No.

22-293
================================================================================================================

In The
Supreme Court of the United States
---------------------------------♦---------------------------------

ANTHONY NOVAK,

Petitioner,
v.

CITY OF PARMA, OHIO; KEVIN RILEY and

THOMAS CONNOR, individually and in their official
capacities as employees of the City of Parma, Ohio,

Respondents.
---------------------------------♦---------------------------------
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
---------------------------------♦---------------------------------
BRIEF OF THE ONION AS AMICUS CURIAE
IN SUPPORT OF PETITIONER
---------------------------------♦---------------------------------

STEPHEN J. VAN STEMPVOORT

Counsel of Record
D. ANDREW PORTINGA
MILLER JOHNSON
45 Ottawa Ave. SW
Suite 1100
Grand Rapids, MI 49503
(616) 831-1700
vanstempvoorts@
millerjohnson.com

Counsel for Amicus Curiae

================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
 i

TABLE OF CONTENTS
Page
INTEREST OF THE AMICUS CURIAE ............. 1
INTRODUCTION AND SUMMARY OF ARGU-
MENT .................................................................. 2
ARGUMENT ........................................................ 4
I. Parody Functions By Tricking People Into
Thinking That It Is Real ........................... 4
II. Because Parody Mimics “The Real Thing,”
It Has The Unique Capacity To Critique
The Real Thing .......................................... 8
III. A Reasonable Reader Does Not Need A
Disclaimer To Know That Parody Is
Parody ........................................................ 10
IV. It Should Be Obvious That Parodists
Cannot Be Prosecuted For Telling A Joke
With A Straight Face ................................. 15
CONCLUSION..................................................... 18
 ii

TABLE OF AUTHORITIES
Page
CASES
Buckley v. Valeo, 424 U.S. 1, 67 (1976) .......................17
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569
(1994) ................................................................... 8, 12
Cardtoons, L.C. v. Major League Baseball Play-
ers Ass’n, 95 F.3d 959 (10th Cir. 1996) ....................17
Cliffs Notes, Inc. v. Bantam Doubleday Dell Pub.
Grp., Inc., 886 F.2d 490 (2d Cir. 1989) ....................12
Falwell v. Flynt, 805 F.2d 484 (4th Cir. 1986) ............10
Farah v. Esquire Magazine, 736 F.3d 528 (D.C.
Cir. 2013) ............................................... 6, 7, 9, 11, 12
Golb v. Att’y Gen. of N.Y., 870 F.3d 89 (2d Cir.
2017) ........................................................................11
Hustler Mag., Inc. v. Falwell, 485 U.S. 46 (1988) .... 10, 14
L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d
26 (1st Cir. 1987) .....................................................16
Milkovich v. Lorain J. Co., 497 U.S. 1 (1990) ....... 11, 16
Mink v. Knox, 613 F.3d 995 (10th Cir. 2010) ..............11
Moldea v. New York Times Co., 22 F.3d 310 (D.C.
Cir. 1994) .................................................................11
NYSE v. Gahary, 196 F. Supp. 2d 401 (S.D.N.Y.
2002) ........................................................................12
New Times, Inc. v. Isaacks, 146 S.W.3d 144 (Tex.
2004) .................................................................. 11, 13
Patrick v. Sup. Ct., 27 Cal. Rptr. 2d 883 (Ct. App.
1994) ............................................................... 11, 13
 iii

TABLE OF AUTHORITIES—Continued
Page
Pring v. Penthouse Int’l, Ltd., 695 F.2d 438 (10th
Cir. 1982) .................................................................14
Rogers v. Grimaldi, 695 F. Supp. 112 (S.D.N.Y.
1988), aff ’d 875 F.2d 994 (2d Cir. 1989)..................17
San Francisco Bay Guardian, Inc. v. Super. Ct.,
21 Cal. Rptr. 2d 464 (Ct. App. 1993) .........................5
White v. Samsung Elecs. Am., Inc., 989 F.2d 1512
(9th Cir. 1993)..........................................................17

