“[F]or parody to work, it has to plausibly mimic the original.”

October 3, 2022 1:51 PM

Anthony Novak made a parody facebook page of the City of Parma’s police department.
The cops arrested him, charged him with a felony, and lost. Novak sued the cops for ignoring that his site was a parody. He lost his case. He appealed to the sixth circuit and lost again.. Now, it’s on the docket for this Supreme Court term.
Most importantly (to me), The Onion has filed an amicus brief in support of Novak that jokes around but makes a serious argument.
posted by Going To Maine (62 comments total)

The public is afraid of being killed by cops, and cops are afraid of being laughed at by the public.

A very familiar refrain.
posted by seanmpuckett at 1:59 PM on October 3, 2022 [140 favorites]

@seanmpuckett

ooooohhhhh. That was a very apt metaphor. Points to the imbalance of power inherent in this situation.
posted by indianbadger1 at 2:08 PM on October 3, 2022

Wow - "The page was viewable online for just 12 hours before Novak took it down."
posted by davidmsc at 2:09 PM on October 3, 2022 [4 favorites]

And this from amicus brief: ""The Onion is the world’s leading news publication, offering highly acclaimed, universally revered coverage of breaking national, international, and local news events. 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." :-D
posted by davidmsc at 2:11 PM on October 3, 2022 [48 favorites]

I have a feeling this court is gonna squeeze some wild precedent out of this ruling
posted by Jon_Evil at 2:12 PM on October 3, 2022 [6 favorites]

As enjoyable as the Onion's amicus brief was, I too am worried that the court will do something weird and wild with this.
posted by nubs at 2:18 PM on October 3, 2022 [10 favorites]

That Onion amicus letter is really amazing. I suggest you read it through to the end.
posted by hippybear at 2:20 PM on October 3, 2022 [13 favorites]

The Onion's amicus ends:

Respectfully submitted,
STEPHEN J. VAN STEMPVOORT

Parody being hard to distinguish from reality indeed, I had to google to find out this is a real lawyer and not one of The Onion's made-up names, e.g. T. Herman Zweibel
posted by AzraelBrown at 2:21 PM on October 3, 2022 [51 favorites]

To meet his burden, Novak argues that Riley and Connor violated his clearly established right to be free from retaliatory arrest. He suggests the arrest was retaliatory because the officers based it on his Facebook page—which he argues is parody protected under the First Amendment. But there’s no recognized right to be free from a retaliatory arrest that is supported by probable cause. See Reichle v. Howards, 566 U.S. 658, 663 (2012). So to prevail on his claim, Novak must show it was clearly established that the officers lacked probable cause to arrest him. Because he hasn’t done so, the officers are entitled to qualified immunity.

Fucking qualified immunity bullshit.
posted by Ickster at 2:29 PM on October 3, 2022 [32 favorites]

The onion's brief is amazing and also has me slamming the "rhetoric professor alert" button (aka tagging my colleagues in Teams).
posted by Tesseractive at 2:48 PM on October 3, 2022 [1 favorite]

if only novak could somehow tie his parody in with some kind of christianity, because the only expansion of rights we can expect from this grim court of supreme morons is the rights of christian authoritarians
posted by dis_integration at 2:49 PM on October 3, 2022 [16 favorites]

So I had to slow down before I realized the City of Parma is in the US and not Italy, wondering all the while about why the Carabinari would be at all interested in this when there's all that good ham & cheese going on.
posted by chavenet at 3:02 PM on October 3, 2022 [4 favorites]

From their brief:

The Onion could do something like: “Supreme
Court Rules Supreme Court Rules.”5 The Onion could
push the parody even further by writing the joke out
in article format with, say, a quote from the Justices in
the majority, opining that, “while the U.S. Constitution
guarantees equality of power among the executive, leg-
islative, and judicial branches, it most definitely does
not guarantee equality of coolness,” and rounding off
by reporting the Supreme Court’s holding that the
Court “rules and rules totally, all worthy and touched
by nobody, in perpetuity, and in accordance with Article
Three of the U.S. Constitution. The ability of the Pres-
ident and Congress to keep pace with us is not only
separate, but most unequal.”

posted by straight at 3:04 PM on October 3, 2022 [1 favorite]

