The Reasonable Standard—Parody, Statutory Interpretation, and Chevron (10/9/22)

Many readers of this blog will likely already have heard about the Onion’s Amicus Brief on the petition for certiorari in Novak v. City of Parma (Sup. Ct. No. 22-293), Supreme Court docket entries are here; Novak’s petition for certiorari is here; the Onion’s Amicus Brief is here. The Onion (Wikipedia here) is a satirical medium, often parodying serious newspapers.  The Novak case arises from Novak’s parody on Facebook of a local police department’s web page. For the parody, Novak was arrested, indicted, prosecuted but acquitted of disrupting public services. Novak then sued the City and two investigating officers. The Sixth Circuit held that the City and the investigating officers had qualified immunity from suit. Novak v. City of Parma, 33 F.4th 296 (6th Cir. 2022) 6th Cir. here and GS here. Novak petitioned for writ of certiorari. The questions presented in the petition are:

1. Whether an officer is entitled to qualified immunity for arresting an individual based solely on speech parodying the government, so long as no case has previously held the particular speech is protected.

2. Whether the Court should reconsider the doctrine of qualified immunity.

 These are important questions. 

 In defense of parody, The Onion filed its Amicus Brief in defense of parody.  The Brief is well written, serious, and, on its points, persuasive (I think).  Highly recommended. In part relevant to posting here, Onion’s Amicus Brief argues (pp. 10-12) for the “reasonable reader” standard—whether a reasonable reader would understand the offering to be parody without an express disclaimer. 

Beyond being an entertaining and hopefully persuasive argument, the reasonable reader test offers an opportunity to address briefly the reasonable concept in other legal contexts relevant to this blog; Often, when a case outcome is determined by some “reasonable” conduct, what is reasonable is left to the judgment call of the judge or jury without any clear definition without any clear guidance as to what reasonable means.

The Onion's reasonable reader construct caught my attention because I just addressed the standard in discussing statutory interpretation in the Working Draft for my Federal Tax Procedure Book. One interpretive strategy I describe is:  “much in vogue now, is often called “original public meaning” or sometimes just original or ordinary meaning that some imagined reasonable person (or reasonable audience) at the time of enactment would have attached to the text.”  The footnote to that statement in the Working Draft is:

            Fn. ___ See e.g., Tara Leigh Grove, Testing Textualism’s “Ordinary Meaning", 90 Geo. Wash. L. Rev. 101, 113-119 (2022) (discussing the “hypothetical reasonable reader” construct). Earlier in the article (pp. 112-113), she notes characterizations by prominent authorities (Justice Scalia, Justice Gorsuch, Judge Easterbrook, John Manning, and, in a co-authored treatise, Justice Scalia and Bryan Garner) for various formulations– e.g., ”objectively reasonable person,” and  “a reasonable and reasonably well-informed citizen, but noting the Scalia and Garner “envision a highly sophisticated ‘reasonable reader.’” She quotes from the Scalia and Garner text, Reading Law: The Interpretation of Legal Texts 33 (2012) (emphasis supplied):

            The interpretive approach we endorse is that of the “fair reading”: determining the application of a governing text to given facts on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued. The endeavor requires aptitude in language, sound judgment, the suppression of personal preferences regarding the outcome, and, with older texts, historical linguistic research.

My less than expert comment about the term reasonable is that it may offer the “interpreter” the opportunity to read in their own values or preferences into the exercise, perhaps without even thinking about it. For, example, in the Chevron deference focus on “reasonable” interpretations, prominent jurist Judge Jon Newman of the Second Circuit noted that there is no accepted definition of reasonable and might have sufficient flexibility to permit the judge to adopt interpretations with which they agree. Jon O. Newman, On Reasonableness: The Many Meanings of Law’s Most Ubiquitous Concept, 21 J. App. Prac. & Process 1, 83 (2021).

Since I have dealt with Chevron‘s reasonable interpretation standard in some detail in this blog, I alert readers to Judge Newman’s excellent discussion (pp. 80-83) of the ambiguity in the term “reasonable” for deploying Chevron. Following the discussion, Judge Newman offers this conclusion (p. 83):

It is difficult to know how the Supreme Court or other federal courts determine whether an agency's interpretation of an ambiguous statute is "reasonable." No weighing process appears to be involved. It would probably be too cynical to suggest that the courts are just accepting agency interpretations with which they agree and rejecting those they disfavor, but in some cases that almost seems to be what is happening. Clearly there is no one meaning of "reasonable" in the context of Chevron deference. Perhaps this is simply a context where there is a narrow range of acceptable agency interpretations, on either side of the disputed issue, that courts are willing to uphold, but they are ready to assert the power to reject others that, for stated, or more often unstated, reasons, they deem beyond an amorphous notion of "reasonable."