The writer E.B. White said that analyzing humor is like dissecting a frog: You learn how it works but the frog dies in the process. If that’s true, consider nine of Jad Sleiman’s jokes dead — picked apart by an arbitrator’s scalpel and forceps for anything that “could conceivably be interpreted as inflammatory even by highly sensitive and thin-skinned individuals without an appreciation for irony or satire.” Yikes.
Sleiman was fired from his day job in public radio based on the content of his stand-up comedy. But he fought back. In a Dec. 28 decision, the arbitrator ordered Sleiman’s employer to reinstate him, finding Sleiman was denied due process and most of his jokes were “inflammatory” but not so “egregious” as to justify immediate dismissal under the parties’ collective bargaining agreement.
A former Marine, Sleiman served as a combat correspondent in Africa and Europe and later worked as a civilian war reporter in countries like Iraq and Afghanistan. In 2018, he joined Philadelphia’s local NPR affiliate, WHYY, to produce reports for the station’s health and science program, “The Pulse.” Three years later, Sleiman began performing stand-up on the side, drawing in part from his experience in the Marines and his upbringing in a Muslim family. He used the stage name “Jad S.” and would also post clips of his act on Instagram under the username “jadslay.”
Sleiman’s direct supervisor was aware of his comedy moonlighting and even “liked” Instagram posts featuring his bits. But things went south when Sleiman’s act came to the attention of WHYY’s upper management, which found his material “egregious” and said it had “sexual connotations, racial connotations, and misogynistic information.” Last January, WHYY fired Sleiman without warning for violating its social media policy, which dictates that “employees must take care that their postings cannot be interpreted as inflammatory.” Sleiman, who has multiple sclerosis, told Vice that WHYY cut off his health insurance the same day and “went and deleted all my work from the site, every single possible clip I could try to use to get a job.”
The station also tried to deny Sleiman unemployment compensation, but a state review board determined he was entitled to it because he didn’t commit “willful misconduct.” While the board found his material “controversial” and noted it “contained terms certain persons could find offensive,” it concluded the “obvious theme of his performances (in this record) was social unfairness and hypocrisy rather than discrimination.”
But Sleiman wanted his job back.
Represented by his SAG-AFTRA union, Sleiman went before an arbitrator and argued his abrupt termination violated the union’s collective bargaining agreement with WHYY. But the station seemed to really want Sleiman to stay fired for telling jokes. It sent two attorneys from the large Philadelphia law firm Duane Morris, including the firm’s vice chairman, to the arbitration hearings to argue the termination was justified.
As Sleiman read the arbitrator’s decision scrutinizing his stand-up, he might have felt a little like pioneering comedian Lenny Bruce. “I find that the message of the clip, if one is open to receiving it, cannot be interpreted to be inflammatory,” read part of the decision about one joke. “On the other hand, mere mention of a whorehouse, whores and a slut, can be interpreted as inflammatory, as can his reference to those of our founding fathers who owned and slept with slaves.”
In the 1960s, Bruce sat through multiple obscenity trials during which prosecution witnesses humorlessly assessed the value and decency of his act. Was Bruce’s language sexually arousing? Did it violate local community standards? You know, standard questions posed by people who must have been fun at parties.
In another clip, Sleiman, whose parents are from the Middle East, jokes about how women have “no retirement age for looking hot in the West,” and said he wants to “start a rescue charity that helps women of a certain age move to Saudi Arabia,” where they don’t have to use Botox or dye their hair. The arbitrator wrote: “The first half is hardly inflammatory, suggesting that Americans encourage Muslim refugees to treat their women better, and that women in the west are generally treated better than in Muslim countries, at least for a while.”
Phew! But wait…
He then states: “American women have to be as fuckable as possible until they’re dead, which I don’t think is fair.” Although the first clause is debatable and grossly articulated, the second clause plainly states that Grievant believes it to be unfair, so any claim that the clip shows him to be demeaning women in the clip, as charged by management, is patently unfair and untrue. On the other hand, the use of the word “fuckable” when applied to elderly women approaching their grave can be interpreted as mildly inflammatory.
The decision continues like this for 10 pages, soberly analyzing jokes with racial, sexual, and religious themes, and even commenting on whether they are funny. That’s a lot of dissected frogs. Although the arbitrator ordered WHYY to reinstate Sleiman primarily on procedural grounds, the decision also found something “inflammatory” in each of Sleiman’s videos and ordered him to delete them from his social media accounts as a condition of reinstatement. Under the ruling, additional posts that violate the station’s social media policy could justify termination.
To be sure, WHYY is a private organization, so it isn’t bound by the First Amendment. (Its receipt of public funding doesn’t trigger First Amendment protections). The station has freedom of association to hire and fire whom it pleases, subject to certain limits imposed by statute (for example, nondiscrimination laws) and the employment contracts it voluntarily enters.
But while freedom of association is an essential right, as FIRE recently commented on the wave of firings over speech about the Israel-Hamas war, “we shouldn’t ignore the climate of fear and mass self-censorship that arises when people know their paycheck depends on hiding their political opinions in and outside of work, even when those opinions have nothing to do with their job or the mission of their employer.” Sleiman used pseudonyms on stage and online and never identified his employer, but even that didn’t save him.
If every private employer enforced an off-hours speech policy as vague and subjective as WHYY’s, it’s hard to imagine many employees would risk talking honestly about contentious social or political issues online, let alone take the stage at a local comedy club. After all, comedy is often irreverent and at times vulgar and provocative, tackling controversial topics and societal taboos. Restrictions on “offensive” or “inflammatory” speech — which the arbitrator called an “extraordinarily low bar” — are fatal to all but the cleanest routines.
Broad, nebulous policies like WHYY’s don’t help. They breed censorship envy that drags everyone down a slippery slope of ever-tightening speech constraints.
Many, if not most, famous comedians worked day jobs early in their careers while cutting their teeth at local comedy clubs at night. Chris Rock was a dishwasher at Red Lobster. Jim Gaffigan worked at an advertising firm. Rodney Dangerfield sold aluminum siding. Imagine a young Jerry Seinfeld losing his job as a waiter after joking about the fattest man in the world.
Many of today’s aspiring comedians likewise need a way to pay the bills while honing their craft at open mics and small gigs. They also increasingly rely on social media to showcase their work and attract a following. But social media is a double-edged sword. While it has revolutionized Americans’ ability to reach a mass audience, it has also made it easier for employers to monitor their staff’s speech outside the workplace, and for the easily offended to organize pressure campaigns to get someone fired over a joke. FIRE’s still-timely 2015 documentary “Can We Take a Joke?” explores how our culture is less and less tolerant of comedy that pushes boundaries.
Broad, nebulous policies like WHYY’s don’t help. They breed censorship envy that drags everyone down a slippery slope of ever-tightening speech constraints. When people see someone punished for speech they think is benign, an unfortunately common reaction is to push for punishment of speech they don’t like as well. And the downward spiral continues, expanding the boundaries of forbidden expression.
That’s terrible news for comedians like Sleiman, who will have to decide whether to keep doing stand-up and posting clips online after he returns to work. He may be bold enough to take that risk, but others may not be. And the greater the number of Americans who fear losing their livelihoods for speaking their minds, the more we’ll lose out on valuable contributions to comedy, to our national political conversation, and to many other realms of discourse.
Who knows? Maybe WHYY’s management will lighten up. As Sleiman said when they fired him, “Isn’t the laughter proof you’re overreacting?”
Let the frogs live.