The Onion – a publication best known for its tongue-in-cheek, satirical postings on politics and world events – has taken the very serious step of filing an amicus brief before the Supreme Court.
It is wading into legal advocacy by asking the high court to hear a case about an Ohio man who was arrested and later acquitted for creating a fake Facebook page that looked nearly identical to a local police department’s site.
“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 site’s lawyers wrote.
Indeed, The Onion said the headlines surrounding this case seemed like they were ripped off the front pages of its own publication.
The Onion’s amicus brief is itself written in a very tongue-in-cheek, satirical way, though its ultimate aim is genuine – to convince the Supreme Court to take up the case involving free speech and qualified immunity, a legal doctrine that largely shields law enforcement officers from constitutional claims and one that the justices have largely avoided questioning in recent cases.
“The Onion cannot stand idly by in the face of a ruling that threatens to disembowel a form of rhetoric that has existed for millennia, that is particularly potent in the realm of political debate, and that, purely incidentally, forms the basis of The Onion’s writers’ paychecks,” the brief says.
The man at the center of the case, Anthony Novak, was arrested in 2016 after he launched the Facebook page that mirrored the Parma Ohio Police Department’s official Facebook page. Police accused Novak of posting derogatory and inflammatory information under the guise of real officials from the police department, complete with fake job postings accompanied by notifications that the department discouraged minorities from applying.
Novak was charged with one felony count of disrupting public services, but was later acquitted at trial.
Novak’s attempts to sue the police department for violating his free speech rights were most recently stopped by the Sixth US Circuit Court of Appeals, where a three-judge panel ruled in April that because officers there reasonably believed they were acting within the bounds of the law, Novak could not continue with his lawsuit against them.
But the panel of judges still was critical of the actions of the police officials.
“Granting the officers qualified immunity does not mean their actions were justified or should be condoned,” the appeals court wrote. “Indeed, it is cases like these when government officials have particular obligation to act reasonably. Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time? We have our doubts.”
Now, as Novak’s legal team asks the Supreme Court to take up its appeal, The Onion is throwing its support behind the Ohio man, saying that its own business model could be threatened if such satire is subject to police interference.
“[T]he Sixth Circuit’s ruling imperils an ancient form of discourse,” The Onion’s amicus brief warned. “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. … 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.”
The city of Parma’s response is due on October 28, meaning the court wouldn’t hear the case until next year should it choose to do so.
“The Supreme Court receives more than 5,000 certiorari petitions each year, and grants only about one percent of them,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. “As a result, sometimes the most important thing that private litigants can do to help their chances is to help draw attention to their specific case. In that respect, having a friend-of-the-court brief from The Onion that quite effectively underscores the importance of the underlying issue can’t hurt.”