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Did Stephen Colbert Cross a Free Speech Line at the White House Correspondents' Dinner? And If So, What Defined the Line?

Tuesday, May. 09, 2006

Stephen Colbert's April 30th keynote address to the White House Correspondents' Association Dinner continues to spark commentary even now, more than a week later - with the video and the transcript still widely circulated on the Internet. Why?

One reason the story has had "legs," it seems, is the contention that Colbert crossed an invisible line, and the retort that either such a line shouldn't exist, or that Colbert was entitled to cross it. (For those unfamiliar with Colbert, he's the satirical host of "The Colbert Report" -- a parody of a pundit show, lampooning the likes of Fox's "The O'Reilly Factor" and MSNBC's "Scarborough Country" -- appearing four nights a week on the cable network Comedy Central.)

Interestingly, Bush supporters aren't alone in claiming that Colbert went too far in his routine. Indeed, even Democratic House Minority Whip Steny Hoyer said, "I thought some of it was funny, but I think it got a little rough. He is the President of the United States, and he deserves some respect." Hoyer felt Colbert "crossed the line" with many jokes that were "in bad taste."

In this column, I'll draw on ideas from First Amendment doctrine to try to explain many people's intuition that Colbert crossed a line, but also, using the same doctrine, I will argue that Colbert's performance reaffirms the importance and power of parody to free speech and public debate.

Was The president Effectively a Captive Audience?

I think part of the intuition arises from the fact that the unhappy - and seemingly insulted - president couldn't practicably leave while the speech was going on.

Recently, Michael Dorf wrote a perceptive column for this site on the role of the "captive audience" in First Amendment doctrine. As Dorf suggests, an audience may be deemed "captive," in free speech doctrine, when its attendance is either legally required (Dorf's example is teens' attendance at public school), or socially required (Dorf's example is family members' attendance at a funeral). Speakers' First Amendment rights to reach the ears of such audiences may be less than their rights to reach the ears of, say, passersby in the public square.

The Correspondents' Dinner was the rare instance where the president was himself a captive audience of one. By comparison, the president has the ability to stop taking questions at a press conference at any time, or simply to send new White House Press Secretary Tony Snow to field questions on his behalf. (Even presidential candidates can now be insulated from criticism - thanks to "free speech zones" at conventions, which I wrote about in a prior column.)

But the president could not have fled Colbert's speech, except at great cost. The Correspondents' Dinner was being broadcast on C-SPAN, with the media attending in full force. And there has long been a presumption that, at the dinner, the president will take the mockery handed out graciously. In sum, the president doesn't really have the option to leave the Correspondents' Dinner: Whatever happens, the tradition is that he must grin and bear it.

At some point, though, Bush stopped grinning and, by most accounts, looked annoyed; Salon's Michael Scherer described him as "tight-lipped," and warned that Colbert, who'd violated the protocol of a typically "fawning" event, was unlikely to be invited back.

I think the "captive audience" aspect of the event was one reason why Colbert's speech had the breath-holding, sickening/thrilling quality of wedding speeches that tread much too close to the bone. The audience could almost be overheard wondering to themselves, "What will he say next, and what will his target do?" And the president was just as unlikely to walk off the podium, as a bride and groom would be to walk out of their own reception.

Was Colbert's Speech a Comedy Routine, or a Political Attack?

Many observers intuitively feel that the president suffered a political attack, rather than merely enduring a comedy routine.

As Americans, we're used to comedy that is observational - aren't people funny? -- not comedy that is pointed: Isn't the president ignorant and out of touch with reality? We're also not used to satire - as Scherer points out in his piece. Indeed, Scherer himself goes back to "the Situationists in France" to find a fit parallel for Colbert's "ironic mockery."

Moreover, we are used to comedy routines that string together bite-sized, stand-alone jokes - routines that can be reduced to individual "bits" -- not themed attacks like Colbert's, where one joke refers back to the next, and jokes are repeated, with variations.

