The Volokh Conspiracy
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Babylon Bee Files Amicus Brief in Support of Parody Rights -- and Doesn't File an Amicus Brief Opposing It
[NOTE: There is nothing parodic or facetious about any item in this post; it is entirely accurate. No, seriously, it is. Really, I mean it, really.]
Not to be outdone by The Onion's amicus brief in Novak v. City of Parma, The Babylon Bee filed an amicus brief in support of the parodist as well. Check out the URL; it starts with "https://www.supremecourt.gov/." Here's the opening of the Summary of Argument:
Truth is stranger than fiction. And fiction is illegal. At least in the Sixth Circuit. That court's decision—depriving Petitioner Anthony Novak of any opportunity to hold accountable those who searched his home, arrested him, and jailed him because the parody he wrote was too effective—should be reviewed by this Court on the merits.
First, parody plays an invaluable role in a free society. When parody is imperiled, citizens are deprived of one of their most effective means of criticizing the government.
Second, the Sixth Circuit's ruling will allow the state to punish vast swaths of speech erstwhile protected by the First Amendment. The Bee and its writers could be held criminally liable for many, if not most, of the articles The Bee publishes. Good grief, The Bee could even be on the hook for publishing this brief's doppelganger.
Third, the prospect that an individual or entity charged with a speech crime might ultimately be vindicated at a criminal trial does little, if anything, to temper the speech-chilling effects of the decision below….
The Babylon Bee also did not file, but nonetheless published, a different amicus brief opposing the parodist (which I think is even funnier than the real brief). Here's the Summary of Argument of that one:
When the staff of The Babylon Bee were alerted to the pendency of this case, they immediately realized the importance of filing a brief in support of the Parma Police Department and City of Parma. It is essential to protect those with coercive power who wield it for self-preserving ends. Plus, The Babylon Bee just really likes police officers, what with their badges and guns and stuff. They're so cool.
Moreover, deeper philosophical and constitutional issues are also at stake:
First, abuse of the First Amendment should not be tolerated. The petitioner seeks to turn that provision into a "living" amendment stretched beyond its original meaning to include humor and laughter. This is dangerous, as it is clear from a close reading of the Constitution that laughter is never explicitly mentioned. And that is a slippery slope we do not want to slide down. Who knows what other kinds of speech might eventually be protected by the Bill of Rights? Speech from people we disagree with?
Second, our society can only function if people get their information from a tightly controlled source that has never lied to us, like the government or the police. Then they can know it's 100% accurate. Petitioner's case threatens this status quo.
Third, the feelings of those who are being made fun of are rarely considered in free-speech cases like this one. In other words, when assessing whether particular speech is protected by the First Amendment, courts must also consider whether that speech hurts someone's feelings.
Fourth, it is impossible for us to function as citizens and humans if we suspect someone might be snickering at us behind our backs. That individuals might be allowed to use frivolous lawsuits to harass those who protect society from this sort of collapse is too much to bear.
