April 2, 2021 11:01pm
Updated: April 4, 2021 3:28pm
Federal bureaucrats want the authority to investigate Twitter users for sarcastic tweets. School administrators want the authority to punish students for offensive things they say on social media, anywhere and any time.
P.J. O'Rourke is determined to stop them.
The humorist and political satirist, who edited National Lampoon and globe-trotted for Rolling Stone, joined two friend-of-the-court briefs at the 3rd U.S. Circuit Court of Appeals and Supreme Court last month.
Those briefs argue against the National Labor Relations Board (NLRB) ordering a publisher to delete a "joke" threat to punish employees if they unionize, and against "omniscient school administration" as a threat to the First Amendment and parental control.
These aren't O'Rourke's first forays into swaying federal judges. He has now collaborated with the libertarian Cato Institute, where he is the H.L. Mencken research fellow, six times in seven years.
The author of Parliament of Whores and Give War a Chance asked Cato to join its brief on the school case "as soon as the lower court ruled" against the punished student, Cato Vice President Ilya Shapiro, who writes the briefs, told Just the News.
The think tank wasn't planning to ask him to join that appeal, which isn't a "funny brief" like the joke-tweet filing. The latter includes lines like "Will the NLRB next come for motivational posters saying, 'the beatings will continue until morale improves'? ... The NLRB should learn to take a joke."
A casual observer might think O'Rourke's fingerprints are all over the NLRB brief, but the author "has never so much as touched a comma in the drafts we send him," Shapiro said: "I always take it as a compliment when people assume he provides some of the material."
The Federalist is 'not a cartoonishly evil mega-conglomerate'
O'Rourke didn't respond to queries sent through Cato and his public relations agent, but he wrote a joke-heavy Daily Beast column about the first Cato brief he joined in 2014. That document argued against an Ohio law that banned purportedly false political speech.
"The brief is hilarious, and please do not tell my mother I didn’t write it," wrote O'Rourke, an Ohio native. "Cato did not ask me to write their brief for the same reason that you do not ask me to perform your appendectomy."
The question presented by the case is: "Can a state government criminalize political statements that are less than 100% truthful?" The brief uses the word "truthiness," coined by comedian Stephen Colbert to mean "seeming or being felt to be true," 20 times.
O'Rourke said Cato asked him to read and endorse the "fight-a-laugh-with-a-laugh brief" because he's "an expert on being run out of Ohio. Ask my mother." He was proud that a lawyer friend called it "the first legal brief in history to go viral," earning favorable write-ups in The New York Times and the legal blog Above the Law.
The Supreme Court allowed a First Amendment challenge to proceed, and a trial judge threw out the law as unconstitutional.
O'Rourke's NLRB brief, filed at the 3rd Circuit on March 29, has a similar irreverence. It refers to the humorist and American Consequences editor as a "prodigious producer of jokes," and is also signed by the magician duo Penn & Teller.
The case concerns a tweet by Ben Domenech, publisher of the conservative opinion website The Federalist, threatening to send his six employees "back to the salt mines" if anyone starts a union drive.
A non-employee filed a complaint with the NLRB, which agreed the tweet amounted to an "unfair labor practice" and ordered Domenech to delete it - imperiling "edgy humor" across America, the brief said.
"Domenech’s tweet was a joke" like many of his tweets, "not a threat," the brief said. "We know this because Domenech sent it out to more than 80,000 followers" instead of an email to employees. "That’s not the typical modus operandi for breaking federal labor law."
The brief emphasizes the "inherently public and performative nature of Twitter" and other mass media. When the late John McCain told "Daily Show" host Jon Stewart that he left an improvised explosive device under Stewart's desk, the senator drew "laughs from the crowd, not a visit from the FBI."
The publisher's company is "not a cartoonishly evil mega-conglomerate with its own salt mine," and visitors to its nonexistent headquarters need not fear Domenech will "release the hounds," the brief said, alluding to the meme associated with Montgomery Burns on "The Simpsons." (It was the second "Simpsons" meme mentioned in the brief.)
"When an obvious joke is misinterpreted as an illegal threat, everyone becomes a little more frightened that the next thing they say (or tweet) might get them ha[u]led into court." Potential investigations by "humorless and literal-minded government agencies" will chill "freewheeling discourse," the brief warned the appellate court.
