A civil liberties group has filed a legal brief in support of a comedian who is being sued by the Lafayette Consolidated Government after his satirical Facebook posts about fake antifa events caused a commotion and police response.
The Electronic Frontier Foundation (EFF), which defends free expression in digital communications, filed the amicus brief on behalf of comedian John Merrifield this month in Louisiana’s Third Circuit Court of Appeal. Merrifield and his New Orleans attorney, Andrew Bizer, are appealing a ruling by district Judge Edward Broussard that sided with city-parish officials, who are seeking damages of under $75,000.
Broussard found that the First Amendment doesn’t protect Facebook posts when there is an inherent risk of violence. “Antifa” is a general term describing left-wing activists that militantly oppose far-right-wing groups.
Merrifield, a former resident of the Lafayette area, posted satirical references to a bogus antifa gathering at the Acadiana Mall last year. Police personnel responded after fearful residents apparently thought the event was real.
Bizer called the local government’s lawsuit “frivolous, disingenuous, unconstitutional” in an email to the Louisiana Record.
“Lafayette’s legal arguments are ridiculous, so we are confident the Third Circuit Court of Appeals will reverse the lower court’s stunningly wrong decision,” he said. “... Any first-year law student could tell you Mr. Merrifield’s speech is protected by the First Amendment.”
The EFF’s brief backs that position, arguing that facetious events and political satire are common on social media sites.
“In numerous contexts, courts throughout the country have repeatedly found that various forms of facetious speech are fully protected by the First Amendment,” the brief states.
EFF senior staff attorney David Greene also argues that such communications could only be actionable in court if there is a provable intent to seek a harmful result.
“If the First Amendment protections are not afforded here, governments will be able to use the pretense of believing a clearly facetious event in order to penalize political commentary they dislike,” Greene wrote in the brief.
Judge Broussard's opinion gave Lafayette’s lawsuit the green light in November after Bizer filed a motion to strike the lawsuit based on a state law that prevents strategic lawsuits against public participation (SLAPP).