anthony novak – Techdirt (original) (raw)

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

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

The Onion Files Hilarious Amicus Brief In An Important Case, And Actually Makes A Key Point In The Best Way Possible

from the put-the-onion's-editorial-board-on-the-supreme-court dept

In most cases, it does not do you any good to try to be funny in legal filings. In most cases, judges will not be that amused (even if those same judges sometimes try to make jokey rulings). In the world of the courts, the judges can be funny, but no one else should try. But every so often it works. The ACLU’s Eat Shit, Bob filing, for example, was pretty good.

But now The Onion has truly filed the best amicus ever. It’s one that honestly is so good it should probably never be tried again (even though I fear that many others are now going to try, and fail).

The case is actually one that we’ve been covering at Techdirt, though I never expected The Onion to weigh in on it. It goes back to 2016 when Parma, Ohio resident Anthony Novak (who enjoys writing comedy skits for fun) created a parody Facebook page for the Parma Police Department. It was pretty obviously a parody, talking about how the department “strongly discourages minorities” from applying for jobs at the police department. It also offered “free abortions” in a police van, and promoted a “pedophile reform event.” In short, it was a parody page mocking the Parma Police.

In response, the Parma police arrested Novak, claiming the parody page disrupted public services. Really. Novak spent four days in jail and then was tried but thankfully acquitted by a jury. Novak then sued the city of Parma for violating his civil rights. That case has bounced around the courts, but the rulings have not been great. The district court granted qualified immunity to the police. The 6th Circuit rolled that back in 2019 with what seemed like a good ruling at the time (with the court rightly noting “The First Amendment does not depend on whether everyone is in on the joke.”)

However, on remand, the lower court again decided that the cops get qualified immunity, saying that because some people didn’t get the joke, it violated the law.

Novak’s conduct also confused some members of the public, leading them to believe that his was the real Parma Police Facebook page. When [Detective] Connor consulted with Law Director Dobeck, they reasoned that Novak’s conduct may have violated Ohio Rev. Code § 2909.04(B) with the following elements: 1)“knowingly;” 2) “using a computer;” and 3) “to disrupt, interrupt, or impair the functions of any police … operations.” And Connor’s investigation resulted in a finding of probable cause on each of those prima facie elements.

Unfortunately, this time the 6th Circuit upheld the lower court ruling, saying that “because the officers reasonably believed they were acting within the law” they get qualified immunity.

Novak has asked the Supreme Court to weigh in on whether or not a police officer is entitled to qualified immunity for arresting someone solely for speech parodying the government. It also asks the court to reconsider the entire doctrine of qualified immunity.

With that as background, The Onion has stepped up to the plate and filed an amicus brief urging the Supreme Court to hear the case. And it is so, so good. Again, I would not recommend that anyone else ever try this, but in this case it works. The entire brief is a parody highlighting how parody is funny, even if some people don’t get the joke. You get a sense of where this is going right from the jump:

The Onion is the world’s leading news publication, offering highly acclaimed, universally revered coverage of breaking national, international, and local news events. Rising from its humble beginnings as a print newspaper in 1756, The Onion now enjoys a daily readership of 4.3 trillion and has grown into the single most powerful and influential organization in human history.

In addition to maintaining a towering standard of excellence to which the rest of the industry aspires, The Onion supports more than 350,000 full- and parttime journalism jobs in its numerous news bureaus and manual labor camps stationed around the world, and members of its editorial board have served with distinction in an advisory capacity for such nations as China, Syria, Somalia, and the former Soviet Union. On top of its journalistic pursuits, The Onion also owns and operates the majority of the world’s transoceanic shipping lanes, stands on the nation’s leading edge on matters of deforestation and strip mining, and proudly conducts tests on millions of animals daily.

The Onion’s keen, fact-driven reportage has been cited favorably by one or more local courts, as well as Iran and the Chinese state-run media.

Calling out the fact that media in India and China have fallen for articles in The Onion highlights how powerful governments can and do fall for parody all the time.

The Onion admits its bias in filing the amicus brief:

Americans can be put in jail for poking fun at the government? This was a surprise to America’s Finest News Source and an uncomfortable learning experience for its editorial team. Indeed, “Ohio Police Officers Arrest, Prosecute Man Who Made Fun of Them on Facebook” might sound like a headline ripped from the front pages of The Onion—albeit one that’s considerably less amusing because its subjects are real. So, when The Onion learned about the Sixth Circuit’s ruling in this case, it became justifiably concerned.

