Some things are beyond parody. For everything else, there’s The Onion. And God bless ’em! Because your second favorite satirists just filed an amicus brief at the Supreme Court protesting a decision by three reactionary Republican appointees siccing the bastard child of qualified immunity on the First Amendment right to make a joke.
In 2016, the plaintiff, Anthony Novak of Parma, Ohio, created a parody Facebook page to mock his local police department. It was a mirror of the department’s official page, but with posts promoting things such as a “pedophile reform event” where contestants could compete to get off the sex offender registry by solving puzzles. No rational person could seriously believe that the Parma County PD was driving around in a van offering to perform an experimental abortion technique on teenagers. And yet, the cops sought a warrant and arrested Novak for disrupting police activities.
At trial, Novak was acquitted, after which he sued the police and the city for violating his First Amendment rights. The trial judge dismissed the case on the grounds that the police had gotten a warrant and did not intentionally abridge Novak’s speech — even though the page was only up for 12 hours, and the so-called disruption of police activity consisted of 12 minutes of phone calls to the non-emergency line, some of which was citizens simply reporting the existence of the page under the mistaken belief that parody is a crime. The Sixth Circuit affirmed the decision, holding that “the officers’ conduct may have been lawful and justified by probable cause. But even if it wasn’t, the officers’ mistaken understanding of First Amendment law is far from intentional harm.”
And into the breach rides The Onion, because if anyone’s got a stake in the issue of whether cops can arrest you for making a joke, it’s those guys.
“As the globe’s premier parodists, The Onion’s writers also have a self-serving interest in preventing political authorities from imprisoning humorists,” they argue. “This brief is submitted in the interest of at least mitigating their future punishment.”
The Sixth Circuit relied on the fact that there was no disclaimer on Novak’s page announcing that it was a parody account, and that he deleted comments making that clear. But, as The Onion points out, sometimes the entire point of the joke is that you get fooled by the set-up and then un-fooled by the punchline, i.e. “tricking readers into believing that they’re seeing a serious rendering of some specific form—a pop song lyric, a newspaper article, a police beat—and then allowing them to laugh at their own gullibility when they realize that they’ve fallen victim to one of the oldest tricks in the history of rhetoric.”
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.
See also, Jerry Falwell reminiscing in the style of a liquor ad about a sexual encounter with his mother in an outhouse while “drunk off our God-fearing asses on Campari.”
The brief alludes to various times when Onion posts were mistaken for reality, such as when China’s state-run news agency reprinted a story calling North Korea’s Kim Jong-un the sexiest man alive. Under the Sixth Circuit’s analysis, this sincere but mistaken belief would be a rational basis for state action. And if the decision is allowed to stand, it will effectively substitute a humorless cop’s subjective belief that his work was being impaired for a reasonable person’s interpretation of what was very clearly a parody. (Yes, this takes as its premise that the cops really did think they had a right to shut Novak down to avoid disrupting police business, rather than that they just stifled his speech because they didn’t like it and didn’t give a shit about the First Amendment. We appreciate that it’s ridiculous, but that’s a discussion for another day.)
At bottom, parody functions by catering to a reasonable reader—one who can tell (even after being tricked at first) that the parody is not real. If most readers of parody didn’t live up to this robust standard, then there would be nothing funny about the Chinese government believing that a pudgy dictator like Kim Jong-un was the sexiest man on Earth. Everyone would just agree that it was perfectly reasonable for them to be taken in by the headline.
The law turns on the same reasonable-person construct. The reasonable-reader test gauges whether a statement can reasonably be interpreted as stating actual facts, thereby ensuring that neither the least humorous nor the most credulous audience dictates the boundaries of protected speech.
Citing Mark Twain’s famous quote that “The humorous story is told gravely; the teller does his best to conceal the fact that he even dimly suspects that there is anything funny about it,” The Onion warns that “grafting onto the reasonable-reader test a requirement that parodists explicitly disclaim their own pretense to reality is a disservice to the American public. It assumes that ordinary readers are less sophisticated and more humorless than they actually are.”
It’s really a masterfully crafted, hilarious brief, and you should read the whole thing! But more importantly, it gets at the danger posed to free speech by unquestioning adherence to police authority. And as people who talk a lot of shit, Your Wonkette is most grateful for the assist. Because we, like the Onion, would like to continue our mission of “bringing the disinfectant of sunlight” through our particular brand of humor, and we, too, “would vastly prefer that sunlight not to be measured out to its writers in 15- minute increments in an exercise yard.”
[Amicus Brief / Supreme Court Docket]
Follow Liz Dye on Twitter!
Click the widget to keep your Wonkette ad-free and feisty. And if you’re ordering from Amazon, use this link, because reasons.
