The Onion's Amicus Brief in Parody Case

Thought I'd pass it along, though I expect many of you have already read it; it is pretty funny. It's written by Stephen J. van Stempvoort & D. Andrew Portinga (Miller Johnson).

Comments

[not guilty]

Clever. And persuasive, FWIW.

[LawTalkingGuy]

Not like something by that hack Jonathan Swift, that’s for sure.

[Rev. Arthur L. Kirkland]

This is as good as any brief I have read. Deftly written. Persuasive. Humorous. And making fun of authoritarian jerks and the dipshit judges who appease them is always a bonus.

[LawTalkingGuy]

Funnily enough, two of the judges on the Sixth Circuit panel that had this case have clerks who tried to get a fellow student in trouble for an obvious parody of the Federalist Society at Stanford. Too bad this Onion brief wasn’t available then, they could have learned something!

(Unless of course they knew it was parody the whole time (and how could they not?), and lied about it being defamatory to try to derail the graduation and career of a fellow student. Deluded figures mistaking parody for the real thing? Or shitty people with shitty values doing a shitty thing for shitty reasons? Pretty sure we know the answer to that one.)

[Rev. Arthur L. Kirkland]

That two clerks won't get it, because they are humorless losers, does not mean justice might not prevail.

[Bored Lawyer]

Of course, the problem is not the First Amendment per se, but Qualified Immunity, which permits constitutional rights to be abused so long as the rights are not "clearly established." And even when raised by a case, a court can dodge the merits by invoking QI.

This is what the Supreme Court has wrought, and needs to undo.

[Kazinski]

What's most troubling to me is that the right to parody is already clearly established.

[mpswaim]

Was it clearly established by a similar court case in the 6th circuit, though? The issue isn't whether it's protected speech, it's whether the goofy rules of QI are satisfied.
Now the Supreme Court could rule that it's obviously protected speech, and therefore, no QI. I think a lot of us would like that. I've seen people suggest that this court, right now, might be tempted to back law-n-order regardless of the merits.
The other possibility is that if there are enough people on the court who think the police did nothing wrong, they could simply deny cert. That way the decision stands, and they don't take any heat.

[Martinned]

Or, better still, they could go back to the old system where a court faced with a QI claim first has to decide whether the alleged constitutional right exists, before deciding whether it's clearly established.

[Michael P]

Wasn't that sequence only mandatory between Saucier v. Katz (2001) and Pearson v. Callahan (2009)?

While I think it is better than the current state of affairs, QI existed for a long time before 2001, and eight years doesn't seem a long enough tenure to call it "the old system".

[Martinned]

I didn't have that top of mind. But the way I used it "the old system" = "the system they had before the last time they changed the rules".

[Kazinski]

Well QI does have a.reasonable purpose, you don't want someone being able to sue claiming a 4th amendment violation for lack of probable cause every time they are pulled over for unsafe lane change.

The best proposal I've seen on that was to have a constitutional violation small claims court for that kind of minor transgression or perceived transgression.

[dwb68]

Many claps, well written.

The real parody is the underlying case. Parma claims qualified immunity because the right to parody is not clearly established. Whoa!

Petitioners QP is "Whether an officer is entitled to qualified immunity for arresting an individual based solely on speech parodying the government, so long as no case has previously held the particular speech is protected."

Parody is plainly protected under the First Amendment, sheesh. Censorship by arrest should not be a thing (its literally, the historical version of chilling speech - not the fancy 2022 technological version involving NGOs). If this case does not inspire the court to reconsider qualified immunity - really nothing will.

[dwb68]

Also, if you want to real some real fine parody, read the respondents "Brief in Opposition to Petitioner's Application for Extension of Time to File a Petition for Writ of Certiorari submitted" (the Parma police.) https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-293.html

"City and two individual police officers have endured this litigation for almost six years. They deserve closure."

Wow, really? They arrested this guy for a parody Facebook post! But they are the ones that need "closure." Talk about some entitled police in desperate need of a smackdown!

[LawTalkingGuy]

It probably won't matter, but that opposition to the application for an extension is the kind of thing that makes it marginally more likely there will be a cert grant.

[loki13]

Here's the thing. If you have the cojones (some would say ... lack of professional courtesy) to oppose the first requested extension of time for anything involving appellate cases ... and your claimed reason is that your clients don't want to drag this out and they need closure ...

You absolutely cannot turn around and request your own extension of time.

