Tag: 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.”

State Copyright Infringement Should Be About Justice

And it’s a shame that justice will not be the basis on which it is corrected. If it ever is.

Recently, the U.S. Copyright Office published its report on copyright infringement by states and state actors in response to the present circumstance whereby states are immunized against litigation for unlicensed use of protected works. As the Supreme Court held in the late 1990s, and affirmed in Allen v. Cooper (2020), Congress lacked the authority, under its Article I powers, when it explicitly abrogated Eleventh Amendment state sovereign immunity in federal suits against states for infringements of intellectual property.

I have written extensively on the background of sovereign immunity, and this post will provide a detailed account of where things stand and how they got that way. But the big bullet point of the moment is that the USCO was asked by Congress to report on the scope and nature of state infringements to discover whether a foundation exists for yet another run at legislative abrogation of state immunity for IP enforcement. The report was requested after the Supreme Court in Allen, even while acknowledging the injustice of the outcome, indicated that any new laws that set aside immunity would have to be based on evidence of widespread “intentional and reckless” infringement by state actors.

Intentional and reckless are evidentiary standards for which stakeholders representing state entities (e.g. university libraries) advocate a high bar that the alleged infringer must be proven to have knowingly made unauthorized use of a work. Conversely, entities like the National Press Photographers of America (NPPA) advocate the lower bar that the alleged infringer must act upon “something more than negligence.” Personally, I tend to think that unless one is somehow unaware that copyright law exists in the U.S., the default assumption should be that using a work without obtaining permission is most likely an infringement.

Too Much Focus on Volume and Frequency

Meanwhile, it seems that a significant injustice in this whole mess is the idea that Congress should be required to gather evidence of a large volume of state infringement presently occurring in order to meet what is called the “congruent and proportional” standard for abrogating Eleventh Amendment immunity in order to protect creators. The principle of the standard is sound enough. For a law to encroach upon a constitutional right, it must remedy a constitutional harm in a manner that is proportional to the injury being done to the first right. And in Allen, the Court held that when Congress abrogated immunity in 1990 for copyright infringement (with the CRCA), it failed to do so based on sufficient evidence of state infringements necessary to meet the “congruent and proportional” standard.

Consequently, it seems reasonable to worry that injustice may be perpetuated as a result of too much emphasis on the volume and frequency of measurable infringements because that is not how laws protecting individual rights are supposed to work. On the contrary, many laws of this nature are often meant to address minority interests in which individual rights may be infrequently yet substantially infringed—as is the case with laws mandating access to public facilities for persons with disabilities.[1] And in addition to the fact that a single copyright infringement by a state actor can do significant economic harm to an independent creator or small business (even causing self-inflicted harm to the state itself), the emphasis on quantity and frequency of infringements nationwide elides a principle beyond economics that has been woefully diminished in the whole state immunity narrative.

It is potentially regressive in many areas of national policy that the Supreme Court determined that Congress’s Article I powers do not extend to abrogating state immunity, even for the purpose of writing explicit and narrowly-tailored federal laws. And I would argue that state copyright infringement is a challenge that emphasized the nature of this dysfunction. Because of all the authorities granted to Congress in Article I, only the IP clause empowers it to pass laws with the express purpose of protecting a unique set of rights secured to individual citizens. And copyright is further distinguishable from its twin, patent law, because most of the works copyright protects are creative, personal expressions that are unavoidably intertwined with the authors’ speech rights.

So, when a state or state actor infringes copyrights, the implications are, of course, financial, but quite often much more than financial. They are acutely felt, unconstitutional violations of individual liberty. So, while I certainly hope that, for instance, Rick Allen prevails in his copyright takings claim in North Carolina, it is at the same time unfortunate that the sovereign immunity narrative is limited to treating copyright as strictly analogous to ordinary property because this view overlooks a fundamental injustice—one that is not ignored in the private sector.

Compelled Speech is an Inevitable Byproduct of Sovereign Immunity

To illustrate the point, imagine the following hypothetical that I wish we could call farfetched:  Imagine a TV commercial or promo video produced by a state-funded entity that uses music without license, written and performed by feminist icon Beyoncé, to endorse Texas’s draconian anti-abortion law. Not only would the state actor have committed prima facie copyright infringement, but any reasonable observer would consider this use of the artist’s music to be an even greater crime of compelled speech. When creative works like music are used via compulsory license at political rallies, compelled speech may occur in those instances; but in a case in which a state-funded entity or state-employed individual uses a work to convey a specific message to which the creator(s) may be profoundly opposed, the speech infringement argument is even stronger.

