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Last October, students at Northwestern University near Chicago wrapped a parody article imitating their student newspaper around hundreds of copies of the real publication. The fake front page led with the headline: “Northwestern complicit in genocide of Palestinians.”
The parody touched a nerve with many in a country where the war between Israel and Hamas and the ensuing humanitarian toll in Gaza have created an inflection point, both personally and professionally.
Furor over the article was swift and spread far beyond the campus. In response, the university police filed charges against the two students behind the production, accusing them of “theft of advertising services,” a high-level misdemeanor that carries a potential prison sentence. The charge is seldom used in Cook County, reporters found, and was originally intended to prevent the Ku Klux Klan from inserting recruiting materials in newspapers.
The students haven’t spoken publicly about the incident. In January, an online petition calling for the charges to be dismissed garnered thousands of signatures.
The office of the Cook County State’s Attorney, whose jurisdiction includes Chicago and its suburbs, dropped the charges earlier this month. I spoke with State’s Attorney Kim Foxx about how her office handled the case.
While lawyers in her staff review all felony cases before filing charges in court, Foxx said misdemeanors bypass this process. In misdemeanor cases, the law enforcement agency can file directly to court, and prosecutors may not see the details until then. That’s what happened in this case, Foxx said.
Foxx told me she views the Northwestern case as a First Amendment and free speech issue, in which charges should not have been filed. She said she found the situation frustrating.
“The suggestion that these two students should be treated in the same vein as someone who is causing harm to community because they've chosen to do parody as a form of protest — is an insult to the criminal legal system,” Foxx said. She added that the case was a prime example of unnecessarily bringing matters into the criminal justice system.
In case you’re unfamiliar with spicy humor, here’s a quick breakdown. Parody, as with the case of the Northwestern students, is an attempt to imitate someone or something in an exaggerated manner for comedic effect. Satire often employs comedy to criticize behavior — it’s meant to have more of a pointed bite than parody alone.
Last summer, the Fifth Circuit Court of Appeals sided with a Louisiana man who made a Facebook post in early 2020 saying his local sheriffs’ department had orders to shoot people with COVID-19 on sight. Waylon Bailey’s post included a hashtag referencing a zombie movie starring Brad Pitt.
The Rapides Parish Sheriff's Office arrested Bailey, without a warrant, on “terrorizing” charges. Bailey sued, saying his arrest violated his First Amendment and Fourth Amendment rights — free speech and protection from unlawful search and seizures. The Fifth Circuit overturned a lower court’s ruling that Bailey’s post was unprotected speech.
In its decision, the Fifth Circuit said that Bailey’s post did not incite “imminent lawless action.” That language comes from the 1969 U.S. Supreme Court case Brandenburg v. Ohio, which also involved the Ku Klux Klan.
But not all court cases arguing that jokes are free speech have the same conclusions.
In 2016, Ohio resident Anthony Novak created a Facebook page named after his local police department and began making satirical posts, including a claim about an available job posting that excluded minority applicants. The police department arrested Novak, jailed him for four days and searched his apartment.
Novak sued, arguing that his First and Fourth Amendment rights were violated. But a lower court granted the police officers involved in Novak’s ordeal qualified immunity, which protects government officials — including police — from lawsuits alleging rights violations unless those rights are “clearly established” under the law.
Qualified immunity comes up frequently in First Amendment cases, including those that don’t involve satire or the police.
Novak appealed, and the case made its way to the U.S. Supreme Court. In February 2023, the justices rejected his appeal.
But Novak’s case had some supporters, including the satirical news publication The Onion, which submitted an amicus brief to the Supreme Court.
“Americans can be put in jail for poking fun at the government? This was a surprise to America’s Finest News Source and an uncomfortable learning experience for its editorial team,” wrote the publication’s head writer, Mike Gillis.
He went on to explain how the lower court’s interpretation of parody could be harmful.
“The court’s decision suggests that parodists are in the clear only if they pop the balloon in advance by warning their audience that their parody is not true. But some forms of comedy don’t work unless the comedian is able to tell the joke with a straight face,” the brief reads. “Parody is the quintessential example. Parodists intentionally inhabit the rhetorical form of their target in order to exaggerate or implode it — and by doing so, demonstrate the target’s illogic or absurdity.”
