It’s widely said that Donald Trump is a clown. As he sits atop the polls, I’m intrigued by the perverse power of that clowning in shaping his success. Part of his popularity seems grounded in the ritual practices of the culture wars—for Donald Trump is not just a joke, he’s the embodiment of the politically incorrect joke, for which the customary response to umbrage is: “Don’t you have a sense of humor?” If the debate goes further, it usually becomes snagged upon First Amendment absolutism, proceeding in endless circles about one’s right to speak.

No doubt there’s a broad legal right to say all kinds of awful things. My concern is with silence: what we’re not saying while we’re busy defending “funny” political bullying. This is of particular concern in situations where politicians or other public servants use government resources to express prejudice. A recently disclosed cache of pornographic, racist, and misogynistic e-mails exchanged among members of Pennsylvania’s law-enforcement community—including judges, prosecutors, and police—has rightly been condemned for “making fun of” or “mocking” gays, blacks, Mexicans, and women; the too-predictable response of those involved has been an appeal to absolution-by-laughter.

Similarly, it is troubling when alleged attempts at humor are used to mask the breaches of fiduciary duty owed to dependents or the incapacitated. ProPublica recently documented the rising use by healthcare workers of Snapchat and other social media to publish “funny” pictures of nursing-home patients in states of undress or on the toilet or in death. “They blew it all out of proportion,” grumbled one nursing assistant who’d posted pictures and couldn’t see what all the fuss was about. “It was just a picture of her butt…”

Public insults shaped as jokes do at least two things. First, they evade intentionality (including culpability for violations like invasion of privacy, harassment, or defamation): “I didn’t mean it!” goes the cry. Second, they disguise provocation and threat in the bubble wrap of not-meaning. In that allowance, we ritualize very old hierarchies: revulsions about blood, class, status, lineage, bodily emissions, aesthetics, and just deserts. Take a fraternity holding slave auctions in blackface and then shrugging off criticism as the whining of coddled, effete, elitist, wussy crybabies. Cruelty sheathed in glee and presented ironically is imposed more efficiently than cruelty alone.

“Irony” literally means dissimulation, dissembling, feigned ignorance: The surface appears different from what is meant. It sets up a winking hierarchy dependent on a double audience: one who supposedly hears but doesn’t understand, plus another, superior audience that not only catches that extra quantum of “more than meets the ear” but also sees the other’s incomprehension and is amused.

Understanding the deeper, nonliteral meaning of an ironic or sarcastic joke requires second-order interpretive thinking, which is why people with damage to the prefrontal cortex or parahippocampal gyrus have particular difficulty grasping its tonal subtleties. (For example, the character Sheldon Cooper in The Big Bang Theory has great trouble with layered humor.) This subtlety tends to be culturally specific and difficult to translate. It’s why we sometimes identify the dynamics of public insult as “coded”—as when we acknowledge that Trump may not mean every stupid thing he says but is instead signaling deeper sympathies to particular subgroups of disaffected voters. This is also why his facial tics—the jutting boxer’s chin, the eye-rolling gymnastics, the tightly sneering lips—always inspire flurried Internet postings featuring his “hysterical” facial expressions. Those expressions telegraph meaning at the symbolic and affective level, and they deserve to be read as closely as his words.

Trump crafts confrontation with this minstrelsy: He structures his most offensive smackdowns as insider jokes, with outsiders positioned as ridiculous and ignorant of their greater meaning. His “play” with the tropes of racism, nativism, and misogyny operate as theatrical, norm-building disavowals of equality and integration, even as they seem to offer a promise that we could all be in on the joke if only you, the humorless ones, would join him in the open democracy of “just a harmless josh.” This is undoubtedly what Putin gets when he calls Trump “brilliant.”

Most humor depends on a triangulated relationship among the speaker of a joke, the referenced object (or butt) of the joke, and an implicit demand for responsive action. The action demanded is usually laughter, but when malice is involved, the demand may also include public disparagement amounting to stigma. Our jurisprudence focuses almost exclusively upon the speech rights of the joker, eschewing engagement with the second-order inflections of public insult, because we genuinely don’t want to censor meanings that might be other than they seem. Occasionally, courts also focus on the injured status of the joke’s butt. But our collective response rarely recognizes the third element: that coded demand for action. When the demand isn’t just to laugh but to humiliate, to degrade, and to expel the offending object from the body politic, we must recognize another, more poisonous dimension to the demand: that some of us give up speaking in support of the oppressed, or the derided, just because there’s a “right” to be a demonic clown.

Donald Trump is a masterful manipulator of divisive sensibilities in a culture that has little literacy about the political evocation of deep feeling. But our individual quiescence gives way to collective passivity, which in turn allows a diminishment of civil discourse, a vulnerability of the commons, and a growing disrespect for diplomacy, history, logic, or human dignity. Nowhere does the First Amendment demand that we swallow bigotry by “lightening up” or “toughing it out.”