Category: Free Speech

Parody on Trial: The Onion Submits Amicus Brief in Novak v. Parma

On October 3, the satirical news organization The Onion filed a delightfully irreverent amicus brief with the U.S. Supreme Court in support of the petitioner seeking cert in Novak v. City of Parma, Ohio, et al. Even if you have no interest in the case, the brief is a good time—a deftly written panegyric to the art and relevance of parody that interweaves actual parody with supported legal arguments. Under its Argument I – Parody Functions by Tricking People into Thinking it is Real, the section begins …

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.

In the next paragraph, The Onion states that the first reason its motto is central to the brief is that it knows the “federal judiciary is staffed entirely by total Latin dorks.” So, it’s like that. Enjoy!

But the issues raised in this case are more complicated than The Onion’s colorful defense of parody and satire—if not with respect to plaintiff Novak’s conduct itself, then with regard to broader questions, both social and legal, on the subjects of humor and gullible people.

Background: Novak Mocks the Parma Police Department on Facebook

In March of 2016, Anthony Novak created a bogus Facebook page designed to resemble (though not precisely match) the page for the City of Parma Police Department. He then published a handful of outlandish posts that any reasonable person should recognize as satire. For instance, one post announced a “Pedophile reform event” with “puzzles and quizzes” stating that upon successful completion of the day’s activities, participants would be removed from the sex offenders list.

The police department naturally received a few phone calls from Parma citizens, and after officers investigated, Novak was arrested, tried, and ultimately acquitted on charges that he had violated an Ohio state law prohibiting the use of a computer to “interrupt” or “disrupt” police operations. According to the petition for cert at the Supreme Court, the fake Facebook page was online for twelve hours and a total of six posts were published.

After Novak’s acquittal on the criminal charges, he filed a civil suit against the arresting officers, the department, and the city, alleging that the investigation and arrest had been retaliatory in nature and violations of his First and Fourth Amendment rights on the basis that the enforcement actions stemmed solely from his protected right to mock public officials. A district court held, and the Sixth Circuit Court of Appeals affirmed, that Novak’s complaints failed to meet the standards to show the officers’ intent to cause harm and that, within the four corners of the law, the officers did not abrogate their qualified immunity from suit. In its conclusion, however, the appellate court stated …

But granting the officers qualified immunity does not mean their actions were justified or should be condoned. Indeed, it is cases like these when government officials have a 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. And from the beginning, any one of the officials involved could have allowed “the entire story to turn out differently,” simply by saying “No.” Bari Weiss, Some Thoughts About Courage, Common Sense (Oct. 19, 2021). Unfortunately, no one did.

Indeed. Even if Novak caused some limited “disruption” to the department (e.g., fielding calls from complaining or confused citizens), it should have been obvious that the content of the Facebook page was intended as satire rather than intended to “interrupt” police operations in the spirit of the broadly written state law. That all the fuss was over six posts online for twelve hours is an even stronger indictment against the officials’ decisions leading to prosecution, which justifies a fair assumption that arrest was both retaliatory and unconstitutional. The questions Novak presents to the Court are as follows:

  1. Whether an officer is entitled to qualified immunity for arresting an individual based solely on speech parodying the government, so long as no case has previously held the particular speech is protected.
  2. Whether the Court should reconsider the doctrine of qualified immunity.

The Sixth Circuit reasonably, if reluctantly, found that Novak did not prove that the officers investigated him solely on the basis of his protected speech. Instead, it held that the officers presented sufficient (if thin) probable cause to indicate that he had violated the state “disruption” law, and two magistrate judges granted warrants, and a DA independently proceeded with an indictment. So, SCOTUS may not agree that Novak’s case is ripe for the qualified immunity and speech questions presented. On the other hand, the petition describes a relevant circuit split thus:

The Sixth, Eighth, and Eleventh Circuits grant officials qualified immunity for First Amendment violations disguised as searches and seizures justified by probable cause under broadly written laws. In those circuits, censorship-by-arrest prevails. Three other circuits prioritize speech over immunity. The Fifth, Ninth, and Tenth Circuits look beyond pretext and deny qualified immunity to officials who should have known that their actions violated the First Amendment.

