- The Onion filed a Supreme Court brief. It’s both hilariously serious and seriously hilarious: Who else could call the judiciary ‘total Latin dorks’ while making a legitimate point?, Upworthy, October 5, 2022 https://perma.cc/SB6T-8VRY
- Popular parody website files amicus brief laced with satire to the Supreme Court, Yahoo!, October 4, 2022 https://perma.cc/6529-DHFX
- The man who wrote The Onion’s Supreme Court brief takes parody very seriously, NPR, October 4, 2022 https://perma.cc/YW95-MLX7
- The Onion writes serious Supreme Court brief, which of course is also a hysterical parody, The Wrap, October 3, 2022 https://perma.cc/FUB9-PDXH
- The Onion tells the Supreme Court—seriously—that satire is no laughing matter, CNN, October 3, 2022 https://perma.cc/3X89-W5G9
At the time, I was a fuddy-duddy. I couldn’t reconcile the parody/satire briefing approach with an attorney’s duty of candor to a tribunal.
Rule 3.3(a)(1) of the Model Rules of Professional Conduct draws a line:
“(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;” https://perma.cc/TD4F-TCK2
The comments to Rule 3.3 of the Model Rules for Professional Conduct remind us that:
“This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal.” https://perma.cc/J7HY-36GU
There’s no parody or satire exception, is there?
And still fresh in the back of my mind is federal district court judge Linda V. Parker’s 110-page opinion severely sanctioning nine plaintiff attorneys involved in one of the 2020 election cases. According to Judge Parker:
The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.
And this case was never about fraud—it was about undermining the People’s faith in our democracy and debasing the judicial process to do so.
While there are many arenas—including print, television, and social media—where protestations, conjecture, and speculation may be advanced, such expressions are neither permitted nor welcomed in a court of law. And while we as a country pride ourselves on the freedoms embodied within the First Amendment, it is well-established that an attorney’s freedom of speech is circumscribed upon “entering” the courtroom.
In my mind, if Judge Parker was charged to protect the expected duty for counsel to be truthful in the election case, how could The Onion’s parody brief be allowed?
Turn out: It isn’t.
The Supreme Court of the United States decided to reject The Onion’s brief on October 6, 2022.
Fuddy-duddy for the win!
Imagine my head-scratching surprise, however, to observe that no one else seems to acknowledge the brief was later rejected. Even The Onion’s head writer penned an October 12 piece in The Atlantic as if SCOTUS will be considering it:
Do folks check court dockets anymore before writing to inform and persuade the public? How about editors?
Serious question. No satire.