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On October 27, 1999, a 13-year old seventh grader in Ponder, Texas named Christopher Beamon turned in his writing assignment, which had been to write a "scary story" for Halloween about being home alone and hearing noises.

The next day he was in jail.

The tale, it seems, involved him and a friend being frightened by what they thought to be a burglar after they'd gotten high on freon. In the ensuing gunfire he shot two classmates and accidentally shot his teacher. A couple of parents who heard about the story flipped and Beamon was taken from school and shipped off to juvenile hall for a 10-day stay for delinquent behavior. (He was released after five days when a helpful lawyer started raising a stink and involving the press.)

A short time afterwards, the Dallas Observer parodied the news item with a fictional account of its own. The Christian Science Monitor for December 1 picks up the story:

In a satirical piece, the same judge, Darlene Whitten, was portrayed jailing a 6-year-old girl for writing a book report on Maurice Sendak's children's classic "Where The Wild Things Are," said to contain "cannibalism, fanaticism, and disorderly conduct."

"We just thought the whole notion of jailing a student for doing his 'scary story' homework assignment was absurd, and thought satire was a good way to make our point," says Patrick Williams, the Observer's managing editor.

The piece, which was published in November, 1999, included made-up quotations from a variety of public figures, including county district attorney Bruce Isaacks and then-Governor George W. Bush.

The problem was, some people, undoubtedly predisposed by Judge Whitten's actual behavior in Beamon's case, didn't get the joke and Isaacks and Whitten (who are husband and wife, by the way) sued the Observer for libel.

Both the trial court and the Texas Court of Appeals agreed with Isaacks' and Whitten's view that satire is in the eye of the beholder. "Satire is not protected under the First Amendment if it fails to make clear to its readers that it is not conveying actual facts," the appeals court wrote.

New Times, the Observer's parent company, appealed that ruling, and the Texas Supreme Court will hear the case on December 3.

This is a dangerous, dangerous situation. If Whitten and Isaacks prevail, it will effectively outlaw satire in Texas, because it's hard to imagine any satire worth the name would not unintentionally mislead someone into thinking it's true. Satire is by definition fiction - but it must be fiction that is close enough to the truth to create some glimmer of doubt or it collapses into mere ridicule.

Consider the classic example of the genre, Jonathan Swift's "A Modest Proposal." The flow of logic is so smooth, so clear, that it would be easy to believe he was serious - and some people did. For a more modern version, check out Report from Iron Mountain, published in 1967.

The publication of the report caused a sensation. So many copies of it were sold that it made its way onto the New York Times bestseller list, and it was eventually translated into 15 languages.

The report caused panic among many government officials. President Johnson supposedly "hit the roof" when he learned of it. Cables were sent to U.S. embassies throughout the world instructing them to play down public discussion of the report, and to emphasize that the report had nothing at all to do with official U.S. policy.

In fact, I recall stories from the time of Senators storming through the halls of Congress demanding to know why they hadn't been informed of this study. Of course, the reason they hadn't been was that the book was a hoax that worked precisely because it was a brilliant satire - such a well-crafted one, in fact, that even today you can find people who insist the report was real.

By the Court of Appeals ruling, neither of those works would have been Constitutionally-protected speech. (Yes, I know Swift was writing in England decades before the Constitution which wouldn't apply to him anyway because he wasn't in the US. I'm talking about the application of legal principles here, not history.) And you can be damn well guaranteed that if the argument that "fiction loses protection if anyone believes it" succeeds in Texas, there will soon be attempts to apply it elsewhere and more broadly.

And then we can imagine how the producers of the Mercury Theater's 1938 radio production of the War of the Worlds would all have been safely tucked away for a good long time on charges of incitement to terrorism.