While we wait to see whether the Court will agree to hear this case, the serious intent behind The Onion’s hilarious brief raises some complicated questions if we look beyond Novak’s short career as a parodist in this instance.

Reasonable People

The Onion makes the broad argument that “reasonable people” do not need warning labels to identify parody—that indeed parody depends on impersonating the serious or the real. “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,” the brief states. It would, therefore, be anathema for persons in power, like police, to require some kind of notice in order to distinguish protected parody from illegal impersonation—let alone impersonation with intent to cause harm.

The Onion is, of course, right about parody as an expressive form, but the question of impersonation has become complicated in an era when mass media tools are available to anyone—to say nothing of what it currently means to be a “reasonable reader” of mass media. The Sixth Circuit, for instance, affirms that impersonating police is not protected speech “for good reason” and further notes by example the “mayhem that a scam IRS or State Department website could cause.”

In a different but related context, it would be a travesty if Alex Jones could successfully argue that InfoWars is all “opinion and hyperbole”[1] and that he is, therefore, immunized against recourse for the wanton harm he and his fans have caused the victims of the Sandy Hook murders. Not all potentially criminal speech can be made lawful by arguing some variation of the “just kidding” defense; and in the digital age, a “prankster” does not need a plurality of idiots to do a great deal of damage.

So, although I agree with The Onion that most people probably know parody when they see it, we must acknowledge that unreasonable readers abound and are living a post-parody existence that is barely literate. Content that might be assumed parody in another era turns out to be prophesy to many contemporary Americans. How is Alex Jones anything other than a joke? Ditto Pizzagate, QAnon, Mike (the pillow guy) Lindell, Steve Bannon, Marjorie Greene, the stolen election narrative, FOX News, Donald Trump, or the sincere and persistent belief that children are being harvested by Hollywood stars to make adrenochrome?

So, it is not easy to fully endorse The Onion’s premise that people have a solid grasp of the ridiculous, or that the ridiculous is easily discernable from the truth these days. Novak’s phony Facebook page, though minor and fleeting, reminds us how muddy the distinction is between lampoon and headline news. A “Pedophile reform event” may be obviously sardonic to most readers, but in a world where real people would force a child rape victim to remain pregnant, there is arguably nothing so wild the parodist can invent that does not require confirmation against fact.

So, although the officials involved in Novak’s case did not exercise common sense (as the Sixth Circuit states), the lines separating parody of public figures, outlandish lies about public figures, and the actual conduct of public figures are exhaustingly blurry—especially when the tools to spoof the real thing are available to anyone with a computer and a motive to cause mischief. Near the conclusion of The Onion’s brief, it states:

… grafting onto the reasonable-reader test a requirement that parodists explicitly disclaim their own pretense to reality is a disservice to the American public. It assumes that ordinary readers are less sophisticated and more humorless than they actually are.

It would indeed be folly to require the parodist to “disclaim his own pretense,” but it is not quite true that we can rely solely on our sophistication and sense of humor. When a friend on social media shares a real story about something balls-out crazy, don’t they often label it, “Not from The Onion.”? In fact, The Onion’s generic status in this regard partly betrays its argument about disclaimers because its brand is a flag telling readers that parody and satire are present.

It is hardly original to say that we are awash in so much conspiracy theory and crime against reason that it is often hard to imagine how the writers at The Onion hope to compete. The day Kellyanne Conway said the words “alternative facts” with a straight face on national television, many of us expected satirists everywhere to throw their pens, if not themselves, out the window. And that story was a mere party trick compared to the astonishing self-parodying events that have transpired since. So, with a deep bow to the craftsmanship in The Onion’s amicus brief, I think it is fair to say that even reasonable, comedy-literate people can be forgiven these days for wanting some assurance that what they are reading is indeed a joke.

[1] I chose these words because one of FOX News’s defense in its litigation with Dominion is that the lies it reported about corrupted voting machines are “hyperbole and opinion.”

