Civil Rights & Constitutional Law
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December 15, 2008
Monday, July 29, 2019
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.
–Judge Amul Thapar
U.S. Court of Appeals for the Sixth Circuit
Cincinnati, OH – Today, a federal appeals court ruled that a satirist who created a Facebook page ridiculing the Parma police department can sue the department and its officers for unlawful First Amendment retaliation, malicious prosecution, and numerous other federal and state civil-rights violations.
In October 2017, Parma resident Anthony Novak sued the city, two officers, and an investigator for initiating a sham prosecution against him because he created a Facebook page that parodied police department press releases. Following a trial, a jury had acquitted Mr. Novak—but only after he spent four days in jail and after the city marshaled massive investigative and legal resources, including a child-pornography task-force and a SWAT team that ransacked his apartment, to seek vengeance against him for using humor to criticize the police department's incompetence and racial insensitivity.
In a unanimous opinion, a three-judge panel of the Sixth Circuit Court of Appeals rejected most of an appeal by the officers and the city of Parma seeking dismissal of the suit. The appeals court cleared the way for Mr. Novak to sue the defendants for violations of his First Amendment rights, retaliatory and wrongful arrest, malicious prosecution, unlawful search and seizure, and civil liability for criminal acts, among other claims.
“Apple pie, baseball, and the right to ridicule the government,” wrote Judge Amul Thapar for the panel. “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.”
Among Mr. Novak’s postings:
When Mr. Novak created his webpage in March 2016, police immediately announced to the media that they were opening a criminal investigation. One officer said police “just wanted it down” and they approached Facebook to delete it, but Novak had already taken the page down because of fear of the police investigation.
Still, Mr. Novak was charged with unlawfully impairing the police department's functioning, even though, he says, other than 12 minutes’ worth of phone calls from irritated (and a few confused) residents, there was no impact—and Novak also says that police were actually unaware of those calls when they obtained warrants against him.
In seeking to dismiss Mr. Novak’s suit, the police insisted Novak’s Facebook page was not a parody, which is protected speech.
“But they are wrong to think that we just look to a few confused people to determine if the page is protected parody,” wrote the court. “Our nation’s long-held First Amendment protection for parody does not rise and fall with whether a few people are confused…. Novak has alleged enough facts that a reasonable jury could find that his page was a parody.”
The appeals court also noted that “this case strikes at the heart of a problem the [Supreme] Court has recognized in recent retaliation cases,” namely that police may exploit their power to arrest people specifically in order to suppress speech. “Novak’s case is prime ground for the pretext that the Supreme Court has worried about,” wrote the appeals court.
Mr. Novak can pursue his claim of prior restraint, the appeals court ruled. The police sent out a press release threatening to prosecute and demanded that Facebook take down his page. Mr. Novak himself closed the site as a result of the police investigation and has not re-opened it since then.
The appeals court allowed most of Mr. Novak's other claims to proceed, including a claim alleging a department supervisor encouraged the police misconduct and directly participated in it. The court also allowed a claim of conspiracy to go forward, based on the allegations of the defendants’ coordinated efforts to suppress Mr. Novak's free speech, including bringing in the resources of the Ohio Internet Crimes Against Children Task Force in a case that had zero connection to child pornography.
Mr. Novak can also pursue claims of unlawful search, for the SWAT team breach of his home, and unlawful seizure, for the confiscation of every electronic device he owned, including PlayStation and Xbox videogame consoles. The police department continued to confiscate Mr. Novak’s property, for over a year after he was acquitted.
The appeals court also observed that the statute under which Mr. Novak was charged makes it a crime to “use any computer . . . or the internet so as to disrupt, interrupt, or impair the functions of any police . . . operations.” The court wondered whether this language is so broad that it might enable police to retaliate with impunity. “Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection,” the court wrote. “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 appeal came to the Sixth Circuit after the trial judge denied the Parma defendants’ motion to dismiss in April 2018. Read the trial court’s decision here.