OTHER AUTHORITIES
Emily Heil, Iranian news service cites faux On-
ion story on poll finding Ahmadinejad more
popular than Obama, Washington Post, Sept.
28, 2012, https://wapo.st/3S40T99 ............................9
Horace, Satires, Epistles and Ars Poetica 196-97
(H. Rushton Fairclough, transl., Harvard Uni-
versity Press, 1926), https://bit.ly/3Rhbm0j .............6
John Bacon, China paper falls for spoof on ‘sexi-
est’ Korean leader, USA Today, Nov. 27, 2012,
https://bit.ly/3dhatqA ................................................9
Kim Jong-Un Named The Onion’s Sexiest Man
Alive For 2012, The Onion, Nov. 14, 2012,
https://bit.ly/2MRuPDH ............................................9
Louis D. Brandeis, Other People’s Money and
How the Bankers Use It 62 (National Home Li-
brary Foundation ed. 1933) ....................................17
 iv

TABLE OF AUTHORITIES—Continued
Page
Mackenzie Weinger, Congressman links to On-
ion story, Politico, Feb. 6, 2012, https://politi.co/
3RJFa6B ..................................................................10
Mar-a-Lago Assistant Manager Wondering if
Anyone Coming to Collect Nuclear Briefcase
from Lost and Found, The Onion, Mar. 27,
2017, https://bit.ly/3S40xiP .......................................2
Mark Twain, How to Tell a Story (1895),
https://bit.ly/3UDr3Si .............................................16
Online Etymology Dictionary, https://bit.ly/
3E0WzUB (last updated Oct. 13, 2021) ...................5
Oxford English Dictionary Online (3d ed. 2005) .........5
Supreme Court Rules Supreme Court Rules, The
Onion, Jan. 22, 1997, https://bit.ly/3UcdWHG .........7
 1

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.
 2

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, https://bit.ly/3S40xiP.
 3

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 this
 4

case 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’
 5

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

3
Oxford English Dictionary Online (3d ed. 2005); see also
Online Etymology Dictionary, https://bit.ly/3E0WzUB (last up-
dated Oct. 13, 2021).
 6

ever so slightly so that the form was able to mock its

own idiocies.4
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 University Press, 1926),
https://bit.ly/3Rhbm0j.
 7

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,
Jan. 22, 1997, https://bit.ly/3UcdWHG.
6
Id.
 8

century, and yet, strangely enough, it seems to advo-

cate for solving the dilemma by cooking and eating
babies. That seems a bit cruel—until you realize that
you in fact are reading A Modest Proposal. To be clear,
The Onion is not trying to compare itself to Jonathan
Swift; its writers are far more talented, and their out-
put will be read long after that hack Swift’s has been
lost to the sands of time. Still, The Onion and its writ-
ers share with Swift the common goal of replicating a
form precisely in order to critique it from within.
That leverage of form—the mimicry of a particular
idiom in order to heighten dissonance between form
and content—is what generates parody’s rhetorical
power. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,
580-81 (1994) (“Parody needs to mimic an original to
make its point.”). If parody did not deliver that ad-
vantage, then no one would use it. Everyone would
simply draft straight, logical, uninspiring legal briefs
instead.

II. Because Parody Mimics “The Real Thing,” It

Has The Unique Capacity To Critique The
Real Thing.
Importantly, parody provides functionality and
value to a writer or a social commentator that might
not be possible by, say, simply stating a critique out-
right and avoiding all the confusion of readers mistak-
ing it for the real deal. One of parody’s most powerful
capacities is rhetorical: It gives people the ability to
mimic the voice of a serious authority—whether that’s
 9

the dry news-speak of the Associated Press or the le-

galese of a court’s majority opinion—and thereby knee-
cap the authority from within. Parodists can take
apart an authoritarian’s cult of personality, point out
the rhetorical tricks that politicians use to mislead
their constituents, and even undercut a government
institution’s real-world attempts at propaganda.
Farah, 736 F.3d at 536 (noting that the point of parody
is to “censure the vices, follies, abuses, or shortcomings
of an individual or society”) (cleaned up).
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

