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