EFF Tells Louisiana Court Satire Is Still Protected Speech Even If The Government Doesn't Get The Joke

from the an-inability-to-get-a-joke-doesn't-make-it-any-less-funny dept

Last summer, as anti-police brutality protests were in full swing, a Lafayette man posted an obviously bogus Antifa call to action on his "cajUUn Memes" Facebook page. The announcement called for "cajun comrades" to rise up and engage in a takeover of the River Ranch neighborhood.

Anyone with half a brain reading the post would have known it was a joke. It contained references to marijuana (the group was to meet at 4:20 pm) and asked that only "card carrying members" of Antifa show up. There was also the line: "Arms optional. Legs encouraged."

For some reason, neither the mayor nor the local police department got the joke. The mayor issued an official statement about the city's "zero-tolerance policy for threats to life and property" and a police spokesperson said the PD would be monitoring the event despite there being "no credible evidence" the planned takeover of River Ranch would take place.

The day came and went without any Antifa uprising taking place. That should have been the end of it. It wasn't. Two months later, the Lafayette Parish government sued John Merrifield, the man behind the joke post.

The lawsuit, filed in the 15th Judicial District in Lafayette, alleges John Merrifield cost the city-parish government money when he created two fake Facebook events that said ANTIFA would show up in the city's high-end River Ranch community and the Acadiana Mall.

The lawsuit seeks an unspecified amount of damages of less than $75,000.

"I think he should bear the brunt of some of the costs, if not all of the costs, that his actions cost the taxpayers," Mayor-President Josh Guillory said on his Thursday morning radio show.

Obviously a ridiculous take on what happened. Some monitoring by the PD occurred and Mayor Guillory got suckered into issuing a statement decrying a bogus Facebook event that was quite obviously a joke. According to the Mayor, some overtime money was spent. But that should be on him and the police department. There was no credible threat according to the PD itself, so any extra expenditures were clearly unjustified.

Merrifield's response to the lawsuit was less than contrite.

"Fool you once, shame on me. Fool you twice, shame on you," he said. "I’m not going to apologize to the citizens of Lafayette who were gullible enough to fall for a satire event created by a comedy meme page run by a satirist and comedian twice."

So, the parish took the man to court. And, you would assume, that would have been the end of it once a judge had a chance to review the government's ridiculous claims. But, no, this is Louisiana, where laws are weird and law enforcement easily duped.

A pair of fake Antifa rally event pages posted on Facebook by comedian John Merrifield are not protected by the First Amendment, Judge Ed Broussard of the 15th Judicial District Court in Lafayette ruled Monday. He allowed the lawsuit for damages, filed in September by Lafayette Consolidated Government, to proceed.

[...]

Broussard said Merrifield's "First Amendment right was not applicable" to the events because they "imply illegal activity or violence," referencing a state law that prohibits false statements that prompt an emergency response, which Adley argued the posts violated.

This insane ruling is being appealed. And now Merrifield has the EFF on his side. An amicus brief [PDF] filed by the EFF points out the obvious: speech doesn't become less protected just because the government didn't get the joke.

Fake Facebook events have been a part of online discourse ever since Facebook rolled out this feature. Faux events have placed mega-celebrities at mundane locations (Drake performing live at the Cheesecake Factory; Third Eye Blind performing at Lenscrafters).

The fake events also tend to pop up in response to newsworthy events.

[P]rank events have been used in a variety of situations, such as to lighten the stress and tension that accompanies an approaching natural disaster. Hurricane Florence in 2018, spawned several such satirical events. A musical instrument store in Cary, North Carolina "hosted" a pretend "Blow Your Saxophone at Hurricane Florence" event on September 18, 2018. Another user created a "Tell Hurricane Florence to Stop" event, scheduled for the "Atlantic Ocean." There were also events to "Boycott Hurricane Florence," "Take Hurricane Florence and PUSH it Somewhere ELSE!," "Bark at Hurricane Florence So It Will Go Away," "Yell 'Fake News' At Hurricane Florence," and, combining social media activities, "Angry Tweet at Hurricane Florence."

While some parody and satire may be more easily identified, failing to comprehend something is satirical is a failure of the reader, not legitimate subject matter for a lawsuit.

Merrifield's speech is clearly protected, says the EFF. And the state judge who ruled otherwise is wrong.

Although there are situations in which facetious speech may be actionable, it cannot support a legal claim that requires an affirmative intent to reach a harmful result. Under the First Amendment,"an actual subjective intent to produce future criminal consequences is required to transform 'protected' into 'unprotected' and legitimately proscribable speech." City of Baton Rouge v. Ross, 654 So.2d 1311, 1337 (1995). As this Court has held, speech is not incitement unless it was "directed or intended toward the goal of producing imminent lawless conduct," and does not extend to that speech which unintentionally inspires others to such imminent lawlessness. Byers v. Edmonson, 826 So. 2d 551, 555-56 (La. Ct. App. 2002). Like the copycat cases addressed in Byers, facetious speech does not support any permissible inference that the speaker intended to assist criminal conduct.

Anyone who legitimately thought a call for Cajun, card-carrying, Antifa members to rise up and storm an exclusive neighborhood was a credible threat probably works for the Lafayette Parish government. The posting wasn't exactly subtle. Just because the mayor didn't get the joke and the PD decided to blow payroll on "monitoring" an admittedly incredible "threat" doesn't mean they get to walk over the First Amendment in an attempt to make a jokester literally pay for the Parish's screwup.

Filed Under: 1st amendment, antifa, free speech, john merrifield, jokes, lafayette, louisiana, police brutality, satire