The Onion Joins Free-Speech Case Against Police as Amicus

Will the U.S. Supreme Court allow a man who was arrested for making fun of police on a Facebook page to sue?

The man, Anthony Novak of Parma, Ohio, is trying to convince the court to take up his case and called upon an unusual party to assist him with an amicus brief: the satirical news platform The Onion.

As you may be aware, The Onion has built a stellar reputation over the decades as a purveyor of bitingly funny "fake news" while masquerading as a traditional news organization. The Onion is a parody — it looks like a regular news website, but any sensible person who reads it understands that it's all a joke.

Here and there, The Onion's brief does employ its trademark humor— we'll get to a few of the funny bits further down — but it also makes a more serious overall point about parody. And Novak's case is all about parody.

The Facts

As a 27-year-old in 2016, Novak apparently just wanted to have fun by creating an anonymous Facebook page that mocked the local police. If that sounds like an acceptable form of free speech in the U.S., you're probably right. But this Facebook page was a bit different because it was a parody of the Parma Police Department's own Facebook page. It looked the same, but the content was quite different.

One of the posts was about police offering experimental abortions to teenagers in police vans. Another said police would be enforcing a new law that criminalized assisting homeless people by giving them food because the measure's goal was to encourage the homeless "to leave our city due to starvation." Another said the police would be offering a written exam to become a police officer "but is strongly encouraging minorities to not apply."

The police were not amused. They issued a public warning about the page along with a pledge that they would find the perpetrator. Feeling the pressure, Novak took down the page just 12 hours after he put it up.

The police thought the fake Facebook page crossed a line, violating a state law prohibiting the use of a computer to "disrupt" police services. They located Novak by executing a search warrant on Facebook. They arrested him and jailed him for four days. Then they charged him under the law about disrupting police services, a felony that carries a maximum sentence of 18 months in prison.

A jury found Novak not guilty of violating the state law, but Novak was not done. He sued seven officers for violating his First Amendment right to free speech. He also argued that the law he was charged under was "unconstitutionally overbroad" in giving police "unfettered discretion" to arrest Ohioans for exercising free speech.

Earlier this year, however, the U.S. Court of Appeals for the 6th Circuit ruled that the officers are protected by qualified immunity, which shields them from liability unless they run afoul of "clearly established law."

Seeking SCOTUS Cert

The Institute for Justice, a nonprofit libertarian public-interest law firm, stepped in to represent Novak and petition the Supreme Court to take up the case by presenting two questions:

• Is an officer entitled to qualified immunity for arresting an individual based solely on speech that parodies the government?
• Should the court reconsider the doctrine of qualified immunity per se?

That brings us to The Onion.

One of Novak's lawyers, Patrick Jaicomo, contacted The Onion's managing editor, Jordan LaFlure, to see if he would help. LaFlure said he would because the 6th Circuit's ruling could mean that The Onion itself could face increased risk if one of its mock stories rubbed someone the wrong way.

The task of writing the amicus brief — or at least the first draft of it — fell to head writer Mike Gillis. The lawyers then filled in the rest.

"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," the brief opens.

Typically, amicus briefs strive to establish credentials and credibility before diving into their argument, and that's what The Onion does here in its own unique style:

"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."

Most of the brief really is serious, making the point, in various ways, that parody is a valuable and time-honored tradition:

• Because parody mimics "the real thing," it has a unique capacity to critique it.
• Reasonable readers don't need disclaimers to know that parody is parody.
• It should be "obvious" that parodists cannot be prosecuted for telling a joke with a straight face.

But this being The Onion, it is sprinkled with humor. We promised you funny bits, and here are three:

• The Onion has a Latin motto, Tu stultus es, meaning "you are dumb." One reason the brief mentions it is because "The Onion knows that the federal judiciary is staffed entirely by total Latin dorks."
• Warning of the risks when people don't get the joke: In 2012, Republican U.S. Rep. John Fleming of Louisiana "believed that he needed to warn his constituents of a dangerous escalation of the pro-choice movement after reading The Onion's headline, 'Planned Parenthood Opens $8 Billion Abortionplex.'"
• "The Onion intends to continue its socially valuable role bringing the disinfectant of sunlight into the halls of power. … And it would vastly prefer that sunlight not be measured out to its writers in 15-minute increments in an exercise yard."

The odds are likely long that the justices will take the case. If they do, we can't wait to read The Onion's coverage.

Related Resources:

• When Blog Posts Cross From Free Speech to Criminal Threats (FindLaw's Legal Technology)
• Is It Legal to Videotape, Record Police? (FindLaw's Law and Daily Life)
• How Far Does the First Amendment Go to Protect Violent Speech? (FindLaw's Federal Courts)