A Sound First Amendment Decision with an Odd Fair Use Kicker

A couple of weeks ago, in my post about ghost guns and trademark infringement, I argued that the EFF is wrong to defend the anonymity of the parties who flaunted their alleged infringements on Twitter. In that case, the individuals had manufactured DIY guns (ghost guns) in collaboration with the materials and tools provided by Defcad, Inc.; they had affixed their weapons with both word and design marks owned by the gun-control advocacy group Everytown For Gun Safety; and they had posted images of their products on social media along with deprecating comments about Everytown.

Because there appears to be a triable issue of trademark infringement in which the Doe defendants are plausibly implicated, I disagree with EFF’s view that the anonymous individuals used the marks for the sole purpose of protected speech. Consequently, pursuant to Everytown’s claim of infringement, its interest in discovering the identities of those individuals is reasonable in that light.

I further argued in that post that considering anonymity as coextensive to the speech right should be weighed on a case-by-case basis, and in that example, it is absurd to allege that anonymity is necessary for the general expression of anti-gun-control views in this country. There, the plaintiff has reason to argue that anonymity is merely a strategy by Doe defendants to avoid liability rather than a means of protecting their First Amendment rights.

A Poor Use of Copyright Law

By contrast, a colleague brought a new matter to my attention recently in which a wealthy claimant of questionable nature sought to use copyright law and the provisions of DMCA Section 512(h) to expose an anonymous critic—and apparently for no purpose other than to expose and intimidate the critic. No doubt, somebody will cite this story as an example of a powerful figure “weaponizing copyright” to stifle the speech of a defenseless individual, and that’s one reason I’m writing about it. Because let’s be clear:  copyright advocates don’t appreciate copyright law being used for purposes other than to protect creative expression and promote the progress of same.

This case involves an anonymous blogger who devotes his/her energy to mocking or criticizing the uber wealthy and politically powerful, including Jeff Bezos, Elon Musk, Nancy Pelosi, et al. I have neither an opinion about, nor interest in, the content of the blogs or tweets, as there is no question that anyone, whether anonymous or not, is free to criticize anyone else, especially public figures. But apparently, this party got the attention of billionaire Brian Sheth …

In a series of six tweets accompanied by photos, an anonymous Twitter user who goes by @CallMeMoneyBags criticized Brian Sheth, a private-equity billionaire. Within a few weeks of the postings, a mysterious entity called Bayside Advisory LLC registered copyrights in the photos, petitioned Twitter to take them down, and served a subpoena on Twitter for information identifying the person behind the @CallMeMoneyBags account.

That summary is at the top of the California District Court opinion denying Bayside Advisory’s subpoena to compel Twitter to unmask MoneyBags. Bayside had made the request under DMCA Section 512(h), which allows a copyright owner to compel an OSP to disclose the identity of an alleged infringer without first filing a claim against a Doe defendant and later pursuing the party’s identity in discovery.

The rationale of the statute, when all parties are acting in good faith, is that a copyright owner with a sincere intent to protect his rights, should want to identify an alleged infringer before deciding how or whether to remedy the matter. This knowledge can benefit both rightsholder and alleged infringer. But the presumption should be the contemplation of a meritorious claim of copyright infringement and not merely an intent to expose the anonymous speaker for other purposes. That should be the only reasonable basis for enforcing the subpoena to unmask a Doe defendant under Section 512.

Here, the available facts imply a narrative in which Bayside, a party with potentially limitless resources, is misusing copyright law for the sole purpose of exposing and censoring a critic. The entity LLC appears to have been formed exclusively for the purpose of hastily acquiring the rights to the six photos at issue and then registering the works with the Copyright Office after the alleged infringement of the images by MoneyBags.[1]

Although 512(h) allows a subpoena without first filing a claim of infringement, the court clarifies that the statute expressly states that the provision is subject to Federal Rule 45 and that, “A recipient of a DMCA subpoena may therefore move to quash on the basis that the subpoena would require disclosure of material protected by the First Amendment.”

Views will vary as to whether the First Amendment encompasses a right to speak anonymously. The EFF and similar organizations seem to think it always applies; others may say it never applies. As stated in that ghost gun post, I believe it depends on whether anonymity is reasonably necessary to protect the speech at issue and whether the speech itself may not be protected, which it is not if it amounts to copyright infringement.

