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U.S. state appeals court urged to protect Twitter parodies

This statement was originally published on eff.org on 21 September 2015.

Courts have long recognized that the First Amendment protects parodies, and last Friday, EFF filed a “friend of the court” brief urging a state court of appeals in Michigan to apply the same protections to parodies posted on Twitter as to parodies everywhere else. The plaintiff in this case, Levitt v. Felton, argued that Twitter should be treated differently. But as we explained in our amicus brief, there's simply no reason to treat Twitter differently.

In the case, Todd Levitt, a self-proclaimed “BadAss Lawyer,” got upset after a Central Michigan University student created a Twitter account mocking his badass marketing strategy. The Twitter account bears the name Todd Levitt 2.0 and is described as “[a] badass parody on our favorite lawyer.” Despite the constitutional protection for parodies, Levitt sued the account's creator, Zach Felton, for defamation, libel, false light, and intentional infliction of emotional distress, among other things. The lawsuit of course only served to bring more attention to the mock Twitter account (which has only roughly 280 followers)—another classic example of the Streisand effect.

The Michigan trial court granted Felton's motion for summary disposition, finding that the “Twitter account constitutes a parody protected by the First Amendment.” But Levitt appealed the trial court's decision. On appeal, he argued that because Twitter allows individuals to “retweet” messages posted from other accounts, it is not always immediately clear to readers whether or not a message is a parody. He argued that the trial court therefore erred in concluding that the Todd Levitt 2.0 account could not reasonably be interpreted as anything other than a parody.

As we explain in our amicus brief, Levitt's proposition is simply ridiculous. Parody Twitter accounts are a common phenomenon, and there is no precedent for treating Twitter parodies differently than any other parodies. And even when a message is retweeted by a user not associated with the parody account, it is incredibly easy to access the account of the original tweeter and to thus view the tweet in context. The fact of retweeting should therefore in no way impact the court's analysis. We hope the Michigan Court of Appeals agrees with us and affirms the trial court's decision to throw out Levitt's case.

Special thanks to UCLA law professor Eugene Volokh of the Scott & Cyan Banister First Amendment Clinic and Michael Smith of the Smith Appellate Law Firm for their work on this brief.