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


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  • icon
    Stephen T. Stone (profile), 1 Aug 2019 @ 3:42pm

    Most readers would have immediately realized this wasn't the Parma PD's official page -- not when it was announcing … the institution of a ban on feeding the homeless.

    I dunno, that does seem like something an actual police department would do.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Aug 2019 @ 4:33pm

      Re:

      " the institution of a ban on feeding the homeless."

      Not so far fetched. There was a news item not that long ago in which a city (do not recall which one) passed a law making it an offense to feed the homeless. Hmmm, a simple search reveals there are many cities that do this, also it reveals that courts have said it is a first amendment right to feed the homeless.

      reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 2 Aug 2019 @ 12:32pm

        Re: Re:

        How is that a 1st Amendment issue? You're not communicating any kind of speech or idea by handing out sandwiches to people. I guess it could fall under the 'free exercise' clause if you claim it's your religious practice and belief to feed the hungry, I suppose.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Aug 2019 @ 10:12pm

      Re:

      I think our police are excellent, probably because I have not done anything that has occasioned being beaten up by these good men.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Aug 2019 @ 12:59am

        Re: Which is it bro?

        You are either a lier or stupid to the the point where if I gave you money, I could write it off as a charitable donation.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Aug 2019 @ 7:00am

        Re: Re:

        and most likely white

        reply to this | link to this | view in chronology ]

      • icon
        Toom1275 (profile), 2 Aug 2019 @ 8:08am

        Re: Re:

        I have not done anything that has occasioned being beaten up

        What a coincidence, neither did many of those who were beaten by those "good" men.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Aug 2019 @ 10:01am

        Re: Re:

        The police are very corrupt. They can murder you and almost ALWAYS get away with it. This guy was stuck in JAIL for 4 days breaking NO LAW!!! How would you like to rot in jail for 4 days having done nothing wrong but the PIGS didn't like it and found something to get you on. They don't care!!! Even if the charges get thrown out and you're set free, they've wasted your time. They got your Fingerprints, etc. Wither it's a few hours or 4+ days, it's all wrong. They make up laws. They tell you lies and threats to make you do what they want as most people really don't know their rights. The Public Education system is wasting a whole lot of time on CRAP, and not important things.

        People have been SHOT, TASED, Thrown to the ground. Arrested over B.S charges for just video recording on a PUBLIC SIDEWALK!!! Go to youtube and do a search for First Amendment Audit. It about makes your blood boil. Tyrant PIGS are all over the place. The whole Thin Blue Line which is also disgusting, is separating them from the rest of us.

        The number of innocent people MURDERED by the police every year is sickening. The police these days are afraid of their own shadow. Shoot first, ask questions later. You're at least 9 times more likely to be murdered by the police than a Terrorist.

        Know your rights!!! So-called GOOD Cops who stand there watching the BAD cops act like tyrants, make them just as guilty!!! Go rob a bank and you're the getaway driver just sitting int he car waiting, while your buddies are in the bank, robbing it and they shoot someone and murder them, they are ALL guilty of murder including the getaway driver. Not just the shooter only. That applies to the police also as far as I am concerned. They stand there watching as some tyrant does his thing. They then pretend they don't know what's going on as they're not the first officer on the scene. Such weak excuses.

        There are some good ones out there, but not many.

        reply to this | link to this | view in chronology ]

      • identicon
        R,ogs/, 5 Aug 2019 @ 11:06am

        Re: Re: stoopid faggot

        no schmear on gay people intended -but you are what a faggot is.

        I hope you die in a fire, soon. Aslow burning fire. Put out by piss, as your stoopid cop mouth whines about how decent you are, and how you dont deserve to die like that.

        It might even be my piss, in the metaphor.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Aug 2019 @ 7:31pm

      Re:

      no, the police department wouldn't ban feeding the homeless.

      However if they found out people were feeding the homeless, it would tip them off to a series of drug raid/stops... that would turn up a large amount of civil asset forfitures, but no convictions

      reply to this | link to this | view in chronology ]

  • icon
    JdL (profile), 1 Aug 2019 @ 3:57pm

    Another good court decision!

    Just a few days ago, we heard that the cops who fried that little two-year-old were also denied immunity. In a sea of "Cops can do anything" court rulings, these are as welcome as they are rare.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 1 Aug 2019 @ 9:02pm

    Police are beyond reproach.

    "tying it up for a total of twelve minutes"

    Which is a long time in cat years. he should be ashamed!

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    abhiwagh (profile), 2 Aug 2019 @ 3:23am

    Rhinoplasty surgery cost in hyderabad

    Rhinoplasty surgery cost in hyderabad is one of the more popular types of surgery that you can get. When you get plastic surgery on your nose, you are basically reshaping the tissue that is found on your face. When you get surgery, surgeons will take skin from around your body and transfer it to other parts in order to get the desired look you want.The correct medical term for nose surgery is rhinoplastry.
    https://noseplasticsurgery.in/

    reply to this | link to this | view in chronology ]

  • icon
    Ed (profile), 2 Aug 2019 @ 7:26am

    Again...

    Never trust a LEO.

    reply to this | link to this | view in chronology ]

  • icon
    Hugo S Cunningham (profile), 2 Aug 2019 @ 7:28am

    Ken White's Parma PD parody

    reply to this | link to this | view in chronology ]

  • identicon
    R,ogs/, 5 Aug 2019 @ 11:01am

    re: ADLification, police, Ohio

    I wrote about neocon, ADLified secret policing in Parma, OH, back in 2018, and how,arch conservative orthodox Jew -christians have toxified that areas police.

    Extra points for Gooling Ohio firefighter and "one fingenail ” aka Jewish -Israeli racist and murderer Baruch Goldsteins defenders mantra.

    Not One Fingernail!

    https://researchorganizedgangstalking.wordpress.com/2018/12/11/parma-ohiogang-stalking-policing-for -profits-crispr-agents-fusion-center-tracking-and-what-to-do-about-it-break-the-deep-state-at-the-sw itch/

    reply to this | link to this | view in chronology ]


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