Political Satire Is Protected Speech – Even If You Don’t Get the Joke

This blog post was co-written by EFF Legal Fellow Houston Davidson.

Should an obviously fake Facebook post—one made as political satire—end with a lawsuit and a bill to pay for a police response to the post? Of course not, and that’s why EFF filed an amicus brief in Lafayette City v. John Merrifield.

In this case, Merrifield made an obviously fake Facebook event satirizing right-wing hysteria about Antifa. The announcement specifically poked fun at the well-established genre of fake Antifa social media activity, used by some to drum up anti-Antifa sentiment. However, the mayor of Lafayette didn’t get the joke, and now Lafayette City officials want Merrifield to pay for the costs of policing the fake event.

In EFF’s amicus brief filed in support of Merrifield in the Louisiana Court of Appeal, we trace the rise and proliferation of obviously parodic fake events. These events range from fake concerts (“Drake live at the Cheesecake Factory”) to quixotic events designed to forestall natural disasters (“Blow Your Saxophone at Hurricane Florence”) to fake destruction of local monuments (“Stone Mountain Implosion”). This kind of fake event is a form of online speech. It’s a crucial form of social commentary whether it makes people laugh, builds resilience in the face of absurdity, or criticizes the powerful.

EFF makes a two-pronged legal argument. First, the First Amendment clearly protects the kind of satirical speech that Merrifield has made. Political satire and other parodic forms are an American tradition that goes back to the country’s founding. The amicus brief explains that “Facetious speech may be frivolously funny, sharply political, and everything in between, and it is all fully protected by the First Amendment, even when not everybody finds it humorous.” Even when the speech offends, it may still claim constitutional protection. While the State of Louisiana may not have seen the parody, the First Amendment still applies. Second, parodic speech, by its very definition, has no intent to cause the specific serious harm that the charge of incitement or similar criminal liabilities requires. After all, it was meant to make a point about online misinformation.

We hope the appeals court follows the law, and rejects the state’s case.