Constitutionally protected a**holes: Musings on the most hilarious amicus brief ever filed

Unless they are covering the police beat (or attending their own child-support hearing), writers and journalists steer clear of courts. This is particularly true for funny journalists. Judges don’t appreciate good humor – just ask the attorneys for Lenny Bruce.

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In his best-selling book “Parliament of Whores,” conservative humorist (not an oxymoron) P.J. O’Rourke attempted to explain how government operated. On how the judiciary decides appeals, he wrote, “For all we know, the Supreme Court decides cases by playing nude games of Johnny-on-a-Pony. This would be a more interesting theory if the members of the Supreme Court were younger and better looking.”

Of course, the Supreme Court is a serious place where cases are decided by old people dressed in black robes. Learned lawyers stand before the bench answering questions and stuffy legal scholars file friendly briefs asking the court to lean one way or the other.

And suddenly, in the midst of all the Supreme Court’s pomp and ceremony stands the everyman of the Baby Boom Generation – P. J. O’Rourke – who has filed an Amici Curiae (Latin for “I don’t have a law degree, but want to stick my nose in anyway”) in the case of Susan B. Anthony List v. Steven Driehaus.

In the case, a pro-life group (the SBA List) claimed in campaign material that by voting for Obamacare, an Ohio congressman (Rep. Driehaus) supported taxpayer-funded abortions. The congressman filed a complaint with the Ohio Election Commission claiming the allegation untrue and actionable under state law. Legal action and appeals followed with the case making it all the way to the U.S. Supreme Court.

According to the brief filed by O’Rourke, the question before the Supreme Court is: “Can a state government criminalize political statements that are less that 100 percent truthful?”

O’Rourke’s brief is worth a read for two reasons. First, it’s damn funny.

In modern times, “truthiness”— a “truth” asserted “from the gut” or because it “feels right,” without regard to evidence or logic — is also a key part of political discourse. It is difficult to imagine life without it, and our political discourse is weakened by Orwellian laws that try to prohibit it.

After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America?  Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular-humanist professors of Chicano studies.

Even the footnotes are funny. On the topic of birth certificates in presidential campaigns, Footnote 14 reads: “While President Obama isn’t from Kenya, he is a Keynesian – so you can see where the confusion arises.”

And the Supreme Court is not spared from O’Rourke’s pithy wrath. Footnote 15 states: “Driehaus voted for Obamacare, which the Susan B. Anthony List said was the equivalent of voting for taxpayer funded abortion. Amici are unsure how true the allegation is given that the healthcare law seems to change daily, but it certainly isn’t as “truthy” as calling a mandate a tax.”

Along with being the kind of funny you’d pay good money to download on Kindle, O’Rourke’s brief is right: “Ohio’s ban of lies and damn lies is inconsistent with the First Amendment.”

O’Rourke’s latest book is about the Baby Boom generation. His Supreme Court brief has its foundation in certain values and life experiences of our era. Remember, we’re the age group that learned more about politics and government from Pat Paulsen than we did from Pat Moynihan.

(Note to Stephen Colbert and Jon Stewart fans – in the beginning there was Pat Paulsen.)

We reject a law criminalizing false statements made “with the intent of impacting the outcome of an election.” And, in fact, we revel in political false statements, often laughing at them with the sophomoric lack of political correctness normally attributed to frat boys drunk on hooch.

After reading the brief several times, I contacted a well-known First Amendment lawyer in Cincinnati who is familiar with the case. He said that O’Rourke’s Constitutional arguments are right on point, but paused before commenting on the facts of the case.

“They’re a bunch of assholes,” he said of the folks involved with the Susan B. Anthony List.

And in the end, isn’t that the point? Free speech – even the political lies of assholes – should be protected.

What do you think?

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