- Corpus Juris. Ad hominen tu quoque. Post hoc ergo propter hoc. Quod... I know all of these things,
and it's so hard to say. Every once in a while a genius changes the
legal landscape forever. Sometimes that genius isn't even a lawyer. And scholars will look back on history as the days before "The Onion"
filed its Supreme Court brief and the days after because
we are all changed. Now, it's not surprising because according to "The
Onion's" Supreme Court brief, "'The Onion' rose from
its humble beginnings "as a print newspaper in 1756 "and now enjoys a daily
readership of 4.3 trillion "and has grown into the
single most powerful "and influential organization
in human history." Yes, "The Onion" has filed
its first ever amicus brief, and it started with the
top, the U.S. Supreme Court. Its brief immediately
took law Twitter by storm. And I've read a lot of briefs in my time, and trust me, they're not
all as funny and precise as this one. And people have asked if real
lawyers were actually involved in this particular brief. Yes, the authors of this momentous brief, "The Onion's" head writer Mike Gillis and "The Onion's" lawyers of record Stephen J. van Stempvoort
and D. Andrew Portinga, who are real people, I
actually checked on that, pulled no punches in their brief writing. Quote, "'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' "to their spouse's 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." I feel so seen. But the question must be asked, is this a great Supreme Court brief or the greatest Supreme
Court brief in history? But first we have to ask ourselves, why is "The Onion" filing
a friend of the court brief with the Supreme Court? Well, they're standing
up for Anthony Novak, an Ohio man who started mocking
his local police department in March of 2016. Novak's Facebook page had the same name, cover photo, and profile photo as the Parma Police
Department's official page, but it was designated a community page and didn't have the official
blue check mark verifying it as an official page. Novak's page displayed the
satirical slogan, "We no crime." Now, Parma is Cleveland,
Ohio's biggest suburb and it has long had a reputation for being just a little bit
extra, and by that I mean it has a well-documented
problem with racism. In the 1970s, the Justice
Department concluded that Parma's near-manic
growth was a classic example of white flight. The DOJ found that the
city of Parma engaged in a pattern and practice
of racial discrimination in housing in violation of
the Fair Housing Act of 1968, and the city didn't settle
with the DOJ until 1998. The Parma Police Department has been cited for refusing to hire
minority police officers. Cleveland is 51% Black. Its largest suburb is
still less than 5% Black. And I'll note parenthetically
that one of the members of Team LegalEagle is from Cleveland and informs me that the
Parma police are notorious for prosecuting drivers
for driving while Black. Now, legendary public
access host Ghoulardi, father of director Paul Thomas Anderson, relentlessly mocked Parma for decades. Anthony Novak clearly knew this history when he set out to mock the local cops. As "Cleveland Magazine" once said, quote, "Everyone in the country
makes fun of Cleveland, "and everyone in Cleveland
makes fun of Parma." Now, Novak's page was up for six hours, and during that time it
published six satirical posts. The first was an apology for, quote, "Failing to inform the
public about an armed robbery "of a Subway sandwich
shop by a white man," while requesting information to, quote, "bring to justice an
African American woman "who was loitering in front of
the shop during the robbery." Novak then published a fake announcement that new police officers
would be recruited based on a, quote, "15 question multiple
choice definition test "followed by a hearing test, "and strongly encouraged
minorities to not apply." He followed up with an update
about a pedophile reform event promising that anyone who
made it through the stations would be removed from
the sex offender registry and accepted as an
honorary police officer. Now by now you are probably thinking that surely everyone who saw these pages knew it was a parody and, of course, was protected
by the First Amendment. But that's not how the
Parma police saw it. They got a few phone calls
from confused citizens. They immediately posted a warning on the police department's
real page letting people know that the other page was fake and that the department was investigating. The comments to the notice reveal that most citizens understood
what was happening. Now, Novak thought it would be funny to post the police notice
on his page verbatim, so that's what he did. Officer Kevin Riley didn't like that, and so he went on the local news where he said that the cops
were launching an investigation into the page's owner. Riley described the page as, quote- - But frankly, they're
crude, they're demeaning, and they're very inflammatory. Our concern right now is public safety. - Now as legally idiotic
as those statements were, Riley's comments did prompt
Novak to take his page down, but the Parma officials did not let up. Instead, the police subpoenaed
Facebook to unmask Novak. The page wasn't even up by the time that they
