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.
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