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