Slightly saddened to find the Onion doesn't cite Arkham v. Pressdram as precedent.
posted by chavenet at 3:06 PM on October 3, 2022 [3 favorites]

Now we get to have this Court rule on if “[They] are stupid.”
posted by rubatan at 3:12 PM on October 3, 2022

“And the stakes here are significant, involving no less than one of many more or less equally important components of social and political discourse.“
posted by nickmark at 3:17 PM on October 3, 2022 [5 favorites]

"Go ahead, threaten me like you have the American people for so long! You’re part of a dying breed, Hapsburg, like people who can name all fifty states! The truth hurts, doesn’t it, Hapsburg? Oh sure, maybe not as much as landing on a bicycle with the seat missing, but it hurts!”

-Frank Drebin, Naked Gun
posted by clavdivs at 3:33 PM on October 3, 2022 [7 favorites]

Fantastic, that was great. Although after reading that I'm having slight doubts that they should have been my sole source of Gulf War coverage.
posted by true at 4:01 PM on October 3, 2022 [2 favorites]

The Onion document is priceless.
posted by jenfullmoon at 4:02 PM on October 3, 2022

Wait a minute! This post is a parody of a Metafilter post about a parody of a police department webpage involved in a parody Supreme Court case involving parody briefs - isn’t it! None of this actually happened! You almost got us Going to Maine!
posted by vorpal bunny at 4:18 PM on October 3, 2022 [2 favorites]

The Onion is absolutely correct that parody can only deliver most of its impact when it's delivered in a way that straight-facedly apes the thing it's parodying.

Exhibit A: Laura Kuenssberg, flagship political reporter of the BBC gave one of her typical soft-soap Tory interviews with leading then-candidate, radical right-winger Liz Truss in the Conservative party leadership election, where the winner would become UK PM. Example question: "You are about to become prime minister. Can you believe it?!" – Kuenssberg. (the interview. For context, people were facing energy bills that many already couldn't afford doubling again in October, and increasing even further in Jan, and Kuenssberg was unable to extract any details of what her plans were, if any, having previously declared 'no handouts', just tax cuts for the wealthiest.)

Joe Lycett, as the token comedian on the panel, then gave his response, and it is a *masterpiece* that Kuenssberg just doesn't know how to deal with.

The backlash, especially from the rightwing media outrage machine was substantial.

Fortunately we're not quite yet at the point in the UK where Joe Lycett got locked up for it, but we're definitely closer to it than is comfortable. For a previous joke at a gig, Joe Lycett was reported to the police by an audience member - and he was indeed investigated by the police.
posted by Absolutely No You-Know-What at 4:23 PM on October 3, 2022 [44 favorites]

We really need a congressional repeal of Qualified Immunity (and I say repeal here specifically because this IS legislation, just not legislation born of the right house) followed swiftly by a regulatory agency. They already only solve 4% of major crimes, it’s not going to get noticeably worse if they aren’t operating at whatever they consider to be peak efficiency.
posted by Slackermagee at 4:34 PM on October 3, 2022 [15 favorites]

Completely eliminating QI might be a step too far, but it definitely needs some serious fucking rework. It's a ridiculous catch 22 by which nothing can become a "clearly established" right because any case that could serve to clearly establish a right gets tossed because of QI. At best (from the perspective of the police) QI should nullify damages (but not attorney's fees) in cases where there really is no bright line rule already existing. Ideally, though, it would be tossed entirely and cops (or their employers) could instead choose to buy insurance that would cover them in the case of a good faith mistake that QI ostensibly exists to indemnify them against.

It's also ridiculous that QI was even upheld in this case. Parody is indeed a clearly established right, as noted by the many citations in The Onion's amicus brief. Even if the police were operating under the belief that they had probable cause, they damn well should have known that they were arresting someone for protected speech and rethought their course of action.
posted by wierdo at 5:00 PM on October 3, 2022 [2 favorites]

dis_integration: if only novak could somehow tie his parody in with some kind of christianity, because the only expansion of rights we can expect from this grim court of supreme morons is the rights of christian authoritarians

Maybe The Babylon Bee is available?
posted by dr_dank at 5:11 PM on October 3, 2022 [1 favorite]

Qualified Immunity is already done and dead in some states. I haven’t seen any reports that it’s been anything but good for it to be gone.

