By Andrew Cohen
Mike Gillis had never read an amicus brief, let alone written one. As head writer of The Onion, the wildly popular media company that skewers news topics with stinging satire, it wasn’t remotely on his radar. After all, amicus briefs (submitted to a court by those who aren’t a party to the case but have a strong interest in its outcome and subject matter) are rather stodgy documents and barely known outside legal circles.
But as Gillis recently shared with a packed Berkeley Law lecture hall via Zoom, the chance to defend parody in a Supreme Court case was too good to pass up. Filed last month in support of Anthony Novak — who sued the Parma, Ohio, Police Department after officers arrested and prosecuted him for creating a parody Facebook page of their unit — The Onion’s first amicus brief became an instant sensation.
“It was very surprising that the brief went over so well,” Gillis said. “We were happy to tap into a new format to discuss why free speech is a good thing and to promote the merits of the case itself.”
The event was presented by Mass Media at Berkeley Law, a new student organization launched by three former journalists: 2Ls Nicole Antonuccio, former art director at The Onion and a founding member of Clickhole who interviewed Gillis; Devanshi Patel, former managing editor of The Juggernaut; and Caroline Lester, an award-winning writer and audio producer.
Novak’s spoof page said the department would allow convicted pedophiles to become honorary officers if they successfully completed some puzzles and quizzes. Other posts said the department was offering a new free technique for abortions to teens in a police van, soliciting job applicants for positions that minorities were strongly encouraged not to apply for, and banning residents from feeding homeless people so that they’d leave the city due to starvation.
“So it’s pretty obvious the page wasn’t real,” Antonuccio said. “Yet the police launch a criminal investigation, subpoena Novak’s contact information from Facebook, and get an arrest warrant. The SWAT team comes into his house and takes multiple digital items … even though it was clear that the page didn’t interfere with police activity.”
A jury acquitted Novak, who then sued the city of Parma for civil rights violations. A district court ruled in his favor, but on appeal the U.S. Sixth Circuit Court of Appeals held that Novak’s First Amendment parody claim wasn’t strong enough to defeat the police department’s probable cause determination that his page could interfere with their duties.
“I think parody should be a blanket right and unrelated to quality or the authority attached to the joke,” Gillis said. “I wanted to get behind the case because an unknown person should have the same rights that are accorded to us. You shouldn’t have to become famous at writing satire to be allowed to write satire.”
Onion Managing Editor Jordan LaFlure and Gillis talked to a mutual friend who works at the Institute for Justice, which helped represent Novak. Lawyers there supplied supporting cases and legal arguments for why parody need not use disclaimers, and Onion writers blended them with biting satire into a classic legal writing structure.
“The more we got into the merits of the case, the more interesting we saw the details were,” says Gillis, who has also written for The New Yorker and The Atlantic — and now the Supreme Court. “How Anthony was persecuted, the actions of the cops, and the broader discussion of First Amendment Rights and parody law. After talking with lawyers on Anthony’s side, we came out racing with ideas. I wrote 1,500 words that night.”
The amicus brief defends parody’s role in society, and argues that effective satire is created by a visually realistic framework. Salient excerpts include:
- “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. Put simply, for parody to work, it has to plausibly mimic the original.”
- “The very nature of parody … is to catch the reader off guard at first glance, after which the ‘victim’ recognizes that the joke is on him to the extent that it caught him unaware. That leverage of form — the mimicry of a particular idiom in order to heighten dissonance between form and content — is what generates parody’s rhetorical power.”
- “The Sixth Circuit ruled that the defendant officers could reasonably believe that some of Novak’s Facebook activity was not parody mainly because he deleted comments that made clear the page was fake. But the lack of an explicit disclaimer makes no difference to whether a reasonable reader would discern that this speech was parody.”
Devastating dry wit
The Onion also sprinkled its signature comedic flavor throughout the brief:
- “On top of 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.”
- “This is the fifteenth 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 is 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 prose: Bona vacantia. De bonis asportatis. Writ of certiorari. De minimis. Jus accrescendi. Forum non conveniens. Corpus juris. Ad hominem tu quoque. Post hoc ergo propter hoc. Quod est demonstrandum. Actus reus. Scandalum magnatum. Pactum reservati dominii.”
- “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.”
Not everyone gets the joke, of course. In 2012, then-U.S. Rep. John Fleming posted a link to an Onion story headlined “Planned Parenthood Opens $8 Billion Abortionplex” to warn constituents about pro-choice ramifications. Later that year, after The Onion declared Kim Jong-un the sexiest man alive, China’s state-run news agency republished the story as true alongside a slideshow of North Korea’s dictator.
“Some people just aren’t going to be able to take a joke, or understand it,” Gillis said. “Back in the day, jesters wore crazy costumes with jangly bells as a clear warning not to be taken seriously so kings wouldn’t kill them. They still did.”
Will the popularity of The Onion’s first amicus brief lead to more?
“Absolutely not — I’d have to be extremely narcissistic,” Gillis said. “We’re wildly unqualified in most cases. And if we consider ourselves more as political actors, we kind of lose our status as satirists and are more like pundits, and I don’t want to move in that direction.
“But it’s really gratifying to see how excited everyone is about this. It’s a reminder of rewarding the intelligence of readers — respecting the reader enough to razz them and screw with them.”