For what?! You said something ridiculous.”

The sequence of transgressions becomes murky here, because these charges against Fairooz could only have applied after the fact – to her behavior upon forcible ejection, once her guilt had already been established by the security guards who were humiliatingly dragging her out of the room.

Either way, it is a slippery slope to tyranny when any laughter against the grain of state power can result in punitive arrest, unjust indictment, and unforetold sentencing. To invoke Senator Elizabeth Warren, whose forceful testimony against Jeff Sessions was also silenced when she attempted to read aloud from a 1986 letter by Coretta Scott King, “They can shut me up, but they can’t change the truth.”

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