Colbert was relentless. He repeatedly targeted, for instance, Bush's 32% approval rating. Indeed, Colbert even suggested that the president's scant remaining support is worthless, advising him, "Sir, pay no attention to the people who say the glass is half empty, because 32% means it's 2/3 empty. There's still some liquid in that glass is my point, but I wouldn't drink it. The last third is usually backwash."

A little later, Colbert flipped the statistic - referring to the disapproving 68%: "Don't pay attention to the approval ratings that say 68% of Americans disapprove of the job this man is doing. I ask you this, does that not also logically mean that 68% approve of the job he's not doing?"

Colbert also repeatedly suggested that the president ignores facts ("Events can change; this man's beliefs never will."), that he doesn't read books, and that his embattled Administration is only headed for further, worse trouble.

In sum, with the president effectively trapped, and at his mercy, Colbert chose to inflict blows upon bruises - smashing Bush at length on topics that must already smart, from Iraq war debacles, to warrantless wiretapping, to the Valerie Plame scandal, where allegations have now reached up to the level of the president and Vice president themselves.

If the Speech Was an Attack, Was it Fair to Launch It In A Setting Where The president Couldn't Leave?

Colbert launched his vituperative parody when there was no forum for the president - or anyone speaking on his behalf - to reply. Again, First Amendment doctrine seems relevant: While concepts like "equal time" now seem relics of the Sixties and Seventies, and the FCC long ago junked the "fairness doctrine," we still remain more comfortable with harsh speech when the target has a chance to quickly respond.

All else being equal, the situation would seem especially unfair in First Amendment terms because the brand of irony of which Colbert is a master serves -- as Scherer points out, quoting David Foster Wallace - "an almost exclusively negative function" for which there is no easy response.

However, all else is not equal. The president, with his "bully pulpit," has a platform from which to command attention, and a national audience, as no other individual can. If he decides to address the nation, his remarks will be televised on all networks, and will pre-empt other programs.

Not only does the Bush Administration command an audience virtually at will, but this particular administration has controlled criticism and discussion to a remarkable degree. To cite but a few examples: during his campaigns and in promoting his major initiatives, the president has held scripted "town meetings" in which the audiences are carefully screened so there's little chance of critical questions; he has censored scientific reports of the Environmental Protection Agency and NASA that don't toe the Administration line about global warming; and he has held the fewest number of press conferences of any modern president.

Considering the extensive limitations imposed on the ability to question or criticize this president, it is understandable that given the once-in-a-lifetime opportunity to publicly roast him, Colbert seized it. Colbert's in-the-President's-face parody followed the tradition of Nineteenth and early Twentieth Century political cartoonists whose caustic renderings of public figures and officials were devastating, as the newspapers they were printed in were the near-exclusive sources for the public's news.

As the late Chief Justice Rehnquist recognized, in discussing Nineteenth Century political cartoonist Thomas Nast, "The success of the Nast cartoon was achieved 'because of the emotional impact of its presentation. It continuously goes beyond the bounds of good taste and conventional manners.'" According to Rehnquist, despite the caustic nature of such satires - ridiculing the presidents of the time - they "played a prominent role in public and political debate" and "[f]rom the viewpoint of history it is clear that our political discourse would have been considerably poorer without them."

Despite the caustic nature of Colbert's satire, it is clear that given the extent to which the Bush Administration, elected officials, the news media, pundits, and the public have continued to talk about and debate his keynote -- more than a week after Colbert delivered it - Colbert, like Nast before him, has enriched our political discourse.

That he did so with the president as a captive audience may have defied protocol, but in light of the protocols regarding public debate that this president has defied, it should be viewed as fair play.

In the end, we shouldn't so automatically accept contentions like Hoyer's claim that "He is the president of the United States, and he deserves some respect." Respect ought to be based on what one does and says, not on the office one occupies. And even when the president deserves respect, he must also be accountable. Seeking to hold a president accountable through use of a caustic parody that exploits politically embarrassing events is in the best tradition of the First Amendment and encourages the robust public debate democracy requires.

Julie Hilden, a FindLaw columnist, graduated from Yale Law School. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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