In this instance, the resources and legal maneuvers the claimant appears willing and able to exploit merely to silence personal criticism makes a strong case for a nexus between the speaker and his/her anonymity. This is further emphasized by the court’s reasonable inference that Sheth is hiding his own identity behind the LLC, the website for which just happens to be a one-pager with no clear purpose.

If the Court were assured that Bayside had no connection to Brian Sheth, a limited disclosure subject to a protective order could perhaps be appropriate. But the circumstances of this subpoena are suspicious. As far as the Court can tell, Bayside was not formed until the month that the tweets about Sheth were posted on Twitter.  

Suffice to say, the complaint reeks of shadiness and a deplorable use of one fragment of the Copyright Act for a purpose that appears to have nothing to do with copyright. Based on the limited facts available, I believe the court acted correctly in finding that the First Amendment considerations outweigh Bayside’s dubious intent in exposing MoneyBags’s identity.

But About That Fair Use Analysis!

Bayside alleged that “to the extent MoneyBags has any First Amendment interest in this case, it is wholly accounted for through copyright’s fair use analysis, which allows the public to use copyrighted works in certain circumstances without facing liability,” the court states. I’ll be honest and say that I have no idea what Bayside is driving at here, and perhaps it is naïve about the circuit in which it attempted this argument.

Nowhere does the fair use exception “wholly account” for the First Amendment interests of a defendant, but here, Plaintiff invites a court in the Ninth Circuit to embark on a fair use analysis, which it should have declined in this instance. The court had already established a rationale for denying the subpoena and did not need to conduct a fair use consideration as though this were a case at the summary judgment phase with sufficient evidence presented. Nevertheless …

In response to Bayside, the court noted that it is bound by circuit precedent in Lenz, it calls fair use “colloquially an affirmative defense,” and then it states, “To make a prima facie case of copyright infringement for the purposes of obtaining a subpoena, then, a party must make a prima facie case that the infringing use did not constitute fair use.” And then, to add insult to speculation the court committed that chronic error in fair use factor one, writing …

… the use is transformative. Considered on their own, the copyrighted photos may have aesthetic value. But MoneyBags was not using the photos for their artistry. Rather, by placing the pictures in the context of comments about Sheth, MoneyBags gave the photos a new meaning—an expression of the author’s apparent distaste for the lifestyle and moral compass of one-percenters.

The court’s reasoning here is incorrect as a matter of law, especially without sufficient facts presented to consider the matter more fully. But based on that paragraph alone, the court errs when it opines that commentary about the subject(s) in a photograph is inherently “transformative” and, therefore, favors a finding of fair use. Such a generalized rule would excuse nearly any media company from licensing photographs simply because editors add captions and display images along with articles composed of text.

The court had not only found a basis to deny the subpoena, but it further stated that based on the record of plaintiff’s conduct that, “… even if Bayside had made a prima facie showing of copyright infringement, the Court would quash the subpoena in a heartbeat.” That being the key finding, it makes even less sense that the court engaged in a half-blind fair use analysis and added yet another poor example of “transformativeness” to that circuit-splitting tapestry of opinions.

Independent copyright owners, who truly make a living from creative work, have a hard time protecting their rights as it is. Misuse of copyright law by wealthy and powerful individuals is both offensive and unhelpful in that it gives the anti-copyright ideologues and policy wonks grist for their mill. They cite these stories under general headlines like “copyright is broken,” and then the internet does its thing. At the same time, it is also unhelpful to the vast majority of creators when courts are tempted into fair use discussions that are speculative to the point of whimsy.

[1] The lack of timely registration is a barrier to litigation for most copyright owners because it precludes statutory damages and attorney’s fees, but if money is no object, and the intent is to censor rather than protect copyright rights, then timely registration is moot.

 

Yes, Let’s Cancel Some “Culture”

In January 2017, after far-right extremist Richard Spencer was attacked on Inauguration Day, a semi-rhetorical question began trending on social media. Is it okay to punch the Nazi? While I would tend to say that it is rarely ethical to throw the first punch at anyone, can we at least agree that it is not only fair, but morally imperative, to tell the Nazi to fuck off?