Guess what? That right. The City immediately requested an extension of time for their response. Maybe they were making a point about parodies?

[LawTalkingGuy]

Hahaha. Yeah. And it seems as a matter of strategy for a discretionary docket they would want to make the case seem as unimportant as possible. So they shouldn’t care when the cert petition is filed, because the case is a dead loser and they won’t have to spend much time on a response anyway.

But by immediately opposing the extension and saying: “this has been difficult litigation!” they’re making it seem like the case is super important and maybe cert-worthy.

[Martinned]

I agree that it's difficult to imagine a more clearly established right than the right to publish parodies of government speech. But I'd say that still leaves a messy grey zone where the parody is less than obvious. Because I don't think the Onion is right in saying that "Parody Functions By Tricking People Into Thinking That It Is Real". It's only parody if it's in some sense an exaggeration, and sometimes parody might not succeed for that reason. (Eg. because of a Poe's law failure.) While obviously the 1st amendment requires that borderline cases go to the citizen, I'm not sure the 1st amendment requires a pure subjective intent test. There must be publications that might have been intended as parodies but that no reasonable reader would interpret as such.

Tl;dr, there's lots of scope for interesting legal questions here. But none of them are whether parody is protected speech.

[dwb68]

No.

Even if the parody is “less than obvious” free speech is protected, censorship by arrest should not be tolerated by any appellate court.

Did anyone really think the Parma police were doing back of the van abortions, LMAO.

I mean, if you *really* thought that was in the realm of possibility for the Parma police, that makes the parodist’s point right there: If you think there is a possibility the Parma police are doing abotions, they might be out of control. If you think that (there is a possibility) they are reforming child sex offenders and making them honorary police, they might be out of control. LMAO

The golden rule of parody is really: its so bizzarre and exaggerated, yet you might think its true. Its to demonstrate that you have reached the end of the slippery slope.

[Martinned]

For the record, I didn't see the page in question, so I have no idea whether a reasonable person would recognise it as parody.

[Mr. Bumble]

A country which "elected" a senile political grifter (with the advantage of a toady media supporting him at every turn) as President would seem to argue in favor of a nationwide lack of reasonable readers.

[dwb68]

twice, even.

[Martinned]

True, but in fairness when Reagan was elected we didn't really have the internet yet.

[dwb68]

we, did. The “Internet Transmission Control Program” was coined in 1974. During Reagan’s years, it was called bitnet, arpannet, NSFNET, and some other names**, that is … until Al Gore invented it.

** and yes, you could send emails.

[Martinned]

Hence the "really" in my previous comment. In the 1980s in my home we didn't have a computer, and I suspect you didn't either.

[Michael P]

Even among home computer users, almost nobody had Internet access at home back then. There wasn't a World Wide Web, and Gopher was mostly just a protocol used in libraries. Modems existed but were used to access businesses or bulletin board systems (BBSes).

The came 1993's Eternal September, and home users started to get on the Internet.

But even before then, lots of organizations had the Internet. By early 1984, it was widespread enough that the Kremvax April Fools Day hoax was a funny parody.

[tkamenick]

As a kid (born in 1980), I remember programming a ZX-81 Basic when I was around 6 or 7, and using something like a 2400 baud modem to dial up my friend who had a modem when I was 9 or 10. But yeah, I didn't start using anything like an internet service until I was... 11 or 12 maybe? The Imagination Network / The Sierra Network started publicly in 1991, and I was on there before Compuserve, Prodigy, or AOL. I recall dialing up to BBSs a little bit prior to that.

[tkamenick]

And I just remembered that we had to pay for "stamps" to send the equivalent of email, hah.

[Toranth]

In the US, in 1988, 15% of US households (about 17 million) had a personal computer. That's roughly 20% of Americans. About 50% of students reported using one to do school work (at home or at school). About 4 million households used a modem.

I think you vastly underestimate how many personal computers there were in the US, probably based on your experience of the much slower adoption in other nations. Places like France, for example, were less than 1/3 the US rate of ownership, and most of Europe was worse.

[Michael P]

For the record, he didn't read any histories of how Al Gore invented the Internet, so he has no idea whether it was obvious that the Internet existed before Reagan was elected as president.

[loki13]

Any bit of comedy that employs satire, irony, or sarcasm in a proper and correct fashion requires that some portion of the audience be confused (or even hurt) by the comedy.

