The Onion filed an amicus brief before the Supreme Court in defense of parody under the First Amendment

So, @TheOnion filed an amicus brief before the Supreme Court in defense of parody under the First Amendment.

Court statement:

The Onion’s journalists have garnered a sterling repu-

tation for accurately forecasting future events. One

such coup was The Onion’s scoop revealing that a for-

mer president kept nuclear secrets strewn around his

beach home’s basement three years before it even hap-

pened.2

The Onion files this brief to protect its continued

ability to create fiction that may ultimately merge into

reality. As the globe’s premier parodists, The Onion’s

writers also have a self-serving interest in preventing

political authorities from imprisoning humorists. This

brief is submitted in the interest of at least mitigating

their future punishment.

——————————— ♦ ———————————

INTRODUCTION AND

SUMMARY OF ARGUMENT

 Americans can be put in jail for poking fun at the

government? This was a surprise to America’s Finest

News Source and an uncomfortable learning experi-

ence for its editorial team. Indeed, “Ohio Police Officers

Arrest, Prosecute Man Who Made Fun of Them on Fa-

cebook” might sound like a headline ripped from the

front pages of The Onion—albeit one that’s considera-

bly less amusing because its subjects are real. So, when

2 See Mar-a-Lago Assistant Manager Wondering if Anyone

Coming to Collect Nuclear Briefcase from Lost and Found, The

Onion, Mar. 27, 2017,.

INTEREST OF THE AMICUS CURIAE1

The Onion is the world’s leading news publication,

offering highly acclaimed, universally revered cover-

age of breaking national, international, and local news

events. Rising from its humble beginnings as a print

newspaper in 1756, The Onion now enjoys a daily read-

ership of 4.3 trillion and has grown into the single most

powerful and influential organization in human his-

tory.

 In addition to maintaining a towering standard of

excellence to which the rest of the industry aspires,

The Onion supports more than 350,000 full- and part-

time journalism jobs in its numerous news bureaus

and manual labor camps stationed around the world,

and members of its editorial board have served with

distinction in an advisory capacity for such nations as

China, Syria, Somalia, and the former Soviet Union.

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.

The Onion’s keen, fact-driven reportage has been

cited favorably by one or more local courts, as well as

Iran and the Chinese state-run media. Along the way,

1 No counsel for any party authored this brief in whole or in

part, and no counsel or party made a monetary contribution in-

tended to fund the preparation or submission of this brief. Timely

notice of the intent to file this amicus brief was provided to all

parties, and all parties have consented to the filing of this brief.

The Onion learned about the Sixth Circuit’s ruling in

this case, it became justifiably concerned.

First, the obvious: The Onion’s business model was

threatened. This was only the latest occasion on which

the absurdity of actual events managed to eclipse what

The Onion’s staff could make up. Much more of this,

and the front page of The Onion would be indistin-

guishable from The New York Times.

Second, The Onion regularly pokes its finger in the

eyes of repressive and authoritarian regimes, such as

the Islamic Republic of Iran, the Democratic People’s

Republic of North Korea, and domestic presidential ad-

ministrations. So The Onion’s professional parodists

were less than enthralled to be confronted with a legal

ruling that fails to hold government actors accountable

for jailing and prosecuting a would-be humorist simply

for making fun of them.

Third, the Sixth Circuit’s ruling imperils an an-

cient form of discourse. The court’s decision suggests

that parodists are in the clear only if they pop the bal-

loon in advance by warning their audience that their

parody is not true. But 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 absurd-

ity.

 Put simply, for parody to work, it has to plausibly

mimic the original. The Sixth Circuit’s decision in thiscase would condition the First Amendment’s protec-

tion for parody upon a requirement that parodists ex-

plicitly say, up-front, that their work is nothing more

than an elaborate fiction. But that would strip parody

of the very thing that makes it function.

The Onion cannot stand idly by in the face of a rul-

ing that threatens to disembowel a form of rhetoric

that has existed for millennia, that is particularly po-

tent in the realm of political debate, and that, purely

incidentally, forms the basis of The Onion’s writers’

paychecks.

——————————— ♦ ———————————

ARGUMENT

I. Parody Functions By Tricking People Into

Thinking That It Is Real.

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 gul-

lible people.