discovered Novak's identity. Now, once they knew it was Novak, they consulted with the
prosecutor Timothy Dobeck. Dobeck and the officers
searched for a crime to fit the situation and ultimately landed on Ohio Revised Code, Section 2909.04 B, a felony statute prohibiting
the knowing, quote, "Use of any computer
to disrupt, interrupt, "or impair the functions
of any police operation." Now, how did Novak disrupt
the police department? His parody caused 11 people to call up the station in confusion. But that was enough for a local magistrate who found that the cops had probable cause to search Novak's house. The police then conducted a
SWAT raid on Novak's home, confiscating his gaming
consoles, computers, and tablets. Police arrested Novak and threw
him in jail for four days. Detective Thomas Connor
told the grand jury that the callers, quote, "honest
to God" actually believed the page was real. The grand jury indicted Novak for disrupting public services, a fourth degree felony that
carried a maximum penalty of 18 months in prison. But not surprisingly,
later during a deposition Connor admitted that none of the callers thought the parody Facebook page was real, but the damage was done. The city continues to insist to this day that 10 of those calls wasted
precious dispatch time. But let's be real, "Parma dispatchers probably
get more useless phone calls "when Rudy's Strudel runs
out of donuts on paczki day." I guess that's a Cleveland joke. Now, Novak stood trial and, lucky for him,
the jury acquitted him. And after he was acquitted, he
then sued the city of Parma, the police department,
and the police officers for violating his civil rights, because that's exactly what they did. The police officers, not surprisingly, raised qualified immunity as a defense. Now, I've talked about
qualified immunity in the past, but here's a recap of this
judicially invented doctrine. Qualified immunity
protects state officials from being held accountable
on a federal level for violating a person's
constitutional rights. Under this doctrine, an officer
or state actor is immune from civil liability if a
court has not previously stated that the officer's act
was unconstitutional in a prior court decision. It's an idea that if there
isn't a court decision on this type of constitutional violation, then they don't have notice that they were violating
someone's constitutional rights. Now, qualified immunity only
allows lawsuits to move forward if state officials violated a, quote, "clearly established statutory
or constitutional right." And when determining
whether or not a right was clearly established, courts consider whether a
hypothetical reasonable officer would've known that
the defendant's conduct violated the plaintiff's rights. What started as a way to ensure that officials were not held liable for things that they had no way of knowing were unconstitutional has now become really a serious impediment for holding police officers accountable. The Federal District
Court for Northern Ohio denied the Parma officers'
motion for qualified immunity, but the Sixth Circuit eventually
overturned that decision. The court held it was
not clearly established that Novak's copying of
the department's notice onto his page and the
deletion of user comments were protected speech. Under the disruption statute, quote, "The officers could reasonably believe "that some of Novak's Facebook
activity was not parody, "not protected, and fair
grounds for probable cause." The Sixth Circuit put special value on the fact that a prosecutor
and magistrate agreed that there was probable cause that Novak violated the statute. Now with that somewhat
depressing background in mind, we can turn to how in the world does this involve "The Onion"? Well, when someone files an amicus brief they have to start by stating why they have an interest in the case that the court should consider. So the brief starts out by discussing the interests of the amicus,
the friend of the court, in this case "The Onion." Quote, "'The Onion' is the
world's leading news publication "offering highly acclaimed,
universally revered coverage "of breaking national, international, "and local news events." Quote, "'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." Now, I love this part because it goes to the heart
of what makes good parody, the ability of the satirist
to actually make people think it might be real. And "The Onion" has tricked many people into reporting its stories as fact. And back in 2012, Iran's Fars
News Agency published a story claiming that a Gallup poll
found that rural white Americans preferred Iranian President
Mahmoud Ahmadinejad over President Barack Obama. Although that feels like
it might have been true, unfortunately Ahmadinejad was ineligible for U.S. presidency, so we'll
never know if his stance about women covering their
hair would've gained traction in rural Indiana, though
I worry that it would. Chinese state media also
thought that "The Onion's" story declaring Kim Jong-Un the
sexiest man alive was real. "The Onion" wrote that Kim was, quote, "Blessed with an air of
power that masks (chuckles) "an unmistakably cute, cuddly side. "Kim made this newspaper's