It strikes me that there are two conversations occurring on the subject of “cancel culture,” though it should really be one declaration and one conversation. The declaration should be directed at those Americans, whether they are ordinary citizens or Members of Congress, who have decided that “conservative” is now synonymous with religious or ethnic nationalism, or just plain crazy-ass nonsense like QAnon. And the declaration is simple enough: No, you are not owed a conversation, a seat at the table, a platform, or even basic courtesy because your views are well-known predicates to fascism. Take it from Serbian immigrant and author Aleksander Hemon, writing in 2018 about why he laments the deference he once showed to his best friend, as he watched that friend become consumed by nationalism until he ultimately rationalized genocide:

My relationship with the war has always been marked by an intense sense that I failed to see what was coming, even though everything I needed to know was there, before my very eyes. While Zoka took active part in enacting the ideas I’d argued against, my agency did not go beyond putting light pressure on his fascist views by way of screaming. I have felt guilty, in other words, for doing little, for extending my dialogue with him (and a few other Serb nationalist friends) for far too long, even while his positions—all of them easy to trace back to base Serbian propaganda—were being actualized in a criminal and bloody operation. 

Embed from Getty Images

The lessons of history are clear. It is not only permissible to shut down fascist propaganda, it is essential. Trumpism and its overt appeals to white nationalism and rank thuggery is an existential threat to the nation, no matter what happens next to Donald Trump himself. And the immediacy of that threat has helped write the latest chapter in the conversation about the internet and its capacity to radicalize people to the point of engaging in domestic terrorism. Because now that the immediate danger has passed, and the Facebook Oversight Board gathers to decide whether Trump gets back on that platform, the “digital rights” organizations appear to be rehashing false dichotomies when addressing the challenge at hand.

For instance, the EFF, similar organizations, and Facebook’s Oversight Board all seem to acknowledge that deplatforming Donald Trump was a critically necessary response to the insurrection of January 6. But since Biden’s peaceful inauguration, they have reprised the broad, frankly rhetorical, question that asks, Do we want Facebook and Twitter to wield so much power and to be the arbiters of truth? No, we do not want that. But it doesn’t matter because that’s the wrong question. Facebook Twitter, Google et al are not the arbiters of truth—especially not with regard to countless examples in which truth is anything but arbitrary.

There were not two sides when the former president advocated the medical advice of a witch doctor. There are not two sides to the allegations of consequential fraud in the 2020 election. And there are not two sides to the belief that a conspiracy of pedophile cannibals is running the world. The list of examples, sadly, goes on for miles; but the point is that in many instances of consequence, the social sites do not need to be arbiters of truth. Site managers can use the same resources—experts, professional journalists, courts, and common sense—that the rest of us use to know what is true, and which lies (e.g. all of the above) can be very dangerous.

Why Can’t AI Assist Ordinary Reasoning?

What we should want the major social sites to do is not judge truth, but rather to employ their considerable computing power to identify when momentum is building around narratives that have the capacity to foster acts of tremendous harm. And, by the way, making that determination is not necessarily the job of a bunch of computer programmers or sage academics, and perhaps we should simply get comfortable with Facebook et al notifying the FBI. That said, what does the tipping point look like to site managers? What clues would alert them to the possibility that a page may be transitioning from a forum for political opinions (even rancorous opinions) into a petri dish growing new domestic terrorists? The answer is not uncharted territory: it begins with that word narrative.

When this blog launched, I did a podcast interview with Christopher Dickey, who passed away in July 2020 after a long career as an international journalist, author, and expert on terrorism and extremism. In a subsequent post, I cited Dickey’s observation that there are the three ingredients found in most acts of terrorism—Testosterone, Narrative, and Theater—TNT. Narrative, he defined broadly as a “belief that one is righting some great wrong.” And I would argue that the animating word in that definition is belief. Righting wrongs can be a virtue, though not usually by violence, and never in cases when the alleged wrong does not exist—like an election that was not stolen or pedophile cannibals who are not running the government.