First, the obvious: The Onion’s business model was threatened. This was only the latest occasion on which the absurdity of actual events managed to eclipse what The Onion’s staff could make up. Much more of this, and the front page of The Onion would be indistinguishable from The New York Times.

Second, The Onion regularly pokes its finger in the eyes of repressive and authoritarian regimes, such as the Islamic Republic of Iran, the Democratic People’s Republic of North Korea, and domestic presidential administrations. So The Onion’s professional parodists were less than enthralled to be confronted with a legal ruling that fails to hold government actors accountable for jailing and prosecuting a would-be humorist simply for making fun of them.

Third, the Sixth Circuit’s ruling imperils an ancient form of discourse. The court’s decision suggests that parodists are in the clear only if they pop the balloon in advance by warning their audience that their parody is not true. But some forms of comedy don’t work unless the comedian is able to tell the joke with a straight face. Parody is the quintessential example. Parodists intentionally inhabit the rhetorical form of their target in order to exaggerate or implode it—and by doing so demonstrate the target’s illogic or absurdity.

Put simply, for parody to work, it has to plausibly mimic the original. The Sixth Circuit’s decision in this case would condition the First Amendment’s protection for parody upon a requirement that parodists explicitly say, up-front, that their work is nothing more than an elaborate fiction. But that would strip parody of the very thing that makes it function.

It then ventures into a slightly more serious discussion on the nature of parody itself and why it’s important — including the part where parody is often expected to fool some of those who come across it. It talks about the importance of The Onion’s motto, “Tu stultus es,” which translate to “You are dumb.” This is, as they note, actually an important part of parody:

The Onion’s motto is central to this brief for two important reasons. First, it’s Latin. And The Onion knows that the federal judiciary is staffed entirely by total Latin dorks: They quote Catullus in the original Latin in chambers. They sweetly whisper “stare decisis” into their spouses’ ears. They mutter “cui bono” under their breath while picking up after their neighbors’ dogs. So The Onion knew that, unless it pointed to a suitably Latin rallying cry, its brief would be operating far outside the Court’s vernacular.

The second reason—perhaps mildly more important—is that the phrase “you are dumb” capturesthe very heart of parody: tricking readers into believing that they’re seeing a serious rendering of some specific form—a pop song lyric, a newspaper article, a police beat—and then allowing them to laugh at their own gullibility when they realize that they’ve fallen victim to one of the oldest tricks in the history of rhetoric.

There is a lot more in there, including both relevant citations and a lot more jokes. It’s worth reading the whole thing, because not only will you laugh, you may learn a bit about how parody and the 1st Amendment work.

I will include one more bit, though, just because it’s… so good at both being funny and making the relevant point by doing so:

This is the fifteenth page of a convoluted legal filing intended to deconstruct the societal implications of parody, so the reader’s attention is almost certainly wandering. That’s understandable. So here is a paragraph of gripping legal analysis to ensure that every jurist who reads this brief is appropriately impressed by the logic of its argument and the lucidity of its prose: Bona vacantia. De bonis asportatis. Writ of certiorari. De minimis. Jus accrescendi. Forum non conveniens. Corpus juris. Ad hominem tu quoque. Post hoc ergo propter hoc. Quod est demonstrandum. Actus reus. Scandalum magnatum. Pactum reservati dominii.

See what happened? This brief itself went from a discussion of parody’s function—and the quite serious historical and legal arguments in favor of strong protections for parodic speech—to a curveball mocking the way legalese can be both impenetrably boring and belie the hollowness of a legal position. That’s the setup and punchline idea again. It would not have worked quite as well if this brief had said the following: “Hello there, reader, we are about to write an amicus brief about the value of parody. Buckle up, because we’re going to be doing some fairly outré things, including commenting on this text’s form itself!”

Taking the latter route would have spoiled the joke and come off as more than a bit stodgy. But more importantly, it would have disarmed the power that comes with a form devouring itself. For millennia, this has been the rhythm of parody: The author convinces the readers that they’re reading the real thing, then pulls the rug out from under them with the joke. The heart of this form lies in that give and take between the serious setup and the ridiculous punchline. As Mark Twain put it, “The humorous story is told gravely; the teller does his best to conceal the fact that he even dimly suspects that there is anything funny about it.”

