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Culture War Roundup for the week of October 10, 2022

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The Onion filed an amicus brief a few days ago in a case called Novak v. Parma. It's been making the rounds on social media lately because it's a legitimately funny and well-written document. It may well be among the best briefs I've read in my ten years as a litigator. Attorneys often seem to forget that job one of writing is to produce something readable. Nowhere is this more important than in amici, since judges are not required to read them in the first place.

What's the culture war angle here? Surprisingly (to me, at least), the brief is an unreserved and unapologetic defense of free speech by a respectable mainstream organization. This wouldn't have been so strange a few years ago, but it seems like the mainstream line on free speech has recently shifted from "free speech is important and must be defended" to "free speech is important and must be defended as long as it's not that kind of free speech." The ACLU has famously moved away from its robust defense of free speech, and nearly every publisher and platform has caveated any pro-free-speech views with disclaimers that carve out "bad" free speech like "disinformation" and "speech that causes harm."

But the brief doesn't even allude to caveats, and in some ways can be read to expressly repudiate them. One heading is titled "A Reasonable Reader Does Not Need A Disclaimer To Know That Parody Is Parody" and boldly proclaims "True; not all humor is equally transcendent. But the quality and taste of the parody is irrelevant." Nowhere do words like "harm" or "hate" or "disinformation" appear in the brief. Nowhere does the brief even allude to the popular idea that free speech can be used to "punch down" or "marginalize."

What makes this perhaps even more remarkable to me is the fact that Novak v. Parma isn't primarily about free speech, it's primarily about qualified immunity. It would have been extremely easy to dodge the free speech issue and emphasize a much woker angle, e.g., qualified immunity prevents people of color who have been harmed or killed by police from recovering damages to compensate them and therefore qualified immunity contributes to systemic racism, etc. I suppose this theme would have made for a dour and un-funny document, but given how woke schoolmarmery has tended to destroy humor over the past decade (see, e.g. The Daily Show), it's still a pleasant surprise to see they didn't go this route.

Maybe my optimism is unwarranted, but I'm marking this down as one small data point in favor of the theory that the woke tide is receding. I don't think it's going away completely, but I do think people are getting tired of it and I'm hopeful we'll start seeing a bit less of it in our daily lives.

I think it's an insight most common among comedians that stifling constraints on the breadth of speech hits comedy first and hardest--after all, everyone's most sensitive when it's their own ox being gored. Jerry Seinfeld has been commenting for a few years now that you can't do comedy on college campuses any more. It's good to see that The Onion is showing a higher allegiance to the craft of comedy than their internal political inclinations, at least in this instance.