Supreme Court Passes On Important Parody Case, Allows Cops To Treat Satire As A Criminal Act In The Sixth Circuit (original) (raw)

from the I-guess-the-joke's-on-us dept

While we’re all waiting to see if the Supreme Court is willing to destroy Section 230 immunity the way it did abortion rights, more bad news has been delivered by the top court in the land. Hidden among the list [PDF] of dozens of cases the Supreme Court will not be reviewing is this one, rejected without comment by the justices.

22-293 NOVAK, ANTHONY V. PARMA, OH, ET AL.

The case dates back to 2016. Anthony Novak decided to create a Parma (Ohio) Police Department parody page on Facebook. He made a number of posts, none of which should have been taken seriously by readers. He insinuated the PD was not interested in hiring minorities, that it was performing abortions in a “roving abortion van,” would be arresting anyone caught outside between noon and 9 pm, was hosting a “Pedophile Reform event,” and had instituted a ban on feeding homeless people in hopes that starvation would allow the problem to resolve itself.

What should have been ignored instead became the focus of the Parma PD, which assembled an ad hoc task force of seven officers to determine who was behind the parody account. Once this information was obtained, Novak’s house was raided and his devices — including two hard drives, a laptop, two video game consoles, and two cellphones — were seized. Novak spent four days in jail before being allowed to bail out.

The alleged criminal act was the use of a computer to “disrupt, interrupt, or impair police services.” The Parma PD offered no evidence of any such disruption, interruption, or impairment other than it having to deal with a total of 10 phone calls related to parody page over a period of 12 hours.

Novak sued. The district court granted the officers qualified immunity. The Sixth Circuit’s first pass rolled much of that ruling back, citing the obvious First Amendment implications of allowing cops to abuse laws to silence speech they don’t like.

Novak’s page delighted, disgusted, and confused. Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a “most gullible person on Facebook” standard. The First Amendment does not depend on whether everyone is in on the joke. Neither is it bothered by public disapproval, whether tepid or red-hot.

[…]

Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause. Critical online comments, mail-in or phone bank campaigns, or even informational websites that incite others to “disrupt” or “interrupt” police operations could violate the law.

Open and shut. Or so it would seem. The lower court took another shot at the case on remand, somehow managed to arrive at the same mistaken conclusions, and sent it back up the ladder on appeal. Inexplicably, the same appeals court that strongly rejected the awarding of immunity to these officers found a way to allow them to escape the suit the second time around.

[E]ven with Leonard’s protected-speech rule on the books, the officers could reasonably believe that some of Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause.

What’s more, the officers had good reason to believe they had probable cause. Both the City’s Law Director and the judges who issued the warrants agreed with them. Reassurance from no fewer than three other officials further supports finding that the officers “reasonably,” even if “mistakenly,” concluded that probable cause existed. Wesby, 138 S. Ct. at 591 (cleaned up). That’s enough to shield Riley and Connor from liability.

In other words, as long as cops can find a law that allows them to violate the First Amendment, they can do so as long as a bunch of other people in the law enforcement food chain nod in agreement while these far-fetched legal theories are discussed.

The ruling meant parodying police or other government agencies could be considered criminal activity, even if First Amendment case law clearly and affirmatively protects satire and parody. If cops can claim a parody made things momentarily slightly more difficult for them, that’s apparently all the probable cause they need.

It’s a decision with tons of negative First Amendment implications. It drew the attention of First Amendment advocates everywhere who submitted briefs in support of Novak. The current paragon of parody and satire — The Onion — submitted a masterful brief that was as entertaining as it was insightful.

The Sixth Circuit’s decision is extremely problematic. This rejection by the Supreme Court is a kick in Constitution’s teeth. It had a chance to right an obvious wrong but has decided, for unexplained reasons, this important First Amendment case isn’t worth its time. So, the Sixth Circuit’s decision stands. And, because it does, officers in the circuit will feel far more emboldened to engage in retaliation over what’s supposed to be protected speech.

Filed Under: 1st amendment, anthony novak, ohio, parma, parma pd, parody, satire, supreme court