Of Satire and Sanitiser — Why Free Speech Can't Be Made Neat

Writing on the Voelkerrechtsblog, Tanmay Durani defends the ECHR’s judgement in Yevstifeyev and Others v. Russia, treating it as a principled stand for satirical speech in digital spaces. He argues, first, that the “reasonable-reader” standard should govern interpretation on mass platforms like Instagram, and second, that hateful audience reactions (unless causally linked to the speech) should remain largely irrelevant (This is, conceptually speaking, a broad characterisation of his submission for the purposes of this response; for a better understanding of his argumentative texture, readers are encouraged to turn to Durani’s original writing).

In this essay, I do not intend on engaging with the facts of Yevstifeyev, nor do I seek to contest the merits of the judgement. Instead, it is a rebuttal in the realm of theory.

I question three assumptions that seem to underpin Durani’s defence: (1) that audience interpretation can be objectively abstracted through a standard of reasonableness, (2) that satire can be immunised by virtue of its discursive intent, and (3) that harm requires an evidentiary proximity to expression. Each of these assumptions, as I would argue, narrow the scope of what free speech theory ought to account for. And in so doing, oversimplies the complexity on which satire truly operates.

1. Reasonableness and Audience

Durani’s endorsement of the “reasonable-reader” standard as a default tool for interpreting satire on digital platforms rests on the belief that it provides a neutral yardstick. This, he argues, is especially useful in the context of fragmented and heterogeneous online audiences, where interpretive responses are varied and unpredictable. But the claim that reasonableness can meaningfully abstract or stabilise audience meaning in such environments is conceptually problematic.

The difficulty is that the “reasonable reader” is not a self-evident figure. It is a construct. As Stanley Fish argues, meaning is understood as something which is constructed within specific "interpretive communities." Fish's idea can be figuratively compared to the game "Telephone." Just as a message whispered from person to person can change and evolve as it passes through different participants, the meaning of a text is constantly constructed and reconstructed by the interpretive community that engages with it. 

Expression, then, derives its meaning not from the content or authorial intent, but from how it is received within these communities. In digital spaces, however, there is no stable interpretive community. Posts on Instagram or X reach multiple overlapping publics, each with different predispositions. The idea that there exists a single reasonable viewer across this fragmented landscape is deeply normative, and an ultimately misleading understanding of audience.

This matters because it undermines the neutrality Durani attributes to the “reasonable-reader” standard. His argument assumes that it can smooth over the volatility of digital speech by providing a stable benchmark. But in doing so, it sidesteps the real complexity of how meaning is formed and contested across diverse and often disconnected online audiences. Rather than clarifying how satire is actually received, the standard flattens a wide spectrum of readings into a single, imagined rational viewer.

To be clear, the argument here is not that all subjective reactions should determine legality. But if audience reception plays a constitutive role in how speech acquires meaning, then any interpretive approach must be sensitive to that instability. The “reasonable-reader” test, as Durani defends it, imagines a coherent and unified interpretive community where none exists. Meaning in digital spaces is almost always refracted, and can never be practically contained within tidy constructs. Hence, I submit, that any standard which leans too heavily on such abstractions end up misdescribing the very ecosystem it seeks to regulate.

2. Discursive Intent as Defence

A second pillar of Durani’s defence lies in the idea that satire, by virtue of its discursive intent, deserves a heightened degree of immunity. His reasoning appears to be that satire’s function is to provoke, subvert, or critique power structures, and that this orientation ought to weigh heavily in favour of its protection. While this view has some intuitive appeal, especially in liberal traditions that associate satire with democratic dissent (see here, here, and here), it raises serious concerns when applied to digital expression.

The first issue is that of proving or even identifying discursive intent. Often, the tone is deliberately kept ambiguous. The genre thrives on distance between what is said and what is meant. This ambiguity is the very feature that makes satire powerful, but also difficult to assess. If the law requires an evaluation of intent, it will either read into the expression what it wants to find, or accept the speaker’s post hoc justification at face value. In either case, the analysis becomes detached from the realities in which meaning is received.

A second concern is that overemphasis on intent can obscure the potential of satire to cause harm, especially where the content traffics in racial, gendered, or communal stereotypes. Not all satire is progressive or emancipatory. Some reinforce dominant ideologies or cloak exclusionary narratives in irony. To suggest that such speech should enjoy a greater degree of insulation from scrutiny, solely because it was satirical in form or aspiration, is to misread both its function and effect. Discursive intent may indeed reflect a benign or noble purpose, but whether that purpose always operates in favour of public discourse is normatively contestable.
What is perhaps needed, is a more context-sensitive approach that places discursive intent within a broader matrix of factors. Judicial valuation should consider not only the purpose behind the speech, but also its form, audience, sociopolitical context, and effects. Again, this does not mean collapsing into subjectivity, but rather acknowledging that meaning is co-produced between the speaker and the public. The task, then, would be not to discard intent, but to recalibrate its role within a more plural and situated theory of expressive evaluation.

3. Causation and the Concept of Harm

The third assumption underlying Durani’s defence is that harm, in order to carry normative weight, must be proximally traceable to the expression in question. This principle distinguishes between offensive and harmful speech, and demands a clear causal link between speech and its alleged effects before consequences can follow. Within this model, vague or diffuse harms, especially those mediated through audience reaction, are treated with caution. 

The threshold problem is that in digital spaces, the relationship between speech and harm is rarely linear. Platforms like Instagram or X encourage virality, rapid uptake, and algorithmic amplification. Satirical content often travels far beyond its original context, acquiring new meanings, intensities, and audiences. Harms, then, become cumulative. They may arise not from the speech alone, but from the interpretive practices and social dynamics it activates. Requiring a tight evidentiary link between expression and harm in such settings risk mischaracterising how injury actually emerges.

Second, the demand for causal proximity privileges a model of harm that is largely individualised and immediate. It tends to overlook structural or community-level injuries that satire can sometimes perpetuate. For example, satire that trades in racial or gender stereotypes may reinforce patterns of marginalisation without directly targeting an identifiable individual. The harm here is not always traceable to a single event, but is nonetheless real in its cumulative effects. A strict evidentiary standard risks making such harms invisible.

At the same time, a purely reception-based model of harm would risk collapsing into subjectivism. Not all audience reactions can ground responsibility, and courts must be cautious not to overcorrect by treating all offences as harm. What is required, therefore, is a more nuanced account that understands harm not only as a consequence of speaker intent or audience outrage, but as a socially situated process involving power, context, and the structure of public discourse. In this view, the inquiry should shift from identifying direct causality to assessing whether the expression reasonably contributes to a broader ecology of harm. This does not lower the threshold of proof but reorients it to the actual dynamics of meaning-making in digital spaces.

To Conclude

This essay has questioned (1) the neutrality of the reasonable-reader standard, (2) the weight accorded to discursive intent, and (3) the proximity-based model of harm in free speech theory. Each of these assumptions, while attractive, fail to take into account the fractured, refracted, and structurally unequal nature of digital satire. 

Perhaps a more defensible theory must move beyond abstraction and attend to how meaning is made, circulated, and contested in real life.