Thread by @gauravsabnis

Just a reminder that the Supreme Court itself said that this impersonation/parody is covered by free speech.

'Parodies of public figures which could not reasonably be taken as true are protected against civil liability by the #FirstAmendment, even if intended to cause emotional distress."

- SCOTUS holding about fake ad that said Falwell lost his virginity to his mom

@elonmusk

And that "reasonably" is key. It means that the bar is exceptionally high, even for CIVIL suits (forget criminal) against someone "impersonating" someone for parody reasons. No matter how convincing it seems to the plaintiff.

And if you look at the ad, what the supreme court and thus the law of the land says is that if you're a public figure, someone could LITERALLY falsely say you fucked your mom and even that's covered even from civil suits by the #FirstAmendment

So yeah, good luck trying to sue those who posted stuff that caused company stocks to tank. Especially that insulin stuff cos it is SUCH an obvious political statement.

Trump has made people believe you can sue your way out of anything

I'm sure they could find a plant court in UK that is like Concierge Service for powerful rich people these days. But in the US? Forget about it!

You have to be Alex Jones level repeat unrepentant offender to be nailed in a US court over your speech.

Actually not trump. It's Peter thiel and hulk Hogan who have created this impression that you can sue your way out of anything.

And that's why the judgment is so seminal and my favorite. It established this very clear principle. That parody, even when explicitly intended to cause emotional distress, is protected by free speech from government action AND civil liability.

https://twitter.com/yodalisque/status/1591353447194189826?t=yzr1Fr3ZN2JSw7M5L5YHjQ&s=19

It was an 8-0 judgment. Totally unanimous. And a thumping progressive win.

Cos you see, the founding fathers actually did NOT intend for the FA to mean what it has evolved to mean today. It said "Congress" (federal) can't make laws abridging these rights. States could & did!

Why I absolutely cannot take any "originalist" folks seriously. Cos it's all there in the text of the debates & reams of papers cos those dudes wrote like crazy. The Bill of Rights was not meant to stop states from doing whatever they wanted to abridge those rights.

It took almost 200 years of social progress and activism and institutional evolution for the US to reach an era of progressive justices who looked more at the principles as they apply now rather than what long dead dudes intended literally. And that made FA so powerful.

A lot of things we take for granted today in the US because of the First Amendment, are more due to liberal justices expanding their own and the nation's and arguably the world's definition of what rock solid freedom of speech, freedom of religion, freedom of press should be.

First Amendment was adopted in 1791.

For over 150 years, states passed many many MANY laws curtailing freedom of speech, press, religion, even passing laws favoring certain religions, etc. And the court didn't say boo. States could do whatever they wanted. Slavery included.

Lenny Bruce was getting arrested for profanity in NYC in the 50s and 60s.

What I'm saying is, free speech wise or even freedom of religion wise, USA was not that different from India until about 70 years ago. When we got the Warren Court. Liberal justices in a healthy majority.

It's not the text of the FA that was so powerful by itself, cos it didn't really protect anyone from state crackdowns for over 150 years.

It's the liberal justices who made those words mean what we now by default think they mean.

And all 3 remain solid even today.

Any non fascist person will agree that in our times, for a modern republic to function and thrive, there should be freedom of speech, freedom of religion, freedom of press. From any level of government, not just federal. That's what the Warren Court & it's aftermath achieved.

The Hustler v Flynt decision was landmark cos it explicitly protected even lies. Falwell sued saying they lied. Under existing case law, not an unreasonable lawsuit. The court said, well, it's parody. Reasonable people don't just believe the first thing they read literally.

So even if it is a lie, as long a reasonable person, after due diligence, can clearly tell it's a parody, well, then public figure, just suck it up. And we justices fart in the general direction of your emotional distress.

Apply that to the insulin "lie"that tanked stocks.

Furthermore, even a non-parody lie doesn't automatically mean there's a tort case. You have to demonstrate how that lie materially harmed you for a tort case to even go to trial. Which Sandy Hook lawyers did a great job of. The bar is Alex Jones high for lies to be sued in US.

"Although false statements lack inherent value, the "breathing space" that freedom of expression requires in order to flourish must tolerate occasional false statements, lest there be an intolerable chilling effect on speech that does have constitutional value."

"To be sure, in other areas of the law, the specific intent to inflict emotional harm enjoys no protection. But with respect to speech concerning public figures, penalizing the intent to inflict emotional harm, without also requiring that the speech that inflicts that harm ..."

"to be false, would subject political cartoonists and other satirists to large damage awards. "The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events – ..."

".. an exploitation often calculated to injure the feelings of the subject of the portrayal". This was certainly true of the cartoons of Thomas Nast, who skewered Boss Tweed in the pages of Harper's Weekly."

"From a historical perspective, political discourse would have been considerably poorer without such cartoons."

(This is one of my favorite lines from the judgment. Recognizes history. Living breathing document.)

A cute epilogue to the case is that Jerry Falwell and Larry Flynt actually became good friends during and after the case. In the right direction, as in Jerry Falwell came around to accepting the view that yeah, no one should be held liable even for the most insulting parody.

Basically SCOTUS said public figures can't be snowflakes.