Six years ago, Novak, who resides in Ohio, was arrested after posting six times on the Facebook page with satirical posts and charged with a felony under a law that made it a crime to disrupt police functions using a computer. He was acquitted of the charges and sued the police officers who arrested him, saying they violated his First and Fourth Amendment rights.
However, the US Court of Appeals for the 6th Circuit ruled against him, saying that the police had probable cause to believe that the speech was criminal and they were protected under qualified immunity, which protects police and politicians from civil lawsuits unless “clearly established” rights have been violated.
The court also argued that parody is not protected speech unless the author warns the public that the content is fictional.
In its brief, which was predictably littered with bits of satire itself, The Onion contends that not allowing Novak’s case to proceed would allow government officials to attack people who make fun of them. They also argue that if satirists were required to prewarn their audiences that their content is satire, it would lose not only its humor but also the form’s unique ability to criticize institutions and society.
“[Requiring a warning would disarm] the power that comes with a form devouring itself. For millennia, this has been the rhythm of parody,” the brief states. “The author convinces the readers that they’re reading the real thing, then pulls the rug out from under them with the joke. The heart of this form lies in that give and take between the serious setup and the ridiculous punchline.”
Novak’s posts included a fake advertisement announcing that the Parma Police Department was hosting a “pedophile reform event” where participants would be able to have their names removed from the sex offender lists and become honorary police officers if they completed puzzles and quizzes.
Another said the department had discovered an experimental technique for abortions and would be providing them for free in a police van. A third post said the department was banning citizens from feeding homeless people, in an attempt to lessen the homeless problem through starvation.
The Onion brief argues that those posts would have been recognized as satire or parody by any reasonable reader and points to several court cases that ruled that disclaimers are not necessary, including NYSE v. Gahary, a 2002 case in which a satirist posted obscene and vulgar messages online under the persona “Richard Grasso,” which was the same name as the CEO of the New York Stock Exchange.
“The Onion intends to continue its socially valuable role bringing the disinfectant of sunlight into the halls of power,” the brief concludes. “And it would vastly prefer that sunlight not to be measured out to its writers in 15-minute increments in an exercise yard.”