We traveled down to Atlanta to moot* Mark Bennett before his oral argument before the Georgia Supreme Court, where he was arguing a First Amendment case pro bono on behalf of a poor schmuck. Nobody famous. Nobody rich. Nobody anybody would think twice about. Except Bennett, which was why he was there, on his own dime, to help.
You know who wasn’t there? The ACLU.
This wasn’t an issue at the time. Nobody expected the ACLU to step up to aid Bennett’s defense of the First Amendment. It was, at that point, an organization that had to divvy up its scarce resources carefully, and it’s concerns about free speech were already deeply conflicted. Fair enough (not really, but that’s how it was).
Then a rich guy sued a couple of really rich, huge corporations and a funny and fabulously successful comedian in a ridiculous suit. It wasn’t only silly, but relatively inconsequential, as everyone involved could afford the best legal counsel available. Plus, the case was legally very clear cut. There was
little no risk that it would have deleterious consequences for free speech.
But the comedian was very popular with progressive audiences. Beloved, even if not always sufficiently knowledgeable and nuanced to get his information right. Still, he made fun of the people they loved to hate, so they loved him. And so did the ACLU of West Virginia.
III. Anyone Can Legally Say “Eat Shit, Bob!”
A. Plaintiffs’ Motion for a Temporary Restraining Order is Ridiculous. Courts Can’t Tell Media Companies How to Report, Bob.
1. All of John Oliver’s Speech Was Protected by the First Amendment. You Can’t Sue People for Being Mean to You, Bob.
2. Plaintiff’s Requested Injunction is Clearly Unconstitutional. You Can’t Get a Court Order Telling the Press How to Cover Stories, Bob.
Ha! They said “Eat Shit, Bob!” For the sake of the argument, the brief added little, if anything. The language was designed to make the groundlings laugh their asses off, but it’s banal stuff at best, and likely to make a judge cringe at its pointless vulgarity at worst.
Then again, it didn’t really matter, as the ACLU was coming in as amicus, so it was merely a supplement to the sound arguments that extremely capable counsel would proffer to the court. There were the real lawyers, making real lawyer arguments, and then there was the ACLU playing the clown for the benefit of those watching from a distance. Oh, how their fans would laugh and laugh, and love the ACLU so dearly for defending the beloved comedian (while forgetting that the primary defendants were mega-corporations who loved the same comedian enough to pay him handsomely for his snark). More importantly, the fans would adore the ACLU’s outrageous snark, the sort of very funny stuff they love so much on social media, and here, their favorite civil rights organization was writing it for stuffy old judges.
How cool is that?
And, frankly, “why the hell not?” appears to be the motivating factor in many of the decisions made by Jamie Lynn Crofts of the ACLU of West Virginia. Indeed, Jamie — who, with this filing has quickly climbed up many rungs on my “favorite 1st Amendment lawyers” list — appears to be channeling her inner John Oliver in much of the filing, as it appears to treat the filing in about the same manner with which Oliver approaches the subjects he satirizes on his show: it’s detailed, thorough, hilarious and razer sharp as it slices and dices its subject.
This is exactly the reaction the ACLU hoped to achieve. Not with the court. Not with a knowledgeable legal audience, but to the non-lawyers who would adore it’s rather low-brow snark and not realize that the legal issue required no heavy lifting. It was the ACLU screaming, “hey guys, look at us! Aren’t we cool!!!” And indeed, cool they were.
This isn’t the first time an amicus brief was proffered that was humorous. Ilya Shapiro and P.J. O’Rourke submitted a satirical brief in a case a few years back as well. Of course, that was to the Supreme Court, not a district court. That was in a case of first impression, not a pedestrian defamation case. The satirical nature of the brief was a critical aspect of the argument and not gratuitous. And the brief was witty, not funny.
Was there anything wrong with the ACLU submitting its funny paper to the court? Nope. They were on the right side of the Constitution, and there is nothing wrong with a civil rights organization supporting free speech. So what if the party they backed had all the money it needed to beat a fairly simple case. So what if they were taking their now-less-than-scarce resources and putting them to good use backing billion dollar corporations.
They played to their core audience on behalf of a favorite comedian, and would be showered with recognition and adoration for their efforts. That’s what brings in the moolah, kids. That’s what tricked the kids to send them the moolah. And they’re allowed to cash in on a slick move to appeal to their core, if foolish, constituency.
But it would be nice if they used some of that loot to support the unpopular cases, the poor schmucks that a guy like Bennett will dig into his pocket to help. The hard cases, where a childish references to “shit” in a brief won’t win over a court or save a life. But then, their adoring fans wouldn’t notice or care about such cases, as they don’t involve rich comedians who pander to a certain political agenda shared with the ACLU’s most avid contributors.
In fact, the hard cases are where the help of an organization like the ACLU to defend constitutional rights is pretty much a turn-off to their biggest fans and contributors. Hard cases involve nasty issues, unpleasant litigants and often back the antithesis of social justice for the sake of the Constitution. They wouldn’t get a dime out of that. And it just wouldn’t be funny.
*As a number of non-lawyers have questioned my use of the word “moot,” it seems an explanation would be helpful. This is a lawyer usage, as in “moot court.” In preparation for argument, we “moot” a lawyer by asking questions that a judge might ask so that he can prepare for argument.