Tom Sullivan over at Digby’s Place has a must-read on how The Onion is stepping up to file an Amicus Brief at the Supreme Court in the case of Novak vs. Parma.
Satirical news site The Onion filed an amicus brief with the Supreme Court in the case of an Ohio man arrested in 2016 for creating a Facebook page parodying Parma, Ohio’s police department’s page. It’s slogan? “We no crime.”
Police charged Anthony Novak with a felony. A public interest law firm explains:
The Parma Police Department did not appreciate Anthony’s criticism. Citing 11 calls that Parma residents made to a nonemergency line to either ask about or tattle on Anthony’s parody page, police obtained a warrant for his arrest, searched his apartment, seized his electronics, and charged him with a felony under an Ohio law that criminalizes using a computer to “disrupt” “police operations.” Anthony had to spend four days in jail before making bail. He was prosecuted, but after a full criminal trial, a jury found him not guilty.
But when Anthony tried to vindicate his rights by filing a civil-rights lawsuit, the 6th U.S. Circuit Court of Appeals refused to hold the police officers accountable for their actions. Despite the clear violation of Anthony’s First and Fourth Amendment rights, the Sixth Circuit granted the officers qualified immunity—a doctrine that the Supreme Court invented in the 1980s to protect government officials from being sued for unconstitutional conduct. As a result, Anthony’s case was thrown out.
emphasis added
The Onion specializes in publishing parody news stories; they have an obvious interest in not going to jail because the authorities are too stupid to recognize parody — or because they don’t like being fun of them being made.
The amicus brief makes some serious legal points, but also pokes fun at the pretentious prose of the legal profession and the courts.
...The Onion files this brief to protect its continued ability to create fiction that may ultimately merge into reality. As the globe’s premier parodists, The Onion’s writers also have a self-serving interest in preventing political authorities from imprisoning humorists. This brief is submitted in the interest of at least mitigating their future punishment.
INTRODUCTION AND SUMMARY OF ARGUMENT
Americans can be put in jail for poking fun at the government? This was a surprise to America’s Finest News Source and an uncomfortable learning experience for its editorial team. Indeed, “Ohio Police Officers Arrest, Prosecute Man Who Made Fun of Them on Facebook” might sound like a headline ripped from the front pages of The Onion—albeit one that’s considerably less amusing because its subjects are real. So, when The Onion learned about the Sixth Circuit’s ruling in this case, it became justifiably concerned.
First, the obvious: The Onion’s business model was threatened. This was only the latest occasion on which the absurdity of actual events managed to eclipse what The Onion’s staff could make up. Much more of this, and the front page of The Onion would be indistin- guishable from The New York Times.
Second, The Onion regularly pokes its finger in the eyes of repressive and authoritarian regimes, such as the Islamic Republic of Iran, the Democratic People’s Republic of North Korea, and domestic presidential administrations. So The Onion’s professional parodists were less than enthralled to be confronted with a legal ruling that fails to hold government actors accountable for jailing and prosecuting a would-be humorist simply for making fun of them.
Third, the Sixth Circuit’s ruling imperils an ancient form of discourse. The court’s decision suggests that parodists are in the clear only if they pop the balloon in advance by warning their audience that their parody is not true. But some forms of comedy don’t work unless the comedian is able to tell the joke with a straight face. Parody is the quintessential example. Parodists intentionally inhabit the rhetorical form of their target in order to exaggerate or implode it—and by doing so demonstrate the target’s illogic or absurdity.
Put simply, for parody to work, it has to plausibly mimic the original. The Sixth Circuit’s decision in this case would condition the First Amendment’s protection for parody upon a requirement that parodists explicitly say, up-front, that their work is nothing more than an elaborate fiction. But that would strip parody of the very thing that makes it function.
The Onion cannot stand idly by in the face of a ruling that threatens to disembowel a form of rhetoric that has existed for millennia, that is particularly potent in the realm of political debate, and that, purely incidentally, forms the basis of The Onion’s writers’ paychecks...
