I often find the use of Latin in legal parlance exhausting. I mean why say “Sui generis” when you can call something unique? Why write “de die in diem” in stead of simply day to day?
Who talks like that?!
And yet “staffed with Latin dorks” is a phrase I would shudder to employ in the faintest reference to the courts I cover as a legal correspondent.
For several reasons, including (but not limited to) the fact that I am not particularly enthusiastic about the idea of a contempt case. Like, I think I'm better off without it, no?
And yet, The Onion — a well known American satire publication or as they like to call themselves “America’s Finest News Source” — recently filed an amicus brief (an advisory brief filed by an outsider to a case) in defence of parody, in which they said (and I parody you not!):
"The Onion’s motto (which they claimed is 'Tu stultus es') 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."
But that’s not all that they said.
The Onion, also in its humorous, satirical, Onion-esque brief, explained why learning that a man was put in jail for poking fun at the government was an uncomfortable experience for them. (Hint: the threat such arrests pose to free speech and all those who practice it).
If this amicus brief is accepted by the US Supreme Court, it will go on to set an important example and precedent both in America and abroad.
This is not only because it will reinforce the protection offered by the First Amendment (to the US Constitution) to Parody, but because it will also show how a court can stomach a joke.
The latter is crucial for countries across the word, including our own, where comedians and artists have been slapped with contempt cases (like comic Kunal Kamra and cartoonist Rachita Taneja), jailed for a joke they may not even have made (like comedian Munawar Faruqui) and a journalist has been arrested for tweeting a screenshot of an old Bollywood film (Mohammad Zubair).
Further, what The Onion has said is also by itself a good explainer on what parody really is and why it is important to protect the world's parodists and humorists. So, TBQH, the amicus brief may be rife with outlandish humour, but it comes from those who have been experts in the field since 1988, and it really is no (real) joke.
BUT WHAT IS THE CASE ABOUT?
According to The Guardian, The Onion wrote this brief urging the United States (US) Supreme Court to take on a case revolving around the right to parody.
A man called Anthony Novak was arrested and charged with disrupting a public service in 2016 after he created a page on Facebook parodying the local police page in Parma, Ohio. He was, however, subsequently acquitted.
Still, a year later, arguing that the police department was retaliating against him for employing his right to free speech, Novak reportedly sued them. But a US court went on to back the police instead. So now Novak has appealed this court’s decision at the top-most court in America.
This has led to The Onion filing the amicus brief, in which they have noted:
“Indeed, “Ohio Police Officers Arrest, Prosecute Man Who Made Fun of Them on Facebook” might sound like a headline ripped from the front pages of The Onion—albeit one that’s considerably less amusing because its subjects are real.”
According to them, the "absurdity" of an actual event such as this one “managed to eclipse” what their staff of parodists could come up with.
“Much more of this, and the front page of The Onion would be indistinguishable from The New York Times.”The Onion
WHY DID THE ONION FEEL THE NEED TO FILE THIS BRIEF?
“As the globe’s premier parodists, The Onion’s writers also have a self-serving interest in preventing political authorities from imprisoning humorists.”The Onion
The Onion confesses that they submitted the brief in the interest of at least mitigating their writers’ “future punishment” — a nod to the fact that an onslaught on right to free speech may often not be limited to one person alone, that if left unchecked, many others can potentially come under its hammer.
This is also the argument employed frequently by free speech advocates across the world. And it is true for India too —
In Mathivanan vs Inspector of Police and Ors, the Madras High Court had said that the right to be funny can be "mined in Article 19(1)(a) of the Constitution of India". But the High Court's remark came after a man was booked for offences under Sections 120B (Criminal Conspiracy), 122 (waging war against the state), and 507 (Criminal Intimidation by Conspiracy) of IPC over a mere Facebook post.
The Onion has also pointed out that their job entails challenging the actions of authoritarian and repressive regimes, which is why they were upset to see a legal ruling that fails to hold government actors accountable for jailing a parodist.
SO WHAT DID THE ONION ESSENTIALLY ARGUE?
Essentially, The Onion’s argument was:
The ruling by the US court of appeals for the Sixth Circuit, backing the Parma Police department, imperils an ancient form of discourse –– parody, ICYMI.
Arguing that the “court’s decision suggests that parodists are in the clear only if they pop the balloon in advance by warning their audience that their parody is not true,” The Onion points out that some forms of comedy do not work unless the comedian is able to deliver the joke “with a straight face”.
This makes sense because if you do something bizarre, and I tell your friends and you that I am going to make a joke about it before I make the joke about it, your friends and you are far less likely to laugh than if I just made the joke anyway.
The Onion also adds:
“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 absurdity.”
And the satire publication puts it simply too: “for parody to work, it has to plausibly mimic the original.”
There is context to this in Indian comedic traditions too. Before Netflix, and even before Bollywood, Nautanki — a folk performance form that often carried a humorous storyline — was a popular source of entertainment. A key feature of these nautanki performances was costume. This meant that an actor would dress as a policeman, a thief, a daku, for the sake of the performance. They would also inhabit the rhetorical form of their target, exaggerate or mimic the original, in order to demonstrate the latter's virtues, vices and even absurdity.
Even India's nukkad-natak (street-theatre) tradition employs this format, and their cosplay, as well as dramatisation and mimicry, is protected under Article 19 (1) (a) of the Constitution of India – which our courts are expected to prevent violation of.
The brief also points out that parody critiques real issues by mimicking them and that a reasonable reader does not need a disclaimer to know that something is parody.
American courts (such as the Supreme Court of Texas in New Times, Inc. v. Isaacks) have held that a “reasonable reader” is “no dullard” and that “he or she can tell the difference between reasonable intelligence and learning.”
This take is also quite similar to the Indian Supreme Court's stand. In Ramesh vs Union of India, the court had held that an “alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.”
WHAT DID THE ONION SAY ABOUT THE LOWER COURT'S DECISION?
The Onion, on their part, pointed out:
“The Sixth Circuit’s decision in this case would condition the First Amendment’s protection for parody upon a requirement that parodists explicitly 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 First Amendment to the American Constitution protects the freedom of religion, freedom of assembly, right to petition the government, as well as the freedom of speech and freedom of press in the United States of America.
THE BRIEF: AN EXAMPLE OF SETUP AND PUNCHLINE BY ITSELF...
Emphasising the value of parody, The Onion goes on to point out that “this brief itself went from a discussion of parody’s function — and the quite serious historical and legal arguments in favour of strong protections for parodic speech — to a curveball mocking the way legalese can be both impenetrably boring and belie the hollowness of a legal position.”
“That’s the setup and punchline idea again,” they state. Then they add that if they had merely said in the outset that they were going to do “some fairly outré things, including commenting on this text’s form itself” it would have “disarmed the 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.”
Further, they say that the court in expecting parodists to explicitly disclaim their own pretence assumes that an ordinary reader is “less sophisticated and more humourless” than they really are.
AN ELOQUENT, ARTICULATE AND COHERENT CONCLUSION
However, it remains to be seen whether the US Supreme Court will actually accept The Onion’s brief or not.
In the meantime, as some food for thought, I leave you with the most eloquent, articulate and (needless to say) coherent section of The Onion's brief:
“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.”
So, think about it?