editorial board swoon "with his impeccable fashion
sense, short hairstyle, "and, of course, that famous smile." Well, look, when you put it that way, it's easy to see why the 45th
president had such a crush. Now, "The Onion" brief also points out that it has a good track record
of predicting future events. Quote, "One such coup was
'The Onion's' scoop revealing "that a former president
kept nuclear secrets "strewn around his beach home's basement "three years before it even happened." Fact check, true. (chuckles) Now, "The Onion" really
did write a story in 2017 about the nuclear briefcase
being left behind at Mar-a-Lago. "Noting that it had already
been there for almost two weeks, "Mar-a-Lago assistant
manager Chris Mahoney "reportedly wondered if anyone was coming "to collect the nuclear briefcase "from the club's lost and found." Anyway, "The Onion" filed this brief to protect the rights of parody creators who, as a class, would
prefer not to be arrested for being funny. Quote, "'The Onion' files this brief "to protect its continued
ability to create fiction "that may ultimately merge into reality. "As the globe's premiere parodists, "'The Onion's' writers also
have a self-serving interest "in preventing political authorities "from imprisoning humorists. "This brief is submitted in the interest "of at least mitigating
their future punishment." And the brief zeros in on
the Sixth Circuit's holding that a parodist would not be protected unless they let the
audience in on the joke by warning them that
their parody is not true. "The Onion" notes that, quote, "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." Now, the hilarity of
the brief is an example of the thing it seeks to
protect: an ultras serious take on a real thing that by its
nature will fool some people. Or as "The Onion's" lawyers put it, quote, "For parody to work, "it has to plausibly mimic the original." And as "The Onion" points
out in its brief, quote, "Tu stultus es. You are dumb. "These Latin words have
been 'The Onion's' motto "and guiding light since
it was founded in 1988 "as America's finest news source, "leading its writers toward
the paper's singular purpose "of pointing out that its readers "are deeply gullible people." And they're not just crapping
on their own audience. They're making an important
point that, quote, "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." And despite the literal
falsity of parody and satire, it literally has to be false to work, it enjoys First Amendment
protection, as it should. And when assessing whether
satirical speech is defamation, the courts consider
what a reasonable reader would've understood the
author to have said, not the literal meaning of the words. And the capacity to fool
the audience is essential. So in other words, a person... Billy. No, you can't be up here. So in other words, a person
doesn't have to publish a disclaimer that the writing is fake. That would ruin the joke. Imagine how it would've
ruined the punchline of Jonathan Swift's "A Modest Proposal" which argued with a straight face that the starving Irish should
just eat their own babies. And if you're worried about
"The Onion" being humble in comparing itself to Jonathan Swift, well, you don't need to be. They write, quote, "To be clear, "'The Onion' is not
trying to compare itself "to Jonathan Swift. "Its writers are far more talented "and their output will be read long after "that hack Swift's has been
lost to the sands of time. "Still, 'The Onion' and its
writers share with Swift "the common goal of replicating a form "precisely in order to
critique it from within." And as "The Onion" points out, Swift's goals was the same,
to replicate the form, the boring economic paper, in order to critique it from within. And that's why the full
title of Swift's paper was "A Modest Proposal for
Preventing the Children "of Poor People from Being
a Burden to Their Parents "or Country and for Making
Them Beneficial to the Public." And "The Onion" writers do this every day to hilarious effect. The brief points to an
"Onion" article titled, quote, "The Supreme Court Rules
Supreme Court Rules," which is meant to mimic the
form of "The Associated Press." It starts with the sentence,
"In a landmark decision Monday, "the United States Supreme
Court ruled 8-1 that it rules." And "The Onion" follows
"The Associated Press" form straight through into the article. It says, quote, "Justice Anthony Kennedy, "writing on behalf of the
majority, noted that, quote, "'while the U.S. Constitution
guarantees equality of power "among the executive, legislative,
and judicial branches, "it most definitely does not guarantee "equality of coolness, "and in this regard, the
judicial branch kicks "that which can be construed
as total and complete ass.'" So the power of the parody
rises from that dissonance into which the reader has been drawn. And "The Onion's" brief argues that because parody mimics the real thing it has even more power to
critique the real thing. Quote, "Parodists can take apart "an authoritarian's cult of personality, "point out the rhetorical tricks "that politicians use to
mislead their constituents, "and even undercut a
government institution's "real world attempts at propaganda." For "The Onion," this has