I have no idea if the Supreme Court will take this case. I have my doubts, since they seem to love qualified immunity for the most part. But who knows. Perhaps The Onion’s humorous approach has gotten them to think at least a little more deeply about the case.

Either way, it will stand out as one of the best, funniest amicus briefs in a long time. Oh, and also, as you might expect, one that is way funnier AND much more on point than the one filed by the ridiculously bad wannabe The Babylon Bee, which recently filed its own amicus brief… against the 1st Amendment rights of companies.

Filed Under: anthony novak, humor, ohio, parma, parody, supreme court
Companies: the onion

Appeals Court Hands Qualified Immunity To Cops Who Arrested Someone Over Satirical Facebook Posts

from the how-could-they-have-known-this-would-be-unlawful dept

Back in early 2016, Parma, Ohio resident Anthony Novak decided to have a little fun. He created a parody of the Parma Police Department’s Facebook page and began posting obviously satirical announcements, like the following:

The Parma Civil Service Commission will conduct a written exam for basic Police Officer for the City of Parma to establish an eligibility list. The exam will be held on March 12, 2016. Applications are available February 14, 2016, through March 2, 2016. Parma is an equal opportunity employer but is strongly encouraging minorities to not apply.

The test will consist of a 15 question multiple choice definition test followed by a hearing test. Should you pass you will be accepted as an officer of the Parma Police Department.

Other content included announcements for the PD’s “roving abortion van,” a “pedophile reform event,” and plans to arrest anyone caught outside between noon and 9 pm.

The Parma PD couldn’t take a joke. Instead, it took action. It launched a full-blown investigation that involved seven officers, secured three search warrants, and raided Novak’s apartment to seize multiple electronic devices. Novak was charged with multiple felonies before the prosecutor’s office decided that might be a bad idea and offered a plea to reduce the charge to an unspecified misdemeanor. Novak rejected the offer. The police and prosecutor screwed around for awhile before finally deciding to charge him with disrupting police service by causing the department to be… um… mildly inconvenienced by calls about the parody page: a grand total of 10 calls in 12 hours.

Novak sued. The district court somehow found a way to award immunity to all of the involved officers. Novak appealed and the Sixth Circuit Court rolled back part of the lower court’s decision, pointing out the arrest clearly targeted protected speech. Just because the Parma PD didn’t like the parody page’s content didn’t justify the arrest, search, and criminal charges.

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.

It asked the district court to take a second look at the officers’ immunity claims, especially in light of their use of a law the Appeals Court found extremely questionable.

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.

Novak’s return trip to the district court went just as poorly as his initial trip. Five years after his arrest, the district court again awarded qualified immunity to the officers. It said the cops were reasonable to assume the parody page “disrupted police operations,” even if the facts on the record showed disruption was almost nonexistent and the content of the parody page was likely protected First Amendment expression. If the officers had probable cause to pursue an arrest, the lower court saw no reason to determine whether or not the page’s content was protected speech.

The case returned to the Sixth Circuit Appeals Court. This time around, the Sixth Circuit agrees [PDF] with the lower court: qualified immunity protects these officers from being sued over what is almost certainly a violation of Novak’s First Amendment rights. If there’s probable cause, there’s no reason to discuss the underlying rights violations.

No one contests that Novak used a computer and the Internet to create his knockoff page. And the officers believed that Novak’s page had “disrupted” their operations. They knew the call center had received multiple calls about the page, and the statute imposes no lower bound on how much disruption is required. So the officers could reasonably believe that the calls constituted a disruption. As to the knowledge element, the officers were permitted to rely on inferences. Here, the officers inferred that Novak knew he was disrupting operations from his decisions to repost the Department’s warning post on his own page and to delete comments that explained the page was fake.

The Appeals Court notes that protected speech can’t serve as the basis for probable cause. But it explains this apparent contradiction away by saying that because probable cause existed, the officers were free to assume (in an absence of case law) Novak’s speech was unprotected.

