Does the Law Have No Sense of Humor?
by
Aron Solomon 

It came to light this week that after the 2020 election, Bill Barr‘s Department of Justice was looking into a Twitter account named after a politician’s fictitious cow. Or was the faux cow the other very popular parody account named after the same politician?

The real story goes something like this:

Weeks after the 2020 presidential election, the DOJ pursued a secret grand jury subpoena trying to strip a Twitter account that parodied Devin Nunes (R – CA) of its anonymity. Unlike some other social media, on Twitter it is within the rules and terms of service to have an anonymous account, as the system does not mandate identity verification.

Twitter, Inc., sought to quash that subpoena against @NunesAlt account in a motion dated May 10, 2021. This subpoena had been sealed since Nov. 24, 2020 and was under a gag order.

When we say these days you can’t make this stuff up, you literally can’t make this stuff up. What we see happening every day in both the social and legal realm is the stuff of cutting room floors from an earlier, more innocent, and probably more creative era. Content that was just too bizarre and ridiculous to make it on the big screen or even into a made-for-TV-movie. We currently live in the world of fake social media accounts purporting to be someone’s cow, or mother, or alter-ego, and the truly ridiculous part is that anyone is giving bandwidth to these wastes of pixels.

The unsealed Twitter motion is 15 pages of classic Internet content and well worth a read. But the elementary school drama of whose hair was pulled first aside, there are some very serious issues.

The government was demanding that Twitter turn over a treasure trove of information on the entity of entities behind the @NunesAlt account, including IP logs, credit card identity information, phone numbers, and a range of other deeply personal information on the account holders. That’s pretty scary stuff when you think about it. Whether you like platforms such as Twitter or not, the anonymity piece is a feature, not a bug. There was clearly an intended chilling effect in the government asking for their laundry list of personal information, making it clear that if you are the next one to start a parody account, you won’t be able to hide behind a veil of anonymity of Twitter’s own rules that protect users.

Twitter replied of course, claiming that given the facts of this case, the government can’t compel them to produce this information given the facts of this case, which is legally correct. If our collective memory serves, this isn’t the first time the First Amendment has been on a crash course with social media.

Paul Lagnese, managing partner at the Pittsburgh law firm, Berger & Lagnese, LLC, observes that:

“The First Amendment protects individuals from government censorship. Social media platforms such as Twitter are private companies and set the terms of service for the use of their platform. They can choose to ignore or censor what their users post on their sites.”

Milton Berle once said “Laughter is an instant vacation.” So how do we escape being surrounded by the un-funny? In a 2009 essay, on the Law Professors Blog Network, the author opined that it is actually law school itself that destroys any sense of humor lawyers might have had when they entered their legal training. Having earned a law degree, I can attest to the fact that I used to be very amusing and no longer am.

Bad jokes aside (this is hard for many lawyers), the failure of some lawyers in the public spotlight to recognize the absurd and call out the silly for actually being silly has perhaps contributed to our collective intolerance of satire, especially on social media. Clearly, the best way to deal with these alt-accounts is to ignore them. They gain oxygen only by people writing and talking about them – in the Twitterverse, this is what makes something “trend,” which is the overall goal. To set or be part of THE conversation, the one that builds up a head of steam towards that elusive notion for which everyone grasps: virality.

It’s obviously a very different story when parody accounts cross the line from being funny (or even decidedly unfunny) to threatening.  As serious as it is for the Department of Justice to seemingly treat a political parody social media account in the same manner they would treat an account that spurred people on to acts of domestic terrorism, the process needs to be well-established for the legal system to deal with credible and viable threats posed through social media.

But where we are in mid-2021, in a purely practical sense, is a well-oiled hamster’s wheel of accusation after accusation of social media accounts posing a threat, with the reality often being that they usually don’t. This doesn’t alter the reality of the current narrative, which is that any ounce of nuance is lost. Part of the reason for that is how deeply binary our social networks are, another reason is our last ounce of collective patience is long gone.

As to the actual notion of parody, Twitter itself has rules relating to it. In their parody, newsfeed, commentary, and fan account policy, Twitter makes it clear that their analysis of what is okay on their platform and what isn’t, begins and ends with their Terms of Service:

“Our users are solely responsible for the content they publish and are often in the best position to resolve disputes amongst themselves. Because of these principles, we do not actively monitor users’ content, and we do not edit or remove user content except in response to a Terms of Service violation or valid legal process.”

We’ll leave the last word for Michael J. Fox, who probably never envisioned such an un-funny future:

“I think the scariest person in the world is the person with no sense of humor.”

Aron Solomon is the Head of Digital Strategy for Esquire Digital and an adjunct professor of business management at the Desautels Faculty of Management at McGill University. Since earning his law degree, Solomon has spent the last two decades advising law firms and attorneys. He founded LegalX, the world’s first legal technology accelerator and was elected to Fastcase 50, recognizing the world’s leading legal innovators. His work has been featured in TechCrunch, Fortune, Yahoo!, ABA Journal, Law.com, The Boston Globe, The Hill, and many other popular publications.