The Onion’s motto is central to this brief for two

important reasons. First, it’s Latin. And 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 deci-

sis” into their spouses’ ears. They mutter “cui bono” un-

der their breath while picking up after their neighbors’ dogs. So The Onion knew that, unless it pointed to a

suitably Latin rallying cry, its brief would be operating

far outside the Court’s vernacular.

 The second reason—perhaps mildly more im-

portant—is that the phrase “you are dumb” captures

the very heart of parody: tricking readers into believ-

ing that they’re seeing a serious rendering of some spe-

cific form—a pop song lyric, a newspaper article, a

police beat—and then allowing them to laugh at their

own gullibility when they realize that they’ve fallen

victim to one of the oldest tricks in the history of rhet-

oric. See San Francisco Bay Guardian, Inc. v. Super. Ct.,

21 Cal. Rptr. 2d 464, 466 (Ct. App. 1993) (“[T]he 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 una-

ware.”).

 It really is an old trick. The word “parody”

stretches back to the Hellenic world. It originates in

the prefix para, meaning an alteration, and the suffix

ode, referring to the poetry form known as an ode.3

 One

of its earliest practitioners was the first-century B.C.

poet Horace, whose Satires would replicate the exact

form known as an ode—mimicking its meter, its sub-

ject matter, even its self-serious tone—but tweaking it.

This is not a mere linguistic anecdote. The point is

instead that without the capacity to fool someone, par-

ody is functionally useless, deprived of the tools in-

scribed in its very etymology that allow it, again and

again, to perform this rhetorically powerful sleight-of-

hand: It adopts a particular form in order to critique it

from within. See Farah v. Esquire Magazine, 736 F.3d

528, 536 (D.C. Cir. 2013).

 Parody leverages the expectations that are created

in readers when they see something written in a par-

ticular form. This could be anything, but for the sake

of brevity, let’s assume that it is a newspaper head-

line—maybe one written by The Onion—that begins in

this familiar way: “Supreme Court Rules . . . ” Already,

one can see how this works as a parodic setup, leading

readers to think that they’re reading a newspaper

story. With just three words, The Onion has mimicked

the dry tone of an Associated Press news story, aping

the clipped syntax and the subject matter. The Onion

could go even further by putting that headline on its

website—which features a masthead and Latin motto,

and the design of which parodies the aesthetics of ma-

jor news sites, further selling the idea that this is an

actual news story.

4 Horace, Satires, Epistles and Ars Poetica 196-97 (H. Rush-

ton Fairclough, transl., Harvard, Of course, what moves this into the realm of par-

ody is when The Onion completes the headline with the

punchline—the thing that mocks the newspaper for-

mat. The Onion could do something like: “Supreme

Court Rules Supreme Court Rules.”5 The Onion could

push the parody even further by writing the joke out

in article format with, say, a quote from the Justices in

the majority, opining that, “while the U.S. Constitution

guarantees equality of power among the executive, leg-

islative, and judicial branches, it most definitely does

not guarantee equality of coolness,” and rounding off

by reporting the Supreme Court’s holding that the

Court “rules and rules totally, all worthy and touched

by nobody, in perpetuity, and in accordance with Article

Three of the U.S. Constitution. The ability of the Pres-

ident and Congress to keep pace with us is not only

separate, but most unequal.”6

 As can be seen, the Associated Press form is fol-

lowed straight through into the article. That rhetorical

form sets up the reader’s expectations for how the id-

iom will play out—expectations that are jarringly jux-

taposed with the content of the article. The power of

the parody arises from that dissonance into which the

reader has been drawn. Farah, 736 F.3d at 537.

 Here’s another example: Assume that you are

reading what appears to be a boring economics paper

about the Irish overpopulation crisis of the eighteenth

5 Supreme Court Rules Supreme Court Rules, The Onion, Time and again, that’s what has occurred with The

Onion’s news stories. In 2012, for example, The Onion

proclaimed that Kim Jong-un was the sexiest man

alive.7

 China’s state-run news agency republished

The Onion’s story as true alongside a slideshow of the

dictator himself in all his glory.8

 The Fars Iranian

News Agency uncritically picked up and ran with The

Onion’s headline “Gallup Poll: Rural Whites Prefer

Ahmadinejad To Obama.”9

 Domestically, the number of

elected leaders who are still incapable of parsing The

Onion’s coverage as satire is daunting, but one partic-

ular example stands out: Republican Congressman

John Fleming, who believed that he needed to warn his

constituents of a dangerous escalation of the pro-choice.