Also, this case makes me extremely nervous. Hell of a gamble that I wish wasn’t being taken, and I think that says everything about this current court. The people shouldn’t be scared of how the supreme court will rule.
posted by Bottlecap at 5:11 PM on October 3, 2022 [16 favorites]

Then we will set up 52 Stan Laurel blow dolls on front of the Supreme Court.
posted by clavdivs at 5:17 PM on October 3, 2022 [2 favorites]

The answer is right in front of us, people: they need to be arguing in favor of Qualified Immunity for Comedians and Parodists. Then the Supremes would find themselves in the uncomfortable position of finding either for protected speech without fear of recrimination or against the principle of Qualified Immunity.
posted by It's Raining Florence Henderson at 5:29 PM on October 3, 2022 [4 favorites]

I'll be honest, given the stuff that cops usually get QI on this seems relatively mild.

In theory the court could 1) grant QI in this case, and 2) establish that no, you can't arrest people for parody, which would in theory deny this defense to cops going forward.
posted by BungaDunga at 5:32 PM on October 3, 2022

I feel like this should be a clear cut case, but under this court I definitely feel my sphincter clench.
posted by corb at 5:40 PM on October 3, 2022 [5 favorites]

In theory the court could 1) grant QI in this case, and 2) establish that no, you can't arrest people for parody, which would in theory deny this defense to cops going forward.

Yeah, but wouldn't it be nice if the police punished for this obviously bullshit retaliatory investigation and arrest?
posted by Ickster at 5:41 PM on October 3, 2022 [2 favorites]

On top of that, the way the SC interprets QI, only another scenario in which the police were being parodied with a fake page on Facebook would be outlawed. Presumably setting up a parody police Twitter account would of course be completely different.
posted by Ickster at 5:42 PM on October 3, 2022 [7 favorites]

“[F]or parody to work, it has to plausibly mimic the original.”

It just occurred to me that a parody of The Onion would have to be a legitimate news site.
posted by It's Raining Florence Henderson at 5:49 PM on October 3, 2022 [11 favorites]

Completely eliminating QI might be a step too far, but it definitely needs some serious fucking rework.

I know it's not the same since Stephen Fry left, but that seems a bit excessive.
posted by How much is that froggie in the window at 6:40 PM on October 3, 2022 [32 favorites]

Well, I've been a little disappointed by the Onion's recent content, but *this*, *this* redeems all.
posted by storybored at 7:20 PM on October 3, 2022 [1 favorite]

That whole Onion brief is a thing of beauty.
Good thing the right-wing Justices are renowned for their sense of humor.

Hey, I think this satire thing could catch on!
posted by Mchelly at 7:57 PM on October 3, 2022 [5 favorites]

I think going after Qualified Immunity here is an overreach. It's not an especially strong test case for that, while it does seem to be for a right to parody under the First Amendment.

Honestly I would not expect this Court to weaken the doctrine of qualified immunity; my guess is that even some of the moderate Justices would consider that to be a proper function of the Legislature. There's a pretty straightforward legal argument that runs from Chisholm in 1793, to the Eleventh Amendment, to Hollingsworth in 1798, right through to Alden v. Maine in 1999, which establishes the doctrine of sovereignty and the Supreme Court's limits on its own power, and then you merely need to assert the pretty obvious argument that a state law enforcement officer acting in their role pursuant to statute is an extension of the state, therefore their level of immunity is defined by state law, therefore the proper remedy is via the ballot box and the legislatures of the states. QED.

It's a total punt, but my guess is that with the current composition of the court, it's the best we're going to get. It's likely the best we'll get in a generation.

