The Onion Files Hilarious Amicus Brief In An Important Case, And Actually Makes A Key Point In The Best Way Possible

In most cases, it does not do you any good to try to be funny in legal filings. In most cases, judges will not be that amused (even if those same judges sometimes try to make jokey rulings). In the world of the courts, the judges can be funny, but no one else should try. But every so often it works. The ACLU’s Eat Shit, Bob filing, for example, was pretty good.

But now The Onion has truly filed the best amicus ever. It’s one that honestly is so good it should probably never be tried again (even though I fear that many others are now going to try, and fail).

The case is actually one that we’ve been covering at Techdirt, though I never expected The Onion to weigh in on it. It goes back to 2016 when Parma, Ohio resident Anthony Novak (who enjoys writing comedy skits for fun) created a parody Facebook page for the Parma Police Department. It was pretty obviously a parody, talking about how the department “strongly discourages minorities” from applying for jobs at the police department. It also offered “free abortions” in a police van, and promoted a “pedophile reform event.” In short, it was a parody page mocking the Parma Police.

In response, the Parma police arrested Novak, claiming the parody page disrupted public services. Really. Novak spent four days in jail and then was tried but thankfully acquitted by a jury. Novak then sued the city of Parma for violating his civil rights. That case has bounced around the courts, but the rulings have not been great. The district court granted qualified immunity to the police. The 6th Circuit rolled that back in 2019 with what seemed like a good ruling at the time (with the court rightly noting “The First Amendment does not depend on whether everyone is in on the joke.”)

However, on remand, the lower court again decided that the cops get qualified immunity, saying that because some people didn’t get the joke, it violated the law.

Novak’s conduct also confused some members of the public, leading them to believe that his was the real Parma Police Facebook page. When [Detective] Connor consulted with Law Director Dobeck, they reasoned that Novak’s conduct may have violated Ohio Rev. Code § 2909.04(B) with the following elements: 1)“knowingly;” 2) “using a computer;” and 3) “to disrupt, interrupt, or impair the functions of any police … operations.” And Connor’s investigation resulted in a finding of probable cause on each of those prima facie elements.

Unfortunately, this time the 6th Circuit upheld the lower court ruling, saying that “because the officers reasonably believed they were acting within the law” they get qualified immunity.

Novak has asked the Supreme Court to weigh in on whether or not a police officer is entitled to qualified immunity for arresting someone solely for speech parodying the government. It also asks the court to reconsider the entire doctrine of qualified immunity.

With that as background, The Onion has stepped up to the plate and filed an amicus brief urging the Supreme Court to hear the case. And it is so, so good. Again, I would not recommend that anyone else ever try this, but in this case it works. The entire brief is a parody highlighting how parody is funny, even if some people don’t get the joke. You get a sense of where this is going right from the jump:

The Onion is the world’s leading news publication, offering highly acclaimed, universally revered coverage of breaking national, international, and local news events. Rising from its humble beginnings as a print newspaper in 1756, The Onion now enjoys a daily readership of 4.3 trillion and has grown into the single most powerful and influential organization in human history.

In addition to maintaining a towering standard of excellence to which the rest of the industry aspires, The Onion supports more than 350,000 full- and parttime journalism jobs in its numerous news bureaus and manual labor camps stationed around the world, and members of its editorial board have served with distinction in an advisory capacity for such nations as China, Syria, Somalia, and the former Soviet Union. On top of its journalistic pursuits, The Onion also owns and operates the majority of the world’s transoceanic shipping lanes, stands on the nation’s leading edge on matters of deforestation and strip mining, and proudly conducts tests on millions of animals daily.

The Onion’s keen, fact-driven reportage has been cited favorably by one or more local courts, as well as Iran and the Chinese state-run media.

Calling out the fact that media in India and China have fallen for articles in The Onion highlights how powerful governments can and do fall for parody all the time.

The Onion admits its bias in filing the amicus brief:

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 indistinguishable 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.

It then ventures into a slightly more serious discussion on the nature of parody itself and why it’s important — including the part where parody is often expected to fool some of those who come across it. It talks about the importance of The Onion’s motto, “Tu stultus es,” which translate to “You are dumb.” This is, as they note, actually an important part of parody:

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.

The second reason—perhaps mildly more important—is that the phrase “you are dumb” captures the very heart of parody: 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.

There is a lot more in there, including both relevant citations and a lot more jokes. It’s worth reading the whole thing, because not only will you laugh, you may learn a bit about how parody and the 1st Amendment work.

I will include one more bit, though, just because it’s… so good at both being funny and making the relevant point by doing so:

This is the fifteenth page of a convoluted legal filing 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!”

Taking the latter route would have spoiled the joke and come off as more than a bit stodgy. But more importantly, it would have disarmed the power that comes with a form devouring itself. For millennia, this has been the rhythm of parody: The author convinces the readers that they’re reading the real thing, then pulls the rug out from under them with the joke. The heart of this form lies in that give and take between the serious setup and the ridiculous punchline. As Mark Twain put it, “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.”

I have no idea if the Supreme Court will take this case. I have my doubts, since they seem to love qualified immunity for the most part. But who knows. Perhaps The Onion’s humorous approach has gotten them to think at least a little more deeply about the case.

Either way, it will stand out as one of the best, funniest amicus briefs in a long time. Oh, and also, as you might expect, one that is way funnier AND much more on point than the one filed by the ridiculously bad wannabe The Babylon Bee, which recently filed its own amicus brief… against the 1st Amendment rights of companies.