PARMA, Ohio — "The Onion," a website best known for its parodies and satirical news stories ranging from international politics to local ballot issues, has waded into a real and legitimate free speech case involving a Parma man, his satirical Facebook page and his First Amendment rights. The preeminent parody site filed an amicus brief, a legal filing by an outside party seeking to influence the court, in order to urge the Supreme Court justices to take the case involving Anthony Novak, who sued the City of Parma after city police charged him in connection with a parody police Facebook page in 2016. Novak was later acquitted.
The friend-of-the-court brief filed by The Onion, which bills itself as "America’s Finest News Source," reads as you might expect. There are outlandish claims, including the statement that it has a daily readership of 4.3 trillion people and, in addition to 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 15-page legal document includes proper citations of past court decisions right next to satirical quips like “the federal judiciary is staffed entirely by total Latin dorks.” Unlike the vast majority of other amicus briefs filed with the Supreme Court, The Onion’s filing provides as much levity as it does legal arguing.
“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,” the amicus brief said. “So, when The Onion learned about the Sixth Circuit’s ruling in this case, it became justifiably concerned.”
Broadly at issue are Anthony Novak’s constitutionally-protected rights to free speech, which are pitted against the qualified immunity of Parma police, a legal doctrine that provides some legal immunity for government workers even if they allegedly violate someone’s constitutional rights.
In 2016, Novak created a fake Facebook page purporting to be that of the Parma Police Department. The fake page was live for less than a day and had less than 100 followers on Facebook before Novak took it offline, according to the lawsuit. During the page’s short life on the internet — where gullibility is oftentimes a feature, not a bug — the fake Parma police page had posts supporting a ‘law’ against feeding the homeless; offered job postings that encouraged minorities not to apply, as well as one post advertising a police-sponsored abortion event.
Although the page was online for mere hours, Parma police reported 11 calls into their non-emergency line from residents that were either concerned about the fake page or those that wanted to make police aware of it. After launching an investigation, Parma police arrested Novak, the page’s creator, and charged him under an arguably broad state hacking law against using a computer to disrupt a public service.
Novak was eventually acquitted and, later, sued the City of Parma and the individual officers that investigated and arrested him, claiming that his constitutional rights to free speech were violated. In past cases, including the landmark 1988 case involving Hustler Magazine and televangelist Jerry Falwell, the Supreme Court has held that satire and parody are protected speech.
However, despite those constitutional protections, the Sixth Circuit Court of Appeals back in May ruled in favor of Parma, determining that the officers’ qualified immunity shielded them from being sued for allegedly violating Novak’s constitutional rights. Novak has appealed the lower court’s decision to the Supreme Court.
Novak is represented by Patrick Jaicomo, a senior attorney at the non-profit civil liberties law firm, the Institute For Justice. Subodh Chandra of the Cleveland-area Chandra Law Firm is also listed as an attorney of record.
On Tuesday afternoon, Jaicomo said The Onion’s amicus brief both shows and tells the Supreme Court justices the importance of parody and satire, particularly when it comes to the First Amendment. Additionally, the filing could also increase the chances that the nation’s highest court will accept Novak’s case. For context, the Supreme Court routinely accepts less than 1% of the cases it receives.
“With [Novak’s] case being at the [certiorari petition] stage, essentially we’re asking the Supreme Court to take the case. To accomplish that we need to explain to the court why it’s so important. There is no better voice in the United States to explain to the Supreme Court to take a case involving parody than The Onion as America’s primary parodist,” Jaicomo said. “There is no question that these briefs do in fact influence the court’s decision to take cases. I certainly expect that every member of the court and their staff in chambers will have paid much more attention to this amicus than your average amicus. That goes an extremely long way in a circumstance like asking the court to take cases.”
In its filing, The Onion argued the Sixth Circuit’s decision in Novak’s case greatly undermines the effectiveness of parody and satire, especially when used to poke fun at elected officials.
“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,” the brief said. “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.”
Regarding the constitutional issues at the core of Novak’s case, Jaicomo said the Sixth Circuit’s ruling has the potential to erode other constitutional rights when pitted against the qualified immunity doctrine.
“The punch line of all of this — and it’s not funny, although the amicus brief is — is that you only have a First Amendment right or a Fourth Amendment right or any right under the Bill of Rights if you can enforce it,” Jaicomo said. “Doctrines like qualified immunity leave a lot of circumstances where there is a right without a remedy…. On the one hand, speech needs breathing room to ensure that it’s not chilled. On the other hand, it says government workers need qualified immunity for breathing room to do their jobs. Now, we’re saying there is only enough air in this room for so much breathing, which breathing will be done?”