As I say, I wish this was an unrealistic hypothetical, but the current state of our politics indicates that it is not. And I concocted the Beyoncé scenario to draw attention to the kind of personal, and not merely financial, injury that nearly any creator experiences when her work is misused. One could easily reverse the narrative and imagine a Christian rock band’s music appropriated to endorse abortion rights, and the principles would be the same.

But, of course, most creators are not Beyoncé. They are small, independent authors of works, and the more likely scenario is one in which, perhaps a photograph is used to endorse a message with which the photographer disagrees. Unless the photographer and photograph are quite well known, the compelled speech argument would be more difficult to make, though it would still be felt by the creator of the work. In fact, in the NPPA’s written comments of September 2 to the Copyright Office, the organization stated the following:

Simply put, with state sovereign immunity for copyright infringement, states are free to present and promote their messages by using copyrighted works against the wishes of the journalists and artists who created them. A state that opposes same-sex marriage, for example, could use the images taken by a wedding photographer to promote its position on “family values.” Each infringing use of imagery, if committed by a state actor, would amount to unconstitutional forced speech.

But in any similar circumstance other than a state infringement, the author is able to enforce her copyright rights to prevent a use of which she does not approve, whether for creative, cultural, financial, or political reasons. It is, in fact, not necessary for an owner of a work to provide a reason to take enforcement action against a clear case of infringement or to deny permission to use a work in a certain way.

As was widely discussed seven years ago, the Beastie Boys sued toy company GoldieBlox for using one of their songs for the simple reason that the band does not want its music used for advertisements of any kind.[2] And no further explanation is required. So, if a commercial entity can be prevented from using a protected work to engage in speech the author chooses to shun for any reason, it should be imperative that a state actor must be equally restricted from engaging in compelled speech, as this is an unequivocal violation of the First Amendment.

So, with regard to the congruent and proportional standard, copyright infringement should not be viewed solely in terms of financial harm or through the limiting metrics of volume and frequency. It should instead be understood that copyright is unique by conferring property-like ownership in the products of individual expression, which are simultaneously protected by another (and many feel the most sacred) constitutional right. Hence, any perceived injury to the Eleventh Amendment (historical debate on its meaning notwithstanding) should be substantially overwhelmed by the amount of constitutional heft embodied in the principles of copyright.

[1] The USCO report cites Tennessee v. Lane and the abrogation of immunity to enforce the Americans with Disabilities Act.

[2] At least it did not at the time. I have not checked to see if the Beasties have since changed their policy.

To Parler or Not to Parler: It’s About the Money, Stupid

When I first learned about Parler, my immediate, half-joking, comment was that it would make the FBI’s job easier. To the extent that could be true, some might say this is one rationale to keep the site online. But separate from the efficiency of having putative domestic terrorists gather in a single chat space, many parties have asked whether AWS rescinding its deal to host the far-right social platform—followed by Apple and Google dropping the app—is an example of cancel culture. Personally, I think it’s just cancel cult, and the so-called broader implications are mostly handwringing bullshit for one simple reason:  this is all about money.

The complaint brief in the lawsuit filed by Parler against AWS alleges breach of contract (which may be valid), and it alleges violation of anti-trust law on the grounds that, for instance, Twitter has also hosted divisive and incendiary content without losing its multi-year deal with same host provider. The brief highlights the fact that, especially after Twitter dropped Donald Trump’s account, AWS cut Parler off at the moment of its greatest growth opportunity as a competing social venue. The court may even grant Parler’s request for a temporary restraining order and instruct AWS to restore the site pending further proceedings. We’ll see what AWS presents in its response.*

But the premise of the anti-trust complaint, while it may prove legally tenable, most instructively emphasizes the fact that Parler was not designed as a “conservative” social site—a venture that many real conservatives would probably tell you is a losing proposition today. Parler was designed to capitalize on the seething, conspiracy theory insanity that boiled over on January 6th and is still boiling, and which may yet tear this nation and western civilization apart. It doesn’t even matter whether Parler’s founders are ideologues. The bottom line, as any terrorism expert will tell you, is that extremism is a money-maker.

