Constitutional Law

The Best Brief Ever Written Is an Amicus Brief on Behalf of The Onion

Here’s how the terrible decision in City of Parma, Ohio v. Novak begins:

Anthony Novak thought it would be funny to create a Facebook page that looked like the Parma Police Department’s. The Department was not amused. In fact, officers arrested Novak and prosecutors charged him with a state crime. Novak was acquitted at trial, and he now argues his constitutional rights were violated in the ordeal. But because the officers reasonably believed they were acting within the law, Novak can’t recover.

That’s very well-written, which is why I’m quoting it. But it’s also wrong.

This guy made fun of the police department on Facebook. “Unsure what sort of case they had,” the Sixth Circuit said—as if they really believed they might have a valid one—the cops consulted the city’s “law director.” He “concluded they had probable cause” to charge Novak with a crime, specifically “illegal use of a computer to disrupt or impair police functions.” And, somehow, two judges both agreed with this and issued warrants. Police arrested Novak, searched his apartment, and took his phone and laptop. He was acquitted, and then very understandably sued the $&@% out of the city and the officers involved. But the district court tossed out his case, and the Sixth Circuit affirmed. Why? Qualified immunity, that hilarious doctrine that protects officers from lawsuits for violating a federal right unless “the unlawfulness of their conduct was clearly established” at the time they acted. As we’ve discussed before, while the theory behind this doctrine isn’t crazy, the way the law has developed is utterly insane.

Anyway, among other things, the Sixth Circuit pointed out that Novak hadn’t just posted fake stories mocking the police department, he had also modeled his page after the department’s, and “deleted comments that let on his page wasn’t the official one.” In other words, the Sixth Circuit criticized a parodist for making his parody look like the original.

Which, of course, is how parody works. And no one knows that better than the people at The Onion, who have been parodying things brilliantly for a long time now. So who better to explain this to the United States Supreme Court—now deciding whether to grant Novak’s petition for certiorari—than The Onion?

No one. That was a rhetorical question.

I urge all of you to read this brief, which is not only a terrific brief, it is also hilarious. I would kill to have the chance to do something like this, and I probably don’t have to explain to The Onion that I don’t mean that literally, although that might be what I want them to think so the person I’ll be replacing won’t see it coming. No, I don’t mean that, probably. Regardless, the authors should be extremely proud of this brief, while they are still able to be proud of things.

I’ll just point out that this brief is so good I think it would win over any reader by the end of the first paragraph, unless that person is Clarence Thomas, and should convince anyone who reads it by the end of the introduction, again unless that person is Clarence Thomas. I actually don’t know what Justice Thomas’s position on defamation is, and my suggestion that he is humorless may not be entirely fair. As you may recall, he did tell a joke in 2013, during oral argument no less.

Anyway, read this brief immediately. It’s terrific.