Unpopular religious views often treated as 'disruptive' by schools
O'Rourke's Supreme Court brief seeks to uphold a 3rd Circuit ruling against Pennsylvania's Mahanoy Area School District for suspending a junior varsity cheerleader who made a profane post on Snapchat on a weekend, off school property.
After failing to make the varsity squad, the cheerleader flipped the bird and captioned the photo “F*ck school f*ck softball f*ck cheer f*ck everything." O'Rourke, the parent of three teenagers, "has heard the exact rant at issue in this case at the family dinner table," the March 26 brief said.
The controlling Supreme Court precedent on K-12 student speech, the Vietnam War-era Tinker, said the school couldn't stop students from wearing anti-war armbands unless officials could prove the expression would "materially and substantially interfere" with the school's operation.
The Mahanoy district argued the ruling allows schools to "constitutionally discipline student speech that risks significantly harming the campus community," such as perceived cyberbullying, regardless of where it occurs.
Joined by Cato and the Pacific Legal Foundation, O'Rourke's brief emphasized how the COVID-19 pandemic had complicated Tinker. (The Tinker siblings from the Supreme Court ruling filed their own brief against the Mahanoy district.)
The court's distinction between on- and off-campus made sense 50 years ago, but "in a time when tens of millions of American students are engaged in 'remote learning,' the term 'off-campus' provides no useful distinction," O'Rourke and the two organizations wrote.
"Students should not be subject to constant monitoring of their thoughts and expression by school administrators or staff" in venues outside "school supervision and control," the brief said. "Nor should the constitutionally protected right of parents to raise their children be replaced by omniscient and omnipresent school oversight."
The brief warned the high court not to worsen the "dangerous trend of punishing individuals for speech on social media with the intent and effect of stifling ideas." Giving this authority to school administrators will incentivize "informant-style behavior that is anathema to American values."
Advocates for religious liberty, student athletes, student journalists and comic books, as well as several conservative states, filed briefs against the off-campus regulation of student speech.
The Alliance Defending Freedom and Christian Legal Society cited examples of Christian students who faced sanctions from their colleges for stating their religious beliefs, one in a group chat and the other on YouTube.
Despite sharing their views off campus, "because some on campus disagreed with the content and viewpoint of their speech, both students were the target of state-sponsored sanctions" driven by "hecklers," the joint brief said. "The First Amendment does not allow public school officials to reach far beyond the schoolhouse gate and censor speech with which they disagree, wherever it may occur."
The Becket Fund for Religious Liberty, which has represented adherents of minority religions such as Sikhs, Jains and Zoroastrians, asked the high court to push back on lower courts that have "watered down" speech protections from Tinker.
"Unpopular or minority religious beliefs are often targets of government discrimination and hostility—and this frequently carries over to public schools," the public interest law firm said. "Examples abound of public school administrators treating certain religious beliefs not only as different or unusual, but as disruptive and offensive."
Giving school administrators authority to "sift through" the speech of students and their parents - in their religious education, worship and evangelism - would discourage parents from teaching their children "unfamiliar (or unpopular) religious beliefs for fear of government sanction," the brief argued.
Conservatives states don't want schools to be 'never-off-duty speech police'
The National College Players Association and College Athlete Advocacy Initiative warned that expanding school authority over student speech would create an "open season" on student athlete "whistleblowers" who speak out on conditions in their programs, including sexual harassment.
"This is, effectively, a college student speech case" even though it's about a high school cheerleader, their brief said. Colleges will try to impose whatever standard the court devises for K-12, treating any adult speech deemed "controversial" as a prohibited "disruption," their brief said.
"It is especially tone-deaf" to chill the speech of student athletes during a time of intense debate on race relations and athlete compensation. "It is also illegal."
Arkansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, Texas and Utah joined a brief by Louisiana arguing that they need to focus their "limited educational resources where they belong: the classroom."
The states are concerned that their schools "increasingly are forced to serve as the never-off-duty speech police of their students," which either chills student speech or provokes lawsuits for failing to regulate it. "The First Amendment will always lose if that is the calculus."
They warned the high court not to turn the Mahanoy case "into a textbook example of bad facts making bad law," given that the cheerleader's Snapchat rant was an example of "non-threatening, non-harassing, off-campus student speech."
Simply declining to extend Tinker to off-campus speech would not provide "a get-out-of-jail-free card for misbehaving students," the states' brief said. "Indeed, parents—the ultimate speech police—have the primary responsibility of supervising their children off-campus."