The Babylon Bee this week joined The Onion in urging the Supreme Court to defend the First Amendment against an Ohio law that makes parody a felony. The case, which the Institute for Justice is asking the Court to take up, involves Parma resident Anthony Novak, who in 2016 was prosecuted for violating a state law against using a computer to "disrupt, interrupt, or impair the functions of any police, fire, educational, commercial, or governmental operations." Novak supposedly did that by creating a parody of the Parma Police Department's Facebook page.
Among other things, the fake Facebook page included a job notice saying the department "is strongly encouraging minorities to not apply," a warning that Parma had banned food handouts so "the homeless population" would "leave our city due to starvation," and an announcement of "our official stay inside and catch up with the family day," during which anyone venturing outside between noon and 9 p.m. would be arrested. The police department was not amused.
The cops retaliated by investigating Novak, searching his apartment, seizing his electronic equipment, arresting him, and bringing charges that could have sent him to prison for up to 18 months. After a jury acquitted him, Novak filed a federal lawsuit against several officers who were involved in the case, arguing that they had violated his constitutional rights under color of law. But last April, the U.S. Court of Appeals for the 6th Circuit ruled that the defendants were protected by qualified immunity, which shields cops from liability unless their alleged misconduct violated "clearly established" law. The appeals court concluded that the cops "reasonably found probable cause in an unsettled case judges can debate," noting that "both the City's Law Director and the judges who issued the warrants agreed with them."
For obvious reasons, the right-leaning Bee, like the left-leaning Onion, is alarmed by the implication that people have no recourse against cops who arrest them for making fun of government agencies. "The Bee is serving a brutal life sentence in Twitter jail as we speak," says its amicus brief in Novak v. City of Parma. "Its writers would very much like to avoid a consecutive sentence in a government-run facility."
The premise of Novak's prosecution was that he had disrupted police operations by prompting calls about his parody to the department's nonemergency line. "Left in the hands of the Sixth Circuit and the Parma PD (and other like-minded law enforcement), the speech-stifling Ohio statute used to go after Mr. Novak empowers state officials to search, arrest, jail, and prosecute parodists without fear of ever being held accountable," the Bee says. "The upshot for The Bee is that, in Ohio at least, its writers could be jailed for many, if not most, of the articles The Bee publishes, provided that someone contacted law enforcement—or another entity 'protected' by [Ohio's law]—to tell them that the articles exist."
Consider the March 3 Bee story headlined "Donut Sales Surge as Police Departments Re-Funded." If someone "had called the Parma Police Department to let them know that The Bee had published the article," the brief suggests, the publication "could have been charged with a felony, its offices searched, and its writers arrested and jailed for days, all without consequence for the parties doing the charging, arresting, jailing, and searching." Likewise if an officer's "passive-aggressive brother-in-law had forwarded the article" to the cop's official email address, thereby "interrupt[ing]" his work.
Given the broad wording of Ohio's law, which refers to "governmental operations" generally, Bee articles about federal agencies, such as its August 12 report on the FBI's search of Mar-a-Lago, also could be treated as grounds for arrest. "Had a caller contacted the FBI field office in Cleveland or Cincinnati" to "express outrage over the suspicious timing of the FBI's raid on Melania Trump's Mar-a-Lago closet and Attorney General Garland's acquisition of a haute couture wardrobe," the Bee notes, that could be the basis for a felony charge in Ohio.
Since Ohio also has criminalized computer-assisted interference with "educational" functions, cops in that state might likewise have found probable cause in a 2020 Bee story headlined "College Athlete Surprised to Learn His School Has Classes." If "a reader called the Office of Academic Affairs at The Ohio State University about the article," the Bee suggests, "that would have been enough for law enforcement" to "arrest The Bee's staff."
Last month the Bee ran a story under the headline "Subway Begins Promotional Offer Where They Will Use Real Meat for a Limited Time." If that article prompted calls to "an Akron Subway franchise," the Bee wonders, couldn't that be construed as interference with "commercial" operations?
In short, the Bee says, "the Sixth Circuit's ruling allows the government to punish vast swaths of constitutionally protected speech." And even if any given gadfly is, like Novak, ultimately acquitted, that does nothing to address the cost, inconvenience, embarrassment, anxiety, and loss of liberty associated with his arrest and prosecution, let alone the chilling effect such an example is apt to have on others.
"The Sixth Circuit's qualified-immunity-on-steroids approach means that state actors can search, arrest, jail, and prosecute 'offenders' like Mr. Novak without fear of ever being held to account themselves," the Bee notes. "Knowledge that they may be searched, arrested, jailed, and prosecuted without recourse is enough to dissuade most would-be speakers, regardless of the potential for ultimate acquittal."
The 6th Circuit cited two reasons why police might have reasonably believed that Novak's spoof did not qualify as constitutionally protected speech: Novak had deleted comments describing the page as fake, which he thought ruined the joke, and he had reposted a police department warning about the ersatz account, which he thought made the joke funnier. Like The Onion, the Bee takes issue with the implication. "Parody shouldn't be stripped of constitutional protection just because it's not clearly labeled as parody," it says. "And requiring that parody be written so as to ensure that the most gullible in our society—the Facebook-using grandmother, the tween TikTok addict, the CNN reporter—don't take it seriously ruins the parody for everyone else."
The Onion described itself as "the single most powerful and influential organization in human history." The Bee is slightly more modest, claiming only to be "quite possibly the most popular source for satire in the history of the world" and describing The Onion as "a cute little upstart." But on the First Amendment issues raised by this case, the two fake news organizations see eye to eye.
"The Onion may be staffed by socialist wackos, but in their brief defending parody to this Court, they hit it out of the park," the Bee says. "Parody has a unique capacity to speak truth to power and to cut its subjects down to size. Its continued protection under the First Amendment is crucial to preserving the right of citizens to effectively criticize the government."
Start your day with Reason. Get a daily brief of the most important stories and trends every weekday morning when you subscribe to Reason Roundup.