But while probable cause here may be difficult, qualified immunity is not. That’s because qualified immunity protects officers who “reasonably pick[] one side or the other” in a debate where judges could “reasonably disagree.” Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 443 (6th Cir. 2016). That’s just what the officers did—they reasonably found probable cause in an unsettled case judges can debate. Indeed, Novak has not identified a case that clearly establishes deleting comments or copying the official warning is protected speech. So even 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.

At the very end of the decision, the Appeals Court tacks on a very minimal, in-word-only wrist slap for the officers who felt being parodied justified an arrest. It’s not enough.

But granting the officers qualified immunity does not mean their actions were justified or should be condoned. Indeed, it is cases like these when government officials have a particular obligation to act reasonably. Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time? We have our doubts. And from the beginning, any one of the officials involved could have allowed “the entire story to turn out differently,” simply by saying “No.” Bari Weiss, Some Thoughts About Courage, Common Sense (Oct. 19, 2021). Unfortunately, no one did.

That’s the problem with qualified immunity. If no one in power steps up to be the adult in the room, every government adult behaving like a child gets rewarded with immunity simply because their childish behavior hasn’t generated courtroom precedent. And when the discussion of rights violations gets short-circuited by qualified immunity questions, no new precedent is erected, allowing the vicious cycle to continue until one court finally decides the cops have gone too far.

Filed Under: 1st amendment, 6th circuit, anthony novak, ohio, parma, parma pd, parody, qualified immunity

Federal Court Says There's Nothing Wrong With Arresting Someone For Parodying A Police Department Facebook Page

from the satire:-unsafe-at-any-speed dept

You know what’s always ripe for parody? Government agencies. You know who’s often outlandishly upset about being parodied? Government officials.

Back in 2016, Parma, Ohio resident Anthony Novak created a fake Parma Police Department page on Facebook. It should have been clear to everyone the page was a parody. The fake Parma PD page posted announcements about a roving police van offering free abortions to teenagers, a plan to criminalize helping the homeless, and the PD “strongly discouraging minorities” from applying for positions with the agency.

Despite it being readily apparent this was not an official Parma PD page, Parma officers arrested Novak in March 2016. The page had only been live for 12 hours, but the PD claimed Novak’s page “interrupted police operations.” The Parma PD made the most of its apparently underutilized resources to stop this resident from making fun of it. To shut down a Facebook parody, the Parma PD deployed seven officers, three warrants, one subpoena, and hundreds of tax dollars to seize a bunch of electronic devices from Novak’s house and throw him in jail. Novak spent four days in jail before being released and was ordered to report to a probation officer.

Novak was acquitted of the felony “disruption of service” charge. His ensuing lawsuit made its way to the Sixth Circuit Court of Appeals which refused to grant qualified immunity to Parma PD officers. Unfortunately — despite indicating it strongly felt the PD’s actions violated Novak’s First and Fourth Amendment rights — it refused to make a call on either issue, sending it back to the district court for more fact-finding.

Unfortunately, the lower court doesn’t appear to have understood the message the Sixth Circuit sent. The Sixth Circuit said this looked like a pretty clear case of First Amendment retaliation, aided in part by a state law that appears to criminalize protected speech:

[T]he vague language of the Ohio statute further heightens the concern raised in Issue 2. That statute makes it a crime to “use any computer . . . or the internet so as to disrupt, interrupt, or impair the functions of any police . . . operations.” Ohio Rev. Code § 2909.04(B). To see how broad this statute reaches, consider an example. An activist tweets the following message: “The police are violating our rights #TakeAction #MakeYourVoiceHeard.” People in the community see the tweet and begin calling the police department to share their views. A small protest even forms in the town square. Police station employees spend time fielding the calls, and a couple of officers go down to monitor the protest. Under the plain text of the Ohio statute, have these acts of civic engagement “interrupt[ed]” police operations? 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.

The lower court’s decision [PDF] says the Parma police did nothing wrong. The investigation and arrest was supposedly fueled by nothing more than good, honest police work. (via Courthouse News Service)

According to the district court, “messing with people” isn’t protected First Amendment activity, even though that’s the sort of thing parody and satire tend to do.

On the official Parma Police Department Facebook, Captain Riley notified the public that Novak’s Facebook page was a fake. But Novak replicated this warning and posted it on the fake page as well. Such conduct went far beyond mere parody or poking fun at the police and was consistent with the testimony of his roommate that Novak was using his Facebook page to “mess with people.” It was also evidence that Novak was trying to disrupt police operations.