7
Kim Jong-Un Named The Onion’s Sexiest Man Alive For
2012, The Onion, Nov. 14, 2012, https://bit.ly/2MRuPDH.
8
John Bacon, China paper falls for spoof on ‘sexiest’ Korean
leader, USA Today, Nov. 27, 2012, https://bit.ly/3dhatqA.
9
Emily Heil, Iranian news service cites faux Onion story on
poll finding Ahmadinejad more popular than Obama, Washing-
ton Post, Sept. 28, 2012, https://wapo.st/3S40T99.
 10

movement after reading The Onion’s headline

“Planned Parenthood Opens $8 Billion Abortionplex.”10
The point of all this is not that it is funny when
deluded figures of authority mistake satire for the ac-
tual news—even though that can be extremely funny.
Rather, it’s that the parody allows these figures to
puncture their own sense of self-importance by falling
for what any reasonable person would recognize as an
absurd escalation of their own views. In the political
context, the effect can be particularly pronounced. See
Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 53–55 (1988);
see also Falwell v. Flynt, 805 F.2d 484, 487 (4th Cir.
1986) (Wilkinson, J., dissenting from denial of rehear-
ing) (“Nothing is more thoroughly democratic than to
have the high-and-mighty lampooned and spoofed.”).

III. A Reasonable Reader Does Not Need A Dis-

claimer To Know That Parody Is Parody.
At bottom, parody functions by catering to a rea-
sonable reader—one who can tell (even after being
tricked at first) that the parody is not real. If most
readers of parody didn’t live up to this robust standard,
then there would be nothing funny about the Chinese
government believing that a pudgy dictator like Kim
Jong-un was the sexiest man on Earth. Everyone
would just agree that it was perfectly reasonable for
them to be taken in by the headline.

10
Mackenzie Weinger, Congressman links to Onion story,
Politico, Feb. 6, 2012, https://politi.co/3RJFa6B.
 11

The law turns on the same reasonable-person con-

struct. The reasonable-reader test gauges whether a
statement can reasonably be interpreted as stating
actual facts, thereby ensuring that neither the least
humorous nor the most credulous audience dictates
the boundaries of protected speech. Milkovich v. Lorain
J. Co., 497 U.S. 1, 20 (1990); Mink v. Knox, 613 F.3d 995,
1005 (10th Cir. 2010); Moldea v. New York Times Co.,
22 F.3d 310, 314 (D.C. Cir. 1994); see also Golb v. Att’y
Gen. of N.Y., 870 F.3d 89, 102 (2d Cir. 2017) (“[A] parody
enjoys First Amendment protection notwithstanding
that not everybody will get the joke.”).
And the “reasonable reader” is “ ‘no dullard. He or
she does not represent the lowest common denomina-
tor, but reasonable intelligence and learning. He or
she can tell the difference between satire and sincer-
ity.’ ” New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157
(Tex. 2004) (quoting Patrick v. Sup. Ct., 27 Cal. Rptr. 2d
883, 887 (Ct. App. 1994)). “Nor is the reasonable per-
son some totally humorless drudge who cannot per-
ceive the presence of subtle invective.” Patrick, 27 Cal.
Rptr. 2d at 887. Instead, the reasonable reader’s per-
spective “is more informed by an assessment of her
well-considered view than by her immediate yet tran-
sitory reaction,” particularly “in light of the special
characteristics of satire,” which leverage that transi-
tory reaction for rhetorical effect. Farah, 736 F.3d at
536.
 12