Ambiguity is not a bug, but the central feature of any type comedy that plays with or invokes satire and irony. Simply put, the possibility that a reader can misunderstand the message is necessary to the proper conveyance of the message.

This ambiguity is not a bug - it is the distinguishing feature.

[Martinned]

True, but if I set up a spoofing site that imitates some government website in order to obtain advantage through fraud somehow, I shouldn't be able to avoid criminal charges by claiming I only meant it as a parody, but that the police simply don't get my sense of humour. In such a hypo, various police officers, judges, etc, will have to make a call about whether my website could plausibly be understood as parody.

[loki13]

Then there is a fraud component. But when the person is arrested because their parody site is mocking the police, that's different.

It might not have been great comedy, but the reason the police were angry wasn't because they thought a reasonable person would be confused, Martinned. Unless the police are claiming that a reasonable person believes that:
a) The Parma PD runs a no-questions asked Abortion Van that uses an experimental abortion technique on teens.
b) The Parma PD is asking minorities not to apply for police positions.
c) The Parma PD is criminalizing feeding the homeless in order to starve them out of the city.
d) The Parma PD is allowing people to get off of the sex offender registry and become cops by completing some simple puzzles.

Now, the thing with parody is that people with power don't like it because it mocks them. To the extent that people were fooled by this parody, maybe the Parma PD needs to look inward a little.

[Martinned]

Again, I know nothing about this specific case, nor do I particularly care. But in general there will definitely cases where one person's "mocking" overlaps with another person's "fraud", which is traditionally where judges and juries come in to say which it is.

[David Nieporent]

I think (b) and (c) are both pretty easy to believe, actually!

[WuzYoungOnceToo]

I think (b) and (c) are both pretty easy to believe, actually!

Yes, your eagerness to believe bullshit about law enforcement is already well-documented.

[Nige]

So has the eagerness of law enforcement to do awful bullshit.

[WuzYoungOnceToo]

As is your being so stupid that you can't discern between individual cops (or small groups of cops) doing things they shouldn't vs explicit public department policies (like "asking minorities not to apply for police positions").

[Sarcastr0]

Just a few bad apples!

[Nige]

I dont see why I should since there are so many of them and they get away with so much and police departments lie to cover up awful bullshit all the time and public policies do not reflect actual behaviour.

[WuzYoungOnceToo]

I dont see why I should

That's one of the results of being stupid.

[Nige]

See? You can’t even come up with an actual reason why I should.

[Harvey Mosley]

https://www.courthousenews.com/a-dozen-people-arrested-for-feeding-the-homeless/

[tkamenick]

The Onion makes a really good point, though, that REASONABLE people recognize parody, and part of parody's function and true value is tricking the UNREASONABLE people into identifying themselves by failing to recognize it as parody.

[Martinned]

Indeed. And normally it's the jury's job to figure out what a reasonable person would think. But in this case the question is how you decide what should even go to the jury.

[VinniUSMC]

The Onion makes a really good point, though, that REASONABLE people recognize parody, and part of parody’s function and true value is tricking the UNREASONABLE people into identifying themselves by failing to recognize it as parody.

Unreasonable people fail to recognize parody.
Anyone who doesn't recognize parody is unreasonable.

Hooray for circular logic. Empowering authoritarians for millennia.

[John F. Carr]

They almost had me believing that there was a United States Court of Appeals for the Sixth Circuit.

[loki13]

This was a rare thing to read.

A legal document that was intentionally funny.

An amicus brief that was persuasive.

And, for that matter, something that was appropriately "meta" (it was both advocating for parody while, at the same time, employing the form).

Just really well done.

[Mr. Bumble]

Wonder how the court feels about it?

[loki13]

The chances of cert on any given case are low, so the actual result of this doesn't mean it was poorly taken.

I would think that the clerks and most of the Justices would enjoy this. Good legal writing is always appreciated, and this is well written. Moreover, as it is an amicus brief, it has the luxury of being able to indulge in humor, a risk that the parties likely would not, could not, and should not take.

[Jimmy the Dane]

The Onion from the early 2000's was superior in quality. Some of those old "op-eds" are still hilarious. It is a real shame they gave into PC in later years.

[dwb68]

Yeah, unfortunately the Babylon Bee has become the last bastion of satire. Probably because the woke mind has no sense of humor.

[Mr. Bumble]

...especially when Bee stories are "fact checked".

