If the First Amendment means anything, it surely means that an individual can mock the government without fear of being arrested. But that’s exactly what happened to Anthony Novak when he created a parody Facebook page poking fun at his local police department in Parma, Ohio.
Anthony has lived in Parma for most of his life. In his free time, he enjoys writing comedy sketches with his friends. And in March 2016, he decided to create a Facebook page parodying the Parma Police Department’s page. Anthony’s parody page was modeled after the real department page. It had the same name and profile picture, but displayed the satirical slogan, “We no crime.” The posts on Anthony’s page were obvious parody and included things like the announcement of an “official stay inside and catch up with family day” to “reduce future crimes” during which anyone caught outside would be arrested.
The Parma Police Department did not appreciate Anthony’s criticism. Citing 11 calls that Parma residents made to a nonemergency line to either ask about or tattle on Anthony’s parody page, police obtained a warrant for his arrest, searched his apartment, seized his electronics, and charged him with a felony under an Ohio law that criminalizes using a computer to “disrupt” “police operations.” Anthony had to spend four days in jail before making bail. He was prosecuted, but after a full criminal trial, a jury found him not guilty.
But when Anthony tried to vindicate his rights by filing a civil-rights lawsuit, the 6th U.S. Circuit Court of Appeals refused to hold the police officers accountable for their actions. Despite the clear violation of Anthony’s First and Fourth Amendment rights, the Sixth Circuit granted the officers qualified immunity—a doctrine that the Supreme Court invented in the 1980s to protect government officials from being sued for unconstitutional conduct. As a result, Anthony’s case was thrown out.
If the police can use their authority to arrest their critics without consequence, everyone’s rights are at risk. With the help of the Institute for Justice (IJ), Anthony asked the Supreme Court to take up his case. Despite the support of notable parody websites The Onion and the Babylon Been, the Court declined to hear Anthony’s case in the winter of 2023.
Anthony Parodies the Parma Police Department’s Facebook Page
In March 2016, while he was bored and waiting at a bus stop, Anthony decided it would be funny to parody the Parma Police Department. The local police department was long fraught with problems. So Anthony created and anonymously published a Facebook page that had the same name, cover photo, and profile picture as the department’s official page to lampoon the police. But unlike the department’s page, Anthony’s page lacked the “blue checkmark” verifying it was the official page, it was designated a “Community” page rather than a “Police Station-Government Organization” page, and it displayed the satirical slogan: “We no crime.”
During the 12 hours that it was online, Anthony published obviously parodic posts:
Though some people called the department’s non-emergency phone line to ask about or tattle on the page, most of the people who saw Anthony’s page thought it was funny. It quickly gained attention online.
The Parma Police Department was not amused. The department posted a notice on its official page, confirming it was the real page and warning that the fake page was being investigated. To prevent others from spoiling the joke, Anthony copied that notice to his own page and deleted comments calling his page fake. But after a detective appeared on the nightly news to announce a criminal investigation into the parody page, Anthony took it down.
Parma Police Officers Arrest Anthony, Search His Home, and Charge Him with a Felony
Though Anthony had stopped posting, the police were not done investigating. After learning that Anthony was the author of the page through a search warrant for Facebook, Detectives Kevin Riley and Thomas Connor consulted with Parma’s city attorney to search for a crime that fit the situation. They landed on an Ohio law that makes it a felony to use “any computer . . . to disrupt, interrupt, or impair the functions of any police . . . operations.”
Citing 11 calls by Facebook users, Detective Connor applied for warrants to search Anthony’s apartment and arrest him. Detective Connor argued that the calls created probable cause that Anthony’s parody posts had feloniously “disrupt[ed]” police operations. A judge agreed and issued the warrants. So, nearly a month after Anthony deleted his parody account, police arrested him and charged him with a felony.
Anthony spent four days in jail. While he was incarcerated, he learned that the police had also obtained a warrant for his apartment and seized any device that could connect to the internet, including his laptop, phone, and even his gaming consoles. It took over a year for the police to return everything they seized.
Prosecutors then tried Anthony for his Facebook posts. After a full criminal trial, Anthony was acquitted.
Anthony Seeks Accountability
With the trial behind him, Anthony filed a civil-rights lawsuit against Detective Riley, Detective Connor, and the City of Parma for violating his First and Fourth Amendment rights—those protecting his freedom of speech and freedom from unreasonable searches and seizures. The detectives argued they were entitled to qualified immunity.
Anthony’s lawsuit has now been going on for nearly five years. At first, both the district court and Sixth Circuit agreed that Anthony’s claims could proceed against the detectives and the city. In the Sixth Circuit’s opinion, Judge Amul Thapar called the right to ridicule the government as American as apple pie and baseball.[i] Invoking the satirical work of Ben Franklin and The Onion, the court [PJ11] explained that the First Amendment’s long-held protection for parody doesn’t depend on whether a few Facebook users are confused.[ii] To the contrary, the court noted that the “genius” of parody is that it resembles reality, and it does not need to “spoil its own punchline” by declaring itself a parody.