As the district court sees it, because some people were misled by the parody, the PD had probable cause to arrest Novak for “disrupting” police service.

Novak’s conduct also confused some members of the public, leading them to believe that his was the real Parma Police Facebook page. When [Detective] Connor consulted with Law Director Dobeck, they reasoned that Novak’s conduct may have violated Ohio Rev. Code § 2909.04(B) with the following elements: 1)“knowingly;” 2) “using a computer;” and 3) “to disrupt, interrupt, or impair the functions of any police … operations.” And Connor’s investigation resulted in a finding of probable cause on each of those prima facie elements.

And if there was probable cause for an arrest, that eliminates not only Novak’s Fourth Amendment claims, but his First Amendment claims as well.

Because defendants had probable cause, it is not necessary for this Court to decide whether the content of Novak’s Facebook page was protected by the First Amendment.

So — as the US Supreme Court unhelpfully ruled — you can retaliate against free speech as long as you can come up with law to “reasonably” abuse.

As for the claims of disruption, there doesn’t appear to have been much of that. Nevertheless, the court finds that any disruption — however non-disruptive — established probable cause for Novak’s arrest and the search of his residence.

One can legitimately question whether 11 calls to the police office from members of the public confused by Novak’s Facebook page was enough of an interference to warrant the expenditure of resources to investigate and prosecute Novak. But that was a judgment call for the police officers to make. So long as they had probable cause to believe that Novak had violated the law, which they did, the doctrine of qualified immunity justifiably shields them from personal liability.

Awesome. Bang up job there, Northern District of Ohio. As long as cops were mildly irritated and possibly eleven people on Facebook were misled by posts about roving abortion vans operating with the blessing of the Parma PD, someone can be arrested and charged for engaging in parody. Hopefully, this will be appealed. The Sixth Circuit sent it back saying more fact-finding needed to be done and strongly suggested it’s the sort of thing that should be sorted out by a jury. The lower court decided none of that meant anything and went right back to its original findings in favor of the Parma PD and other officials involved in this free speech-thwarting effort.

Filed Under: 1st amendment, 6th circuit, anthony novak, arrest, free speech, ohio, parma, parma police department, parody, police

No Immunity For Cops Who Arrested A Man For Creating A Facebook Page Mocking The Police Department

from the limited-but-mostly-good-ruling dept

A few years ago, the Parma (OH) Police Department decided to turn its hypersensitivity into a criminal investigation. A local man, Anthony Novak, created a Facebook page parodying the PD’s social media front. It wasn’t particularly subtle satire. Most readers would have immediately realized this wasn’t the Parma PD’s official page — not when it was announcing the arrival of the PD’s mobile abortion clinic or the institution of a ban on feeding the homeless. Not only that, but the official logo had been altered to read “We No Crime.”

The Parma PD decided to treat this parody as a dangerous threat to itself and the general public. It abused an Ohio state law forbidding the use of computers to “disrupt” police services to go after Novak. Not that there was any disruption other than the rerouting of PD resources to investigate a non-criminal act.

The end result was the arrest of Novak, the seizure of his electronic devices, and a four-day stay in jail for the parodist before he was acquitted of all charges. Novak sued the police department, but the district court decided to award immunity across the board to everyone involved. The Sixth Circuit Appeals Court has rolled back some of that ruling, allowing Novak’s civil rights lawsuit to proceed.

The opinion [PDF] opens with a brief discussion of how parody works — and how the court treats parody — which is more reprimand than reminder.

Apple pie, baseball, and the right to ridicule the government. Each holds an important place in American history and tradition. So thought Anthony Novak when he created a Facebook page to mock the Parma Police Department. He styled his page to look like the department’s official Facebook page. But the similarities ended there. Novak shared posts like an advertisement for a “Pedophile Reform event,” at which pedophiles would receive honorary police commissions.

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.

This misuse of police resources was mobilized by an entire twelve hours of posts by Novak. The page offered up a recruitment ad that “strongly encouraged minorities to not apply” and promised swift justice would be brought against an “African American woman” for “loitering outside a Subway” while it was being robbed by an “armed white male,” who was presumably not under investigation. A certain number of readers were so upset by what they saw they phoned the police department, tying it up for a total of twelve minutes.