[apedad]

Yep, totally against the left: https://babylonbee.com/news/trump-i-have-done-more-for-christianity-than-jesus

"I mean, the name of the magazine is Christianity Today, and who is doing more for Christians today? Not Jesus. He disappeared; no one knows what happened to him. But I'm out there every day protecting churches from crazy liberals."

[dwb68]

LMAO. Gold, Jerry, Gold!

[Larvell Blanks]

For both The Onion and Babylon Bee, the headlines constitute 105% of the humor, the actual articles are -5%.

[Ridgeway]

I'm gonna have to go ahead and disagree with you there. Every word in this piece is perfect:

https://www.theonion.com/shirtless-biden-washes-trans-am-in-white-house-driveway-1819570732

[Ridgeway]

This one might be even better, but it is definitely NSFW:

https://www.theonion.com/why-do-all-these-homosexuals-keep-sucking-my-cock-1819583529

[dwb68]

How has the onion avoided being canceled for that???

[Toranth]

1998 was different.

[SRG]

I always liked these two:

https://www.theonion.com/rich-guy-wins-yacht-race-1819565378

https://www.theonion.com/collectible-plate-industry-calls-for-tragic-death-of-st-1819564991

[B G]

The Onion still gets some good stuff once in a while, but the Bee has been eating their lunch for a couple years at least.

Wouldn't say the Bee is the "last bastion", but they're probably best in class currently. The Onion adopting a raft of "sacred cows" that they see as off limits has definitely been a factor there. The "woke mind" does have a sense of humor in it's own way, but it's one that only resonates with true believers; to them, the pinnacle of humor is "how funny is it that so many Libertarians actually think they aren't fascists?"

[David Nieporent]

The Babylon Bee has exactly one joke, involving mocking the concept of self-identification. It was funny the first 20 times.

[B G]

Of the pieces the Bee has posted, their anti-trans stuff is "meh" at best IMO. I'm also not "in the demo" for their religious based stuff to really hit me very hard. I never paid any real attention to their twitter activity (or anyone else's for that matter) before they got banned

The stuff I've liked on their site over the last couple years has been their satire of some of the lunacy of "the squad" (and/or the cast of "The View") and the "team terror" pandemic response, and a lot of the shots they've taken at CA and Gavin Newsom have been downright amazingly savage. Far too much of it has turned out to have been inadvertently prescient (where a target of one of their pieces ends up saying/doing something alarmingly similar to the "ridiculous extreme" version that had run in the Bee 2-4 months earlier)

[Sarcastr0]

::funny product is posted::

The usual crowd: "It's too partisan, I only like humor that is partisan in my direction!"

Well, OK.

[VinniUSMC]

Hot take: Humor can also be non-partisan. Or "bowf saidz!" Or any number of apolitical things. But Sarcastr0, always ready to pounce for the team.

[MoreCurious]

Probably none of the justices would admit to it publicly, but would any of them privately admit to being amused by The Onion's brief? Thomas and Alito: unlikely. Kavanaugh and Sotomayor: maybe.

[WuzYoungOnceToo]

I'd think Kagan would, at least. As much as I disagree with her on most things, she does seem to have a pretty good sense of humor.

[Kenneth Almquist]

The brief was funny, but I can't help wondering about the risks of writing a brief like this. It has attracted a lot of attention--Volokh says that he thinks most people have already seen it--so a few reporters might decide to write about it. And being reporters trained to get both sides of a story, they probably call the non-emergency line of the Parma police department seeking comment. Furthermore, the brief was prepared on a computer, and likely filed electronically. So filing this amicus brief may have violated of Ohio law, and the lawyers who filed it risk being arrested. If no one has ever been arrested before for filing an amicus brief with the Supreme Court--something that the police would have to check before making the arrest---the arresting officers could be confident that they would be protected by qualified immunity even if the case was ultimately dismissed.

[B G]

Probably the best satire to come from the Onion staff in a long time.

After spending 2021 under the impression that there was "nothing mockable" about any member of the Biden administration, the centerpiece of their weekly work now seems to be a slideshow of "people {wherever] explain why" followed by whatever the latest inexplicable divergence from leftist orthodoxy had the most traction in the news a week or two before.

Really a shame compared to what their publication used to be when they were willing to take shots at targets of every ideological stripe.

[Union of Concerned Socks]

Haven't laughed that hard in a long time.

God bless The Onion, and all who sail on her.