“Imagine,” the court offered, “if The Onion were required to disclaim that parodical headlines . . . are, in reality, false.”[iii] The court also warned that the broad language of laws like Ohio’s police disruption statute could give police cover to retaliate against people whose speech they don’t like.[iv] Because a jury could decide that Anthony’s page was a parody—and therefore protected by the First Amendment—the Sixth Circuit allowed his lawsuit to move forward. [v]
But in a decision three years later, the Sixth Circuit—in another opinion written by Judge Thapar—changed its tune. This time, the court held that, even though the facts continued to support a finding that Anthony’s posts were parody, police were entitled to qualified immunity and Anthony’s lawsuit would be thrown out.
Qualified immunity is found nowhere in the Constitution or the federal civil-rights statute. Instead, it was made up by the Supreme Court in 1982 for policy reasons. The doctrine shields government officials from constitutional accountability, even if they act in bad faith, unless an earlier case ruled that the same sort of conduct was unconstitutional.
Here, even though the Supreme Court has repeatedly emphasized the First Amendment’s protection for parody, Anthony lost because he couldn’t point to an earlier case that specifically explained that reposting the department’s notice on his own page and deleting comments calling his page a fake were also protected by the First Amendment. Despite the court’s earlier observation that parody doesn’t need to “spoil its own punchline,” the Sixth Circuit held that it was not clearly established that deleting comments and reposting the Department’s notice were protected speech.[vi] Therefore, it was possible that police could have thought that some of Anthony’s actions weren’t protected by the First Amendment. So under the Sixth Circuit’s ruling, the police who violated Anthony’s rights by arresting him and charging him with a felony based on his parody page were off the hook.
Is the First Amendment More, or Less, Important than Qualified Immunity?
The Sixth Circuit’s opinion effectively enables law enforcement to censor speech they don’t like by arresting the speakers. After all, most normal people would choose not to speak at all if their speech could land them in jail.
But other federal courts of appeal have arrived at the opposite conclusion. Down in the Fifth Circuit, the court recently denied qualified immunity to police officers who arrested a woman under strikingly similar circumstances to Novak’s.[vii] In that case, police arrested a citizen journalist known for her criticisms of law enforcement based on a Texas statute that criminalized obtaining information from government officials. In other words, the journalist was arrested for asking questions—one of the most routine ways journalists obtain newsworthy information to publish.
In an opinion that quoted IJ’s amicus brief in the case, Judge James Ho wrote that because it should have been obvious to any reasonable police officer that the First Amendment protects the right of people, in particular journalists, to ask government officials questions, it should likewise have been obvious that arresting a journalist based for asking questions is a blatant violation of the Constitution. For the Fifth Circuit, it did not matter that the police were enforcing a statute or that their actions were blessed by the judge who issued a warrant. “We don’t just ask—we require—every member of law enforcement to avoid violations of the Constitution,” he wrote, “[a]nd when the violation is as obvious as it is here, we don’t grant qualified immunity.”[viii]
Because of this circuit split, if Anthony had posted his Facebook parody while sitting at a computer in Texas (in the Fifth Circuit) rather than in Ohio (in the Sixth Circuit), he would have been able to hold the police officers who arrested him accountable for their unconstitutional actions.
Anthony and IJ are now asking the Supreme Court to weigh in and resolve this split. Judge Ho is right: government officials shouldn’t be entitled to qualified immunity when they arrest someone based on speech that is obviously protected by the First Amendment. The purposes of the First Amendment are more important than the purposes of qualified immunity. For the same reasons, Anthony and IJ are asking the Supreme Court to overturn qualified immunity and restore constitutional accountability across the country.
The Litigation Team
Anthony is represented by Institute for Justice attorneys Patrick Jaicomo, Caroline Grace Brothers, and Anya Bidwell, as well as Subodh Chandra and Donald Screen of the Chandra Law Firm.
The Institute for Justice
The Institute for Justice is a non-profit public interest law firm dedicated to protecting fundamental free speech rights and, through its Project on Immunity and Accountability, fighting judge-made rules that shield government officials from constitutional accountability. Our efforts include direct lawsuits against government officials at all stages of litigation (such as our cases on behalf of Hamdi Mohamud, Kevin Byrd, Sylvia Gonzalez, Cassi Pollreis, Mario Rosales, William Fambrough, and Waylon Bailey), appellate friend-of-the-court briefs in support of individuals who have suffered at the hands of government officials, and outreach to members of the public who want to know more about the difficulties of suing governments and their employees for violating individual rights. Anthony’s case builds on IJ’s fight to protect everyone’s First Amendment right to criticize the government by ensuring that government officials cannot escape accountability when they arrest someone based on their online speech. We do all of this because of our fundamental belief that following the Constitution means being held accountable for violating it.
[i] See Novak v. City of Parma, 932 F.3d 421, 424 (6th Cir. 2019).
[ii] See id. at 428-29.
[iii] See id. at 429.
[iv] See id. at 432.
[v] See id. at 430, 437.
[vi] See Novak v. City of Parma, 33 F.4th 296, 305 (6th Cir. 2022).
[vii] See Villarreal v. City of Laredo, 44 F.4th 363 (5th Cir. 2022).
[viii] See id. at 381 (Ho, J., concurring).