The PD assigned two officers to the case and sent an email to Facebook reps demanding the page be taken down. The parody page made a brief appearance on the local news as Parma’s brave crime fighters announced their desire to take down this Facebook criminal. Novak deleted the page shortly thereafter, but the Parma PD continued its investigation, ultimately arresting him for “disrupting” the PD’s apparently endless supply of waste-able time.

The Appeals Court says there is no doubt Novak’s speech was protected, citing none other than The Onion.

[A] parody need not spoil its own punchline by declaring itself a parody. “Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived).” Campbell, 510 U.S. at 583 n.17. Imagine if The Onion were required to disclaim that parodical headlines like the following are, in reality, false: Presidential Debate Sidetracked By Booker, De Blasio Arguing About Best Place In Lower Manhattan To Get Tapas, or, John Bolton Urges War Against the Sun After Uncovering Evidence It Has Nuclear Capabilities. News in Brief, The Onion (June 26, 2019); News in Brief, The Onion (June 10, 2019). The law of parody does not require us to strain credulity so far. And that is not because everyone always understands the joke. Susanna Kim, All the Times People Were Fooled by The Onion, ABC News (June 1, 2015).

Unfortunately, this doesn’t necessarily mean Novak’s claims of First Amendment retaliation will hold up. As the court notes, the Supreme Court recently gave officers a free pass to retaliate against protected speech, provided they can find some sort of probable cause to support an arrest. In some cases, it could be nothing more than jaywalking or not signalling before a turn. In this case, it could be an Ohio state law the Sixth Circuit court views as unconstitutional.

First, it notes the only thing Novak engaged in was speech. And it was only determined to be criminal by using a very loose reading of a very loosely-written law.

Besides posting to his Facebook page, Novak committed no other act that could have created probable cause. In other First Amendment retaliation cases on point, by contrast, the defendant’s conduct was a mix of protected speech and unprotected conduct. That is, the defendants both said something and did something.

[…]

Here, we have nothing like that. Novak did not create a Facebook page criticizing police and use his computer to hack into police servers to disrupt operations. The sole basis for probable cause to arrest Novak was his speech. And there is good reason to believe that, based on the reasoning underlying the First Amendment retaliation cases, this is an important difference.

But if officers reasonably believed the law supported this arrest, they can avail themselves of qualified immunity. The state law against “disrupting” police operations is broad enough it could conceivably allow these officers to escape retaliation allegations. The Appeals Court doesn’t like this law much.

[T]he vague language of the Ohio statute further heightens the concern raised in Issue 2. That statute makes it a crime to “use any computer . . . or the internet so as to disrupt, interrupt, or impair the functions of any police . . . operations.” Ohio Rev. Code § 2909.04(B). To see how broad this statute reaches, consider an example. An activist tweets the following message: “The police are violating our rights #TakeAction #MakeYourVoiceHeard.” People in the community see the tweet and begin calling the police department to share their views. A small protest even forms in the town square. Police station employees spend time fielding the calls, and a couple of officers go down to monitor the protest. Under the plain text of the Ohio statute, have these acts of civic engagement “interrupt[ed]” police operations? 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.

The vagueness of the law could help or hurt Novak, depending on the lower court’s interpretation of the law and its application in this case. The Appeals Court only hints that an easily-abused law that blurs the line between legitimate enforcement and speech-targeting misuse may work out better for the plaintiff than the law enforcement defendants. No qualified immunity… at least not yet.

A few other claims survive as well, including Novak’s allegation that the Parma PD’s announcement it would prosecute him for his parody page was prior restraint. The court agrees, allowing this claim to continue for further factual development. A number of his other claims rest on the same issue as his retaliation claim: probable cause or the lack thereof. If it’s determined the Parma PD had no probable cause to arrest Novak, his claims of malicious prosecution and Privacy Protection Act violations will survive.

The most important decision is the most immediate: no qualified immunity for the Parma PD officers and no early exit from the lawsuit. There’s no question the search and arrest were retaliatory. The only question remaining is how much Ohio’s terrible law will help these cops get away with it.

Filed Under: anthony novak, arrest, free speech, ohio, parma, parody, police, satire