Context matters, but even a “poorly executed” par-

11
ody is ordinarily susceptible to the intellectual grasp
of the reasonable reader. Farah, 736 F.3d at 535, 539.
Reasonable readers do not need to be told explicitly
what they have no serious trouble figuring out for
themselves. Id. at 537.
And until the Sixth Circuit’s decision, that is what
most courts have held. Some courts have expressly
held that disclaimers aren’t required for parody to be
protected. Campbell, for example, noted that “there is
no reason to require parody to state the obvious (or
even the reasonably perceived).” 510 U.S. at 582 n.17;
see also, e.g., Cliffs Notes, Inc. v. Bantam Doubleday
Dell Pub. Grp., Inc., 886 F.2d 490, 496 (2d Cir. 1989)
(“There is no requirement that the cover of a parody
carry a disclaimer that it is not produced by the subject
of the parody, and we ought not to find such a require-
ment. . . .”).
Other courts have held that parody published
without a disclaimer is nonetheless protected speech.
For example, in NYSE v. Gahary, 196 F. Supp. 2d 401
(S.D.N.Y. 2002), the district court found it “entirely
plausible” that “no one in their right mind” would be-
lieve that the defendant—who posted obscene and
vulgar messages online under the persona “Richard
Grasso”—was the real-life Richard Grasso, the CEO of
the New York Stock Exchange. Id. at 406–07. The court
in New Times similarly rejected the notion that the

11
See Gulliver’s Travels and A Tale of a Tub from aforemen-
tioned hack and rejected Onion freelancer, Jonathan Swift.
 13

absence of a disclaimer was dispositive, noting that the

reasonable reader had other “obvious clues” that an
article was parody when it reported that a six-year-old
girl was being prosecuted for her book report on Mau-
rice Sendak’s Where the Wild Things Are and included
a photo of a small child holding a stuffed animal cap-
tioned, “Do they make handcuffs this small? Be afraid
of this little girl.” 146 S.W.3d at 158; id. at 160–61; see
also Patrick, 27 Cal. Rptr. 2d at 887–88 (no reasonable
reader would have been deceived by a memorandum
purportedly written by a judge that declared a certain
legal newspaper “contraband,” announced a chambers-
by-chambers search for copies of the publication, ad-
vised fellow judges and employees to conduct their
“amorous escapades” elsewhere while the search was
being conducted, and declared the judge’s intent to sus-
pend the election of his successor and remain in office
indefinitely).
In this case, by contrast, the Sixth Circuit ruled
that the defendant officers “could reasonably believe
that some of Novak’s Facebook activity was not par-
ody” primarily because Mr. Novak “delet[ed] comments
that made clear the page was fake.” Pet. App. 8a–9a.
But the lack of an explicit disclaimer makes no differ-
ence to whether a reasonable reader would discern
that this speech was parody.
Just to be clear, this was not a close call on the
facts: Mr. Novak’s spoof Facebook posts advertised that
the Parma Police Department was hosting a “pedophile
reform event” in which successful participants could be
removed from the sex offender registry and become
 14

honorary members of the department after completing

puzzles and quizzes; that the department had discov-
ered an experimental technique for abortions and
would be providing them to teens for free in a police
van; that the department was soliciting job applicants
but that minorities were “strongly encourag[ed]” not to
apply; and that the department was banning city resi-
dents from feeding homeless people in “an attempt to
have the homeless population eventually leave our
City due to starvation.” Pet. App. 139a–41a.
True; not all humor is equally transcendent. But
the quality and taste of the parody is irrelevant. See
Hustler, 485 U.S. at 55; Pring v. Penthouse Int’l, Ltd.,
695 F.2d 438, 443 (10th Cir. 1982) (extending First
Amendment protections to a parody that had “no re-
deeming features whatever”). And there is no real
doubt that reasonable readers would have no diffi-
culty in ascertaining that Parma’s finest were not ac-
tually providing free abortions to teens in a police van,
pardoning child sex offenders on the basis of their
adeptness at puzzles, or intentionally starving the
homeless. The absence of a disclaimer lends nothing to
the analysis.
Under a proper understanding of the reasonable-
reader test, a disclaimer not only spoils the punchline
but is redundant. The Sixth Circuit’s holding stands
alone among the otherwise uniform approach courts
have taken—and not in a good way.
 15