But the First Amendment arguments might be a slightly less uphill path. The right to parody is very long-established (great opportunity for someone to cite the Court of King's Bench; the originalists might pop boners so hard they'll keel over on the spot), and if you view the Court as a political animal, it seems unlikely that it wants that much publicity so soon after overturning Roe, and just having agreed to take on the Section 230 issue.
posted by Kadin2048 at 8:09 PM on October 3, 2022 [2 favorites]

Alito and the other radicals of the stolen Conservative majority appear to be rather stung by the questions people are raising about the legitimacy of the Court as currently constituted, and my fear is that they could use this case to ratify police and judicial power to shut down online speech they don’t like prior to obtaining any kind of conviction, because if they don’t have that power, they are going to see a lot of online speech they don’t like over the next few years.
posted by jamjam at 9:55 PM on October 3, 2022 [1 favorite]

*chef's kiss* for that brief.
posted by birdsquared at 10:01 PM on October 3, 2022 [1 favorite]

THE FOOTNOTES!
posted by I_Love_Bananas at 3:35 AM on October 4, 2022 [1 favorite]

Tu stultus es. You are dumb. These three 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.

The Onion’s motto is central to this brief for two important reasons. First, it’s Latin. And 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” into their spouses’ ears. They mutter “cui bono” under their breath while picking up after their neighbors’ 5 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.


It's just.... !!!! I live.
posted by I_Love_Bananas at 3:40 AM on October 4, 2022 [3 favorites]

Wow. Has anyone even read that brief? Grand Rapids didn't even exist until 70 years after they allegedly founded the newspaper, which would have obviously been called L'oignon, because that territory was still French at the time. I also doubt they control the majority of transoceanic shipping lanes or have anywhere close to 350,000 employees.
posted by snofoam at 4:44 AM on October 4, 2022 [2 favorites]

Well, sure, now that we're ramping up to the holiday season it'll be more like 400,000.
posted by box at 5:13 AM on October 4, 2022 [10 favorites]

If The Onion has to lead with "none of this is true" every time, where does this leave Fox News Channel? Just wondering.
posted by skippyhacker at 6:09 AM on October 4, 2022 [15 favorites]

They sweetly whisper “stare decisis” into their spouses’ ears. They mutter “cui bono” under their breath while picking up after their neighbors

You know that these were originally swapped and decided to be too dirty
posted by a robot made out of meat at 6:31 AM on October 4, 2022 [5 favorites]

my fear is that they could use this case to ratify police and judicial power to shut down online speech they don’t like prior to obtaining any kind of conviction, because if they don’t have that power, they are going to see a lot of online speech they don’t like over the next few years

Given that we're in completely uncharted crayzpants territory with SCOTUS, I think it's not entirely impossible that they'll find a way to either just gut the parody exemption from the 1st Amendment altogether, or at the very least take away the ability of citizens to parody authoritarian-aligned occupations and groups; i.e., cops, troops, clergy, etc.
posted by Glegrinof the Pig-Man at 6:36 AM on October 4, 2022 [1 favorite]

They sweetly whisper “stare decisis” into their spouses’ ears.

Not any more they don't.
posted by kirkaracha at 8:02 AM on October 4, 2022 [2 favorites]

Betty Bowers is worried.
posted by aiq at 8:30 AM on October 4, 2022 [2 favorites]

Reading the rest of the brief, I was hoping to hear from James Anchower, Esq on why “the whole thing is a buzzkill, supremos “ or concerned citizen Ms. Jean Teasdale as to why the town’s original case is “a big ‘ol load of poopie. Even worse than the john at the Teasdale household when Rick comes back from two-for-one wing night at Tacky’s Tavern”.
posted by dr_dank at 8:50 AM on October 4, 2022 [4 favorites]

I will be sending this to the best teachers I know. Lucky it's early enough in the American school year that they probably haven't had the students read A Modest Proposal yet (alongside several straight-laced works, as it ought to be)
posted by shenkerism at 8:54 AM on October 4, 2022

There's a big problem as I see it with two of The Onion's arguments. "Parody Functions By Tricking People Into
Thinking That It Is Real." and "A Reasonable Reader Does Not Need A Disclaimer To Know That Parody Is Parody."

These hinge largely on the ability of a "Reasonable" reader to pick out what is ridiculous enough to be parody, however, as The Onion's brief points out, we've crossed the line where things that once were absurd enough to be obvious parody actually happened. The standard has moved dramatically, not because parodists have changed, but because the parodied have gone absolutely batshit fucking insane.