worked time and time again since its articles tend to expose leaders who have no ability to
distinguish fact from fiction. The brief singles out one of them, Republican Congressman
John Fleming, who, quote, "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.'" Of course, Yelp reviewers
got in on the gag and reviewed the fake Kansas Abortionplex, which convinced other readers
that this was a real thing and, quote, "We taxpayers,
we're paying for it." The legendary Abortionplex story is still fooling people in 2022. And although the brief tongue-in-cheek called "Onion" readers stupid, it backtracks on that claim in explaining the mental
capacity of reasonable readers who, quote, "Do not need
to be told explicitly "what they have no serious trouble "figuring out for themselves." And the brief notes that the Supreme Court has already indicated that
disclaimers aren't needed. They refer to a footnote of the opinion of Campbell
versus Acuff-Rose, which, of course, was a
very famous fair use case where the dispute was
about whether the rap group 2 Live Crew had a right
to publish a parody of Roy Orbison's "Pretty Woman." And in that case, the
court said that 2 Live Crew need not label their whole
album or even the song a parody in order to claim fair use protection, nor should 2 Live Crew be penalized for this being its first parodic essay. ♪ Big hairy woman ♪ ♪ You need to shave that stuff ♪ - Parody serves its goals,
whether labeled or not, and there's no reason to require
parody to state the obvious or even the reasonably perceived. And "The Onion" argues convincingly that the Sixth Circuit's holding is contrary to the case law. The court ruled that
the Parma cops, quote, "Could reasonably believe "that some of Novak's Facebook
activity was not parody, "primarily because Mr.
Novak deleted comments "that made clear the page was fake." But the brief argues that the
lack of explicit disclaimer makes no difference to
whether a reasonable reader would discern that this speech was parody. And "The Onion" takes issue
with the Sixth Circuit's view that the search warrants
insulates the police from liability since other
authority figures also share the same wrongheaded view of free speech. Quote, "This was not a
close call on the facts. "Mr. Novak's spoof
Facebook posts advertised "that the Parma Police
Department was hosting "a pedophile reform event "in which successful
participants could be removed "from the sex offender registry "and become honorary
members of the department "after completing puzzles and quizzes; "that the department had discovered "an experimental technique for abortions "and would be providing
them to teens for free "in a police van; "that the department was
soliciting job applicants, "but that minorities were, quote, "'strongly encouraged' not to apply; "and that the department
was banning city residents "from feeding homeless
people in, quote, 'an attempt "to have the homeless population
eventually leave our city "due to starvation.'" So yeah, you'd have to
be pretty dumb to think that the Facebook posts
were real and also criminal. Novak can't help it if a magistrate judge and city attorney are closer to the lowest common denominator than the average reasonable reader. And "The Onion" also argues that parodists should not be
prosecuted for telling jokes. Now this seems self-explanatory, so "The Onion" lawyers
crafted a couple paragraphs just to keep your attention. Quote, "This is the 15th 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's 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 pros. "Bona vacantia. "De bonis asportatis. "Writ of certiorari. "De minimus. "Jus accrescendi. "Forum non conveniens. "Corpus Juris. "Ad hominem tu quoque. "Post hoc ergo propter hoc. "Quod..." I know all of these things,
and it's so hard to say. "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 curve
ball 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're
about to write an amicus brief "about the value of parody. "Buckle up, because
we're going to be doing "some fairly outre things, "including commenting on
this text's form itself.'" So yeah, it's not good
to punish funny people for saying funny things, even if those things may be offensive. And "The Onion" promises to, quote, "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." And this YouTube channel agrees. Now normally a lawyer's
conclusion is a pretty dry summary of what they want the court to do, but here "The Onion" aims high once again. Quote, "The petition for
certiorari should be granted, "the rights of the people vindicated, "and various historical wrongs remedied. "'The Onion' would
welcome any of the three, "particularly the first." So what happens next? Well, the Supreme Court will decide whether to take Novak's case or not and potentially overturn the
Sixth Circuit's decision. If it does not, then the Sixth Circuit
decision remains good law despite it being bad law. But you'll be able to read all about the Supreme
Court's next decision in today's sponsor, Morning Brew, because that's my favorite way to catch up with pop culture and the news. In fact, you could have already learned about "The Onion's" brief
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