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.

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


Reader Comments

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  • icon
    That Anonymous Coward (profile), 1 Mar 2021 @ 11:04am

    And justice for some...

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

  • icon
    That One Guy (profile), 1 Mar 2021 @ 11:24am

    'They hurt our feelings, make them pay!'

    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.

    Oh it's even worse than that, as this case once more shows the atrocity and rot that is QI because all they have to do is claim that people were mislead or confused, that they thought that someone was doing something wrong and they're in the clear, because the number of judges willing to call cops liars and punish them accordingly could probably be counted on a single hand.

    If a page touting blatant racism and roving abortion vans actually did confuse people then either those people are stupid enough that the sunset has got to have them scrambling to call the police asking when the disc of life will ever come back or the local police has a bit of an image problem such that neither of those would be out of character, in neither case should the parodist be the blame.

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

  • identicon
    Anonymous Coward, 1 Mar 2021 @ 11:38am

    Sounds like the federal court needs a parody page now...except this shit is so absurd you couldn't tell the difference.

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

  • icon
    ECA (profile), 1 Mar 2021 @ 11:40am

    disruption

    The only disruption, was from the police.
    Unless they could bring others up to Show, People were having problems with discerning the difference.

    Another think, is on the Police page, have a Copy righted picture or comment, and if he copies and posts it, then arrest him.

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

  • identicon
    Anonymous Coward, 1 Mar 2021 @ 11:40am

    That statute appears so broad that just reporting a crime might be considered criminal.

    Citizen: Hello... I think my house is being robbed.
    Police: All our officers are out on another operation. Please do not bother us again.
    Citizen: But I think I am in danger
    Police: Hang on we'll be right there.
    A few minutes later... your under arrest. We told you we were busy.

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

  • icon
    Jojo (profile), 1 Mar 2021 @ 12:01pm

    It’s only funny when you’re the only to make jokes.

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

  • icon
    Upstream (profile), 1 Mar 2021 @ 12:13pm

    Like Tim said

    Tim Cushing kind of said it all in his sub-head in the linked page:

    "from the a-police-state-is-a-team-effort dept"

    Another unmistakable indication that we live in a police state: When all three branches of government aggressively participate, in concert.

    The Legislature making laws against "...speech well in the heartland of First Amendment protection."

    The Executive enforcing those laws way beyond any reasonable interpretation of those laws. That is, if there is any such thing as "reasonable interpretation" of such blatantly absurd and unconstitutional laws.

    The lower Court saying "No problem with this." Higher Court kicking the can back to the lower Court. Lower Court saying "We saw no problem the first time, and we still see no problem."

    And there are still those who wonder why so many of us have lost faith in government. Wow.

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

  • icon
    crade (profile), 1 Mar 2021 @ 12:46pm

    "Because defendants had probable cause"
    The law must be ok under the first amendment because we are pretty sure he broke it? Isn't a bit circular?

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

  • identicon
    Anonymous Coward, 1 Mar 2021 @ 3:44pm

    This says more about the police deparment

    So, if a parody web page has been found by the federal court...

    “to disrupt, interrupt, or impair the functions of any police … operations.”

    Shouldn't we view this as how horribly this police department is performing?
    I mean, if just a web page can do this, how are they going to respond to something like a robbery? or something more than just normal everyday things?

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

  • icon
    Hugo S Cunningham (profile), 1 Mar 2021 @ 4:44pm

    Popehat's parody page

    In case anyone missed it the first time--
    Ken White (Popehat) posted a great Parma PD parody at
    https://www.popehat.com/2016/04/05/official-city-of-parma-police-department-press-release/
    Not a single sentence was false and defamatory (Ken is an attorney), but I doubt if the Parma PD cared for it.

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

  • identicon
    Anonymous Coward, 2 Mar 2021 @ 4:13am

    Sixth Circuit Court of Appeals which refused to grant qualified

    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:

    then the lower court refused to settle the matter by siding with the cops.
    i guess the appeals court will need to settle the first amendment violation then with the original asking price plus extra punitive damages....

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

  • icon
    Ed (profile), 2 Mar 2021 @ 9:26am

    It is what it is

    Never, ever, trust a cop. Cops lie, cheat, steal with impunity. There are no "good cops". None.

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

  • identicon
    Rekrul, 2 Mar 2021 @ 6:47pm

    ...a plan to criminalize helping the homeless...

    All the videos of people being arrested for feeding homeless people would suggest that this portion of the page wasn't so obviously fake. :(

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

  • icon
    ishanikappor2019 (profile), 21 Mar 2021 @ 11:48pm

    myhrcvslogin.co

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


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