A former president stealing highly classified documents and stashing them at his Florida resort, possibly even sharing them deliberately with foreign governments? Absolutely absurd. Obvious parody. Oh wait - it happened. Police luring people under hilariously unconstitutional false pretenses? Gotta be parody, right?

Parody should certainly be protected speech, but it's going to be really damn difficult to apply a "reasonableness" test when reality is getting way crazier than what even The Onion can make up.
posted by mrgoat at 8:55 AM on October 4, 2022 [3 favorites]

The Onion's brief is a delight from top to bottom but I'm especially impressed with their dedication to disrespecting Jonathan Swift.
posted by Holy Zarquon's Singing Fish at 9:04 AM on October 4, 2022 [5 favorites]

Listen, everyone's dying of jealousy. Do you know how rare it is to be able to write a funny brief and have it be completely appropriate and on-point???????????? I may never get to do it!
posted by praemunire at 9:14 AM on October 4, 2022 [5 favorites]

Sitting as I am, only a few miles from the Parma in question, and having just returned from work there... I can only say how entirely unsurprising it is that the Parma police department would let this go this far. Parma is awful, everyone knows this.
posted by SystematicAbuse at 9:22 AM on October 4, 2022 [2 favorites]

While we're at it, the Weird Al parody of "Karma Police" almost writes itself.
posted by cardboard at 9:24 AM on October 4, 2022 [4 favorites]

Do you know how rare it is to be able to write a funny brief and have it be completely appropriate and on-point???????????? I may never get to do it!

I know what you mean, praemunire. I sent in my own abacus brief, but it was rejected. They claimed my primary argument didn't count.
posted by It's Raining Florence Henderson at 9:25 AM on October 4, 2022 [18 favorites]

(boooooooo)
posted by praemunire at 9:28 AM on October 4, 2022 [7 favorites]

we've crossed the line where things that once were absurd enough to be obvious parody actually happened. The standard has moved dramatically, not because parodists have changed, but because the parodied have gone absolutely batshit fucking insane.

In a world where this is true, perhaps the most sensible course of action is to prohibit politicians, oligarchs and celebrities from doing anything in earnest that a reasonable person would assume is clearly parody.
posted by snofoam at 2:25 PM on October 4, 2022 [2 favorites]

I would vote for the Defense of Parody Enactment, because it would be DOPE.
posted by snofoam at 2:32 PM on October 4, 2022 [6 favorites]

I'm hoping The Onion also sends in the jurisprudence fetishist to help things out.
posted by Pyrogenesis at 10:46 PM on October 4, 2022 [1 favorite]

The writers at The Onion had a very very good time writing this brief. and it's brilliant.
posted by bluesky43 at 6:55 AM on October 5, 2022 [1 favorite]

Also this has the same ring to it as the defense for the Kraken Lady.
posted by bluesky43 at 6:59 AM on October 5, 2022

Alexandra Petri, Washington Post:

As someone else whose job hinges on the ability to write parody without being detained by the state, I also wanted to chime in.

As is customary in arguments of this kind, I am now going to quote an ancient writer. I have chosen Juvenal, the ancient Roman satirist: “When you live in a time like this, it’s impossible not to write satire.” The world is so bizarre that you wind up writing satire whether you want to or not. One man’s ominously heightened, on-the-nose parody is another man’s straightforward accounting of the news. When the world is continually absurd without being funny, you want to turn to a form that tries to allow other people to recognize the absurdity with you.

Unfortunately, when you write parody, or try to, people do not usually say, “Ah! Thank you for this vital service! Just like Juvenal! You are elevating the culture.” Instead, for as long as people have been writing satire, other people have gotten mad about it — both its targets (such as the police department!) and others. Or, sometimes worse, people have been … not mad. If Jonathan Swift’s inbox was anything like mine, he had to deal with a few, “Solve the famine by eating the Irish babies? FINALLY! SOMEONE SAYING WHAT WE’RE ALL THINKING!!!!”

Fundamentally, parody is an act of optimism. As the Onion says, it depends upon the “reasonable person” standard. Have you met the country, recently? Have you met the world, recently? Only an optimist would look around right now and feel convinced that there existed such a thing as a “reasonable person,” let alone one who could be used as a standard in legal cases.

posted by jenfullmoon at 3:14 PM on October 10, 2022 [4 favorites]