Look at the scenes of all those dupes in Washington, and what do we see as a backdrop to the violence and vandalism? We see merchandise. It’s a goddamn football riot without the game. These idiots believe they’re “taking their country back” while profiteers, led by Trump himself, are simply using them as life-size action figures in the apotheosis of American capitalism gone astray:  Outrage Incorporated. “It’s 1776!” Ted Cruz tells them. Really? The patriots of ’76 didn’t even have uniforms, let alone flags, hats, tees, and sippy cups declaring their loyalty to a single man. Those patriots froze, starved, and bled barefoot to defeat the very idea of rule by a single man.

Amre Metwally, writing for Slate, says that we should all be “very concerned” about the implications of AWS et al dumping Parler. But why the hell should that be a concern? Parler is just more short-term opportunism profiting off the decline of democracy itself. What could possibly be the downside to its disappearance? It’s a business venture, and if violent extremism is finally a bad bet, that’s what conservatives traditionally call the “free market doing its job.” Major American corporations cut ties with Trump and certain members of the GOP—not out of altruism, but because existential threats to democracy are bad for business. It’s very hard to sell toasters in the middle of a civil war.

Metwally is correct to note the tech industry’s hypocrisy when he writes:

Last I checked, Google and Apple never chucked Facebook app downloads from their stores even though violence has most certainly been incited on Facebook time and time again. Tech platforms never rushed to block access to YouTube even after it was found that it helped radicalize the Christchurch shooter. Come to think of it—why wasn’t Twitter blocked from the Google Play Store or the App Store for allowing Trump to monopolize these radical sentiments for years until we reached this breaking point?

Fair enough, but also missing the point. It is true that for years the major internet players both practiced and advocated willful blindness to all manner of toxic content until we finally reached a breaking point. And they did this because it was profitable. Period. There was never anything principled about Google or Facebook or Twitter’s laissez-faire approach to site management. “Save the internet” was a bogus battle cry (like “Take our country back”) that was repeated across the political spectrum; and in that regard, we all have a little blood on our hands for believing it.

What we should be concerned about is the underlying fallacy (a mostly liberal one by the way) that suborns an enterprise like Parler due to a fundamentalist notion of the First Amendment—one as unconnected to constitutional principles as Ted Cruz invoking Bunker Hill to an angry, privileged, mob in 2021. Frank Pasquale writes in a must-read post:

There are at least two responses to the lies, racism, and violence at the core of the attack on the Capitol. One is to simply put faith in an unfettered marketplace of ideas, hoping that a critical mass of Trumpist Republicans will back away from the idea that elections are rigged for Democrats, that millions of false votes are cast, etc. But what the recent bans reflect is a dawning realization among technology firms that this marketplace of ideas is dysfunctional. It is not self-correcting—or at least it is not self-correcting enough to prevent a significant group of persons (with the guns and votes to cause real havoc) from acting on false beliefs that, say, the presidential election of 2020 was stolen, that COVID-19 is just a bad flu, that Democratic leaders are a cabal of child abusers, and so on.

A-freakin’-men, Mr. Pasquale. The difference between Parler and Facebook might be compared to the crisis in the Republican party right now. Parler, like Trumpism, intentionally aims to exploit civilization-destroying forces for profit (and power); while Facebook, like the meekest members of the GOP, naively allowed those forces into the tent assuming they would be modified by better angels. And this was also for profit.

Sure, we can have a discussion (if a forum for discussion exists in the near future) about the amount of market control held by Facebook, Amazon, Apple, Google et al. But that should be a traditional, antitrust conversation that—unless we are truly suicidal—should reject the idea that somehow the speech right means that two plus two equals nine. Although it is no surprise that there is money to be made by launching twoplustwoisnine.com, there is absolutely nothing wrong with letting ignorance fail or with starving extremism of oxygen. We have seen the results of the opposite view, and it is the end of everything. Fuck Parler. Better they lose their shirts than we lose a whole nation.

*UPDATE: AWS filed its response on 1/12. Having read it, I would now say the TRO seems doubtful.