CINCINNATI (CN) — An Ohio man arrested and tried for disruption of public services after he created a parody Facebook page for his local police department cannot pursue First Amendment retaliation claims against the city, the Sixth Circuit ruled Friday.
A three-judge panel unanimously held that police and city officials in Parma, Ohio, acted under the reasonable belief Anthony Novak had committed a felony when he created a satirical account that mimicked that of the Parma Police Department almost to the letter.
Novak had argued earlier this month that because his page was protected speech under the First Amendment, his arrest and eventual trial on the charge of disruption of public services was retaliatory and unconstitutional, but the Sixth Circuit panel disagreed.
The parody page was created by Novak at a bus stop in 2016, and while it was active for just over 12 hours, it garnered attention from local media for its outlandish posts, including one that touted a new Parma police program designed to rid the city of homeless individuals.
Police received several phone calls from concerned residents, and after they obtained Novak's IP address and other information from records requests made through Facebook, they issued a warrant and arrested the prankster.
Novak was acquitted by a jury and proceeded to file suit in federal court for violations of his First and Fourth Amendment rights.
An initial appeal to the Sixth Circuit determined the Facebook page was protected speech, but U.S. District Judge Dan Polster, a Bill Clinton appointee, ultimately granted the motion for summary judgment filed by the city and its officials.
A three-judge panel upheld that decision on Friday, concluding the officials who decided to press charges and arrest Novak acted in good faith and believed he had broken the law.
U.S. Circuit Judge Amul Thapar, a Donald Trump appointee, wrote the court's opinion, and emphasized that Novak's deletion of comments under his posts and parroting of a warning from the real Facebook page could have been construed as impersonating police.
"Whether these actions – deleting comments that made clear the page was fake and reposting the department's warning message – are protected speech is a difficult question," Thapar said. "After all, impersonating the police is not protected speech. And for good reason – one can easily imagine the mayhem that a scam IRS or State Department website could cause.
"But while probable cause here may be difficult, qualified immunity is not. ... [The officers] found probable cause in an unsettled case judges can debate. Indeed, Novak has not identified a case that clearly establishes deleting comments or copying the official warning is protected speech. So ... the officers could reasonably believe that some of Novak's Facebook activity was not parody, not protected, and fair grounds for probable cause," Thapar wrote.
The panel also upheld the dismissal of Novak's Fourth Amendment claims and rejected his argument that police officers lied about the number of calls made to the department when they applied for a warrant.
Thapar admitted that officer Thomas Connor may have exaggerated the number of concerned citizens who phoned the city about the Facebook page, but stressed that "Novak doesn't show that Connor actually provided any false information or misrepresented the nature of the calls."
"It wasn't Connor's job to supply the law," he continued, "it was his responsibility to supply the facts. And as Magistrate Judge Fink explained, he would have made the same decision [to issue the warrant] even if he had read the entire Facebook page himself. So Novak can't show that these statements were material to the magistrate judge's probable-cause determination."
Novak was also unsuccessful in his attempt to resuscitate state law claims against Parma and its officials, as the panel found he failed to prove they acted with "malicious purpose," as required under Ohio law.
Officer Connor admitted during a deposition he "didn't care about Novak's First Amendment rights" while he investigated the Facebook page, but the panel rejected the claim made by Novak that this showed malicious intent.
"In context," Thapar said, "Connor's deposition testimony specified that he wasn't focused on First Amendment concerns because it 'wasn't the focus of [his] investigation.' But failure to spot the issue doesn't offer evidence for a jury to conclude that Connor acted with a 'desire to harm' Novak, as required to show malicious intent. At most, it shows negligence."
While Novak lost his appeal and will not be able to pursue his claims against the city of Parma, Thapar noted in the conclusion of his opinion that the court's affirmance is rooted solely in the law.
"Granting the officers qualified immunity does not mean their actions were justified or should be condoned," he said. "Indeed, it is cases like these when government officials have a particular obligation to act reasonably. Was Novak's Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak's and the government's time? We have our doubts.
"And from the beginning, any one of the officials involved could have allowed 'the entire story to turn out differently,' simply by saying 'No.' Unfortunately, no one did."
Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, and U.S. Circuit Judge Chad Readler, another Trump appointee, also sat on the panel and joined in Thapar's opinion.
Novak’s attorney Donald Screen said in response to the court’s decision that “it’s an unfortunate day for the First Amendment.”
“The First Amendment is supposed to provide a check on the government's ability to prosecute an individual,” Screen wrote. “In holding that it is instead the First Amendment that must yield to the government's determination of probable cause (erroneous though that determination might be), the Court of Appeals gets it backwards." (Parentheses in original.)
Attorneys for the city of Parma did not immediately respond to a request for comment.
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