The line between parody and straight argumentation is blurred because so much of the way courts go about their business incorporates things that practically parody themselves, as per:
IV. It Should Be Obvious That Parodists Cannot Be Prosecuted For Telling A Joke With A Straight Face.
This is the fifteenth page of a convoluted legal fil- ing intended to deconstruct the societal implications of parody, so the reader’s attention is almost certainly wandering. That’s understandable. So here is a paragraph of gripping legal analysis to ensure that every jurist who reads this brief is appropriately impressed by the logic of its argument and the lucidity of its prose: Bona vacantia. De bonis asportatis. Writ of certiorari. De minimis. Jus accrescendi. Forum non conveniens.Corpus juris. Ad hominem tu quoque. Post hoc ergo propter hoc. Quod est demonstrandum. Actus reus. Scandalum magnatum. Pactum reservati dominii.
See what happened? This brief itself went from a discussion of parody’s function—and the quite serious historical and legal arguments in favor of strong protections for parodic speech—to a curveball mocking the way legalese can be both impenetrably boring and belie the hollowness of a legal position. That’s the setup and punchline idea again. It would not have worked quite as well if this brief had said the following: “Hello there, reader, we are about to write an amicus brief about the value of parody. Buckle up, because we’re going to be doing some fairly outré things, including commenting on this text’s form itself!”
It remains to be seen how this will fly before a Republican Supreme Court. The conservative idea of humor seems closer to laughing over the bodies of their enemies and drinking the tears of their women and children than it does to appreciating clever word play. Or, for a less hypothetical example, lying to people so they can be shipped off to Martha’s Vineyard in a cruel political stunt in the vain hope of embarrassing political enemies.
The chief way Republicans use humor is when they are caught out doing or saying something horrible and respond with “I was only joking.”
Read the whole amicus brief. It’s a keeper.
The Onion intends to continue its socially valuable role bringing the disinfectant of sunlight into the halls of power. See Buckley v. Valeo, 424 U.S. 1, 67 (1976) (quoting Louis D. Brandeis, Other People’s Money and How the Bankers Use It 62 (National Home Library Foundation ed. 1933)). And it would vastly prefer that sunlight not to be measured out to its writers in 15- minute increments in an exercise yard.
Oh, and in case you were wondering,
Tu stultus es. You are dumb. These three Latin words have been The Onion’s motto and guiding light since it was founded in 1988 as America’s Finest News Source, leading its writers toward the paper’s singular purpose of pointing out that its readers are deeply gullible people. The Onion’s motto is central to this brief for two important reasons. First, it’s Latin. And The Onion knows that the federal judiciary is staffed entirely by total Latin dorks: They quote Catullus in the original Latin in chambers. They sweetly whisper “stare decisis” into their spouses’ ears. They mutter “cui bono” under their breath while picking up after their neighbors’ dogs. So The Onion knew that, unless it pointed to a suitably Latin rallying cry, its brief would be operating far outside the Court’s vernacular.
Wednesday, Oct 5, 2022 · 2:14:11 PM +00:00 · xaxnar
UPDATE: The NY Times article on The Onion’s defense of parody was on their ‘most-popular’ list of articles drawing attention at one point. An excerpt:
It pointed to The Onion’s history of blatantly ridiculous headlines: “Fall Canceled After 3 Billion Seasons.” “Children, Creepy Middle-Aged Weirdos Swept Up in Harry Potter Craze.” “Kitten Thinks of Nothing but Murder All Day.” A footnote reads “See Mar-a-Lago Assistant Manager Wondering if Anyone Coming to Collect Nuclear Briefcase from Lost and Found, The Onion, Mar. 27, 2017.”
Sometimes, of course, discerning which headlines are parody is not always easy. It has become customary for people on social media to attach the disclaimer #NotTheOnion when a news item seems too strange to be true. (“Indeed, ‘Ohio Police Officers Arrest, Prosecute Man Who Made Fun of Them on Facebook’ might sound like a headline ripped from the front pages of The Onion,” the brief said.)
To prepare the filing, The Onion consulted lawyers in Grand Rapids, Mich., who had previously worked with Mr. Jaicomo. One of them, D. Andrew Portinga, said Monday that writers at The Onion had helped his team flesh out the text and legal citations with quips.
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Parody isn’t just in legal jeopardy these days — cartoonist Dan “Tom Tomorrow” Perkins is finding it harder and harder these days to keep up with the current reality we are living in, and the speed with which ‘things’ and other ‘thing-like things’ happen.