So, can social media managers, with the help of their all-knowing AI, determine when a false narrative (e.g. on a group page) is metastasizing into a movement, and then assess whether that movement is approaching a threshold toward dangerous action? Conversely, if the answer to that question is yes, can the social media managers also determine when chatter is relatively benign, even if it may be generally divorced from reality? Probably. Because metrics exist.

If Facebook, Google et al can influence a market decision, it seems highly likely that they can identify extremist tipping points because certain criteria (like Dickey’s TNT) will likely be present every time. For instance, I would propose the metrics virality, latent toxicity, and kinetic toxicity as three starting metrics. The first, virality, is something these companies measure all day long, and assessing relative significance is not a difficult logical leap. For example, if fifty people opine in a handful of threads that vaccines cause autism, that is not nearly so significant a measure of virality as five-million people repeating this nonsense across multiple pages.

The second metric assesses the latent toxicity of a viral narrative, which is not simply a matter of volume. Five-million adults who believe that vaccines cause autism has high toxicity, whereas thirty-million adults who believe in ghosts has low toxicity. But this assessment is also influenced by the third metric which assesses kinetic toxicity. If the action taken by the five-million antivaxxers is to shun vaccines and, thereby, force society to risk the return of polio, that action has very high toxicity. On the other hand, if half of the thirty-million ghost believers want to go specter hunting on their next vacations, that action has very low toxicity.

But, as we see happen all the time, if a splinter group of say 5,000 ghost enthusiasts coalesces around a new narrative, perhaps originating on 8Chan, that evil poltergeists are running America’s public transportation systems, this subgroup has just increased its latent toxicity based on the original narrative. At this point, the social media managers have reason to comb the splinter group’s page for kinetic toxicity, assessing whether the group is beginning to advocate, for instance, an assault on city busses and subways in order to purge the evil spirits from the system.

Nothing I just hypothesized is one bit loonier than the multiple narratives that collided at the Capitol on January 6. And none of the metrics I propose (name them or amend them however you like) is beyond the capacity of Facebook, Twitter, et al to measure and assess. The question is not whether taking such an approach is a civil liberties issue; these companies use these kinds of data all day long for their own pecuniary interests. The question is whether these companies have the moral integrity to risk losing market share by removing (or reporting) extremism, even when that extremism emanates from the highest levels of government.

Of course, it is beyond even the hubris of Zuckerberg to tackle America’s existential crisis of the moment, when it is clear that tens of millions of our citizens either do not know or do not care that the former president and members of their party committed sedition. Facebook and friends cannot solve that, but they can help mitigate galloping disinformation and nascent fascism. And they should look to their analog forebears for guidance. Returning to that same article by Aleksander Hemon, he responds to a moment when The New Yorker‘s editors first invited Steve Bannon to a discussion and then rescinded the invite, which was then called censorship by various parties. Hemon’s insight is relevant to the social platforms, if they choose to listen:

The error in Bannon’s headlining The New Yorker Festival would not have been in giving him a platform to spew his hateful rhetoric, for he was as likely to convert anyone as he himself was to be shown the light in conversation with Remnick. The catastrophic error would’ve been in allowing him to divorce his ideas from the fascist practices in which they’re actualized with brutality. If he is at all relevant, it is not as a thinker, but as a (former) executive who has worked to build the Trumpist edifice of power that cages children and is dismantling mechanisms of democracy.

Divorcing ideas from practice may be one of the most accurate expressions ever written to describe the fallacy underlying nearly all platform governance, or lack of governance, to date. And the folly needs to end now that we have seen some of the worst evidence imaginable that online madness, like QAnon, is not merely inert speech. The United States is a very delicate idea. And we have no reason to equivocate when rejecting ideas—least of all wild conspiracy theories or old ideas grounded in doctrines of cruelty—that are fatally incompatible with the nation’s existence. Fascism is the consequence of all forms of fundamentalism, and genocide is the aim of all forms of fascism.  So, yes, we must cancel that before it cancels us all. To that end, certain voices do not deserve a platform. And no apology is owed for telling them to fuck off.

Photo by: mikdam