This article was first published in the Open Library of Humanities.
How can judges draw a line between innocent jokes and potentially harmful ones? Due to its inherent link with ambiguity, humor is an extremely arduous testing ground for the legal regulation of freedom of expression—all the more so in the case of cartoons and other forms of highly condensed, predominantly visual humor. The juridical challenges presented by humorous expression are particularly topical in the digital age, as shown by the mediatic impact of recent humor scandals from Jyllands-Posten to Charlie Hebdo; nevertheless, the potential for interdisciplinary dialogue between law and humor studies is still strikingly underexplored. This paper aims to contribute to the development of forensic humor studies by analyzing a corpus of 10 rulings delivered by the European Court of Human Rights (ECtHR), revolving around controversial examples of predominantly visual humor. After identifying the criteria underpinning the selected judgements and discussing the problems posed by the current ECtHR approach, the present study sets out to illustrate how insights coming from humor studies can prove instrumental in tackling those problems. Building on theoretical models proposed by Wayne Booth and Paul Simpson, it will be argued that a closer dialogue with humor studies can be of particular help to judges dealing with three key questions: does the impugned text clearly signal its humorous or satirical intent? What is the aim or message hiding behind the humorous surface? And to what extent should the author be held accountable for different (and potentially dangerous) interpretations of the same text?
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