IV. It Should Be Obvious That Parodists Can-

not Be Prosecuted For Telling A Joke With
A Straight Face.
This is the fifteenth page of a convoluted legal fil-
ing intended to deconstruct the societal implications of
parody, so the reader’s attention is almost certainly
wandering. That’s understandable. So here is a para-
graph of gripping legal analysis to ensure that every
jurist who reads this brief is appropriately impressed
by the logic of its argument and the lucidity of its prose:
Bona vacantia. De bonis asportatis. Writ of certiorari.
De minimis. Jus accrescendi. Forum non conveniens.
Corpus juris. Ad hominem tu quoque. Post hoc ergo
propter hoc. Quod est demonstrandum. Actus reus.
Scandalum magnatum. Pactum reservati dominii.
See what happened? This brief itself went from a
discussion of parody’s function—and the quite serious
historical and legal arguments in favor of strong pro-
tections for parodic speech—to a curveball mocking the
way legalese can be both impenetrably boring and be-
lie the hollowness of a legal position. That’s the setup
and punchline idea again. It would not have worked
quite as well if this brief had said the following: “Hello
there, reader, we are about to write an amicus brief
about the value of parody. Buckle up, because we’re
going to be doing some fairly outré things, including
commenting on this text’s form itself!”
Taking the latter route would have spoiled the
joke and come off as more than a bit stodgy. But more
 16

importantly, it would have disarmed the power that

comes with a form devouring itself. For millennia, this
has been the rhythm of parody: 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. As
Mark Twain put it, “The humorous story is told
gravely; the teller does his best to conceal the fact that
he even dimly suspects that there is anything funny
about it.”12
Not only is the Sixth Circuit on the wrong side of
Twain, but 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 so-
phisticated and more humorless than they actually
are.
And the stakes here are significant, involving no
less than one of many more or less equally important
components of social and political discourse. “[R]hetor-
ical hyperbole . . . has traditionally added much to the
discourse of our Nation.” Milkovich, 497 U.S. at 20
(cleaned up). Although “parody is often offensive, it is
nevertheless deserving of substantial freedom—both
as entertainment and as a form of social and literary
criticism.” L.L. Bean, Inc. v. Drake Publishers, Inc., 811
F.2d 26, 33 (1st Cir. 1987) (cleaned up).

12
Mark Twain, How to Tell a Story (1895), https://bit.ly/
3UDr3Si.
 17

This Court has traditionally been hesitant to chill

speech, and the prospect of chilling parody by impris-
oning its practitioners provides equal cause for cau-
tion. “What may be difficult to communicate or
understand when factually reported may be poignant
and powerful if offered in satire.” Rogers v. Grimaldi,
695 F. Supp. 112, 123 (S.D.N.Y. 1988), aff ’d 875 F.2d
994 (2d Cir. 1989). “ ‘[T]he last thing we need, the last
thing the First Amendment will tolerate, is a law that
lets public figures keep people from mocking them.’ ”
Cardtoons, L.C. v. Major League Baseball Players
Ass’n, 95 F.3d 959, 972–73 (10th Cir. 1996) (quoting
White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1519
(9th Cir. 1993) (Kozinski, J., dissenting)).
The Onion intends to continue its socially valuable
role bringing the disinfectant of sunlight into the halls
of power. See Buckley v. Valeo, 424 U.S. 1, 67 (1976)
(quoting Louis D. Brandeis, Other People’s Money and
How the Bankers Use It 62 (National Home Library
Foundation ed. 1933)). And it would vastly prefer that
sunlight not to be measured out to its writers in 15-
minute increments in an exercise yard.
---------------------------------♦---------------------------------
 18

CONCLUSION
The petition for certiorari should be granted, the
rights of the people vindicated, and various historical
wrongs remedied. The Onion would welcome any one
of the three, particularly the first.
Respectfully submitted,
STEPHEN J. VAN STEMPVOORT
Counsel of Record
D. ANDREW PORTINGA
Miller Johnson
45 Ottawa Ave. SW
Suite 1100
Grand Rapids, MI 49503
(616) 831-1700
vanstempvoorts@
millerjohnson.com
October 2022 Counsel for Amicus Curiae