“The Onion files this brief to protect its continued ability to create fiction that may ultimately merge into reality.”
“Put simply, for parody to work, it has to plausibly mimic the original.”
— Brief of The Onion in Novak v. Parma
Legal briefs can be persuasive, informative, argumentative, or even enlightening. But one thing that they are almost certainly not is entertaining. That’s just not their purpose, of course. Their purpose is to clearly state the application of the law to the facts of a case in order to convince a court to rule a certain way.
But recently, a media outlet not known for its legal prowess filed an amicus brief in a case on appeal to the United States Supreme Court that is, without doubt, the funniest legal brief I’ve ever seen. Not surprisingly, it came from the satirical news outlet The Onion. Very surprisingly, it came in a major First Amendment case involving the concept of parody. And that case came out of Ohio.
First, let’s talk some facts. The case centers around a Parma man named Anthony Novak. Back in March of 2016, Mr. Novak decided that it would be funny to create a parody of the Facebook page of the city’s police department. He copied the style of the page almost completely, including pictures and much of the text. But instead of the department’s slogan “we know crime,” he put “we no crime.”
He then put several posts, ads, and stories on the page that parodied positions on a variety of topics and certainly did not shy away from controversial subjects, covering abortion, racial discrimination, sex offender rehabilitation, and more. The posts were intended to be humorous, but led to plenty of angry calls to the police department from people who were tricked into thinking they were real. When people made comments that his page was fake, he deleted them, and when the real police department page posted a warning about his fake one, he copied it onto his.
Eventually, the Parma police had enough, and got Mr. Novak’s information from Facebook. They went to his home and arrested him, charging him with the offense of disrupting public services. He spent several days in jail and was indicted by a grand jury. Novak took his case to trial where he was acquitted.
The charge and trial are not actually the subject of Novak’s Supreme Court case — at least not directly. Instead, the issue is what came next. After his acquittal, Novak filed a federal lawsuit against the city and two of its officers, alleging violations of his First and Fourth Amendment rights. The city argued that it was protected by qualified immunity, since the police officers could reasonably believe that their actions were lawful in light of the fact that both a local judge and the grand jury had supported their decisions.
The federal trial court largely rejected the city’s claims at first, but following an appeal and the case being returned to the trial court, the judge then dismissed Novak’s suit because the police officers had probable cause to arrest him. The 6th Circuit Court of Appeals unanimously agreed, and Novak then appealed to the Supreme Court. Thus, the underlying case is not about free speech directly, or about satire specifically, but rather about when a police officer has qualified immunity, and how the concept of qualified immunity intersects with free speech.
Enter The Onion, with a brief that is signed by its lawyers, but was mostly authored by one of its writers, Mike Gillis. It was Gillis, not the lawyers, who crafted the hilarious and self-referential parody in the brief, and then forwarded it to the legal team to punch it up with the appropriate legal analysis.
In true Onion fashion, the brief pokes fun at accepted conventions, comically refers to the Onion itself, parodies legal practices, and even takes a few jabs at the High Court. Calling The Onion the “world’s leading news organization” and then claiming that it employs “350,000 people in various news bureaus and labor camps around the world,” it correctly notes that the online publication has a “self-interest in preventing political authorities from imprisoning humorists.”
It then correctly states that parody only works when it tricks the reader into initially believing that the parody is real, so that the moment when the person recognizes that it isn’t real becomes the punch line. It contains one entire paragraph in Latin (“mocking the way legalese can be both impenetrably boring and belie the hollowness of a legal position”) and quite a bit of analysis of why humor in general, and parody in particular, are protected speech.
As laugh out loud funny as the brief can be, it is, unfortunately, not a particularly good one when it comes to the effectiveness of its legal analysis. That’s because the issue it almost exclusively talks about — whether parody is protected speech or not — is a settled one, and it never gets to the actual question of this case, which isn’t about the protection of parody at all, but rather about how we apply concepts of qualified immunity even when protected speech is at issue.
Still, the brief may be persuasive in convincing the court to take the case and will definitely be worth a read for generations of future law students. You can readily find it online because, after all, as the brief states, The Onion has “a daily readership of 4.3 trillion.”
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.