Creator of Parody Facebook Police Account Loses 1st Amendment Battle

The thumbs-up Like logo is shown on a sign at Facebook headquarters in Menlo Park, Calif. (AP Photo/Jeff Chiu)

CLEVELAND (CN) — A police department in Ohio had probable cause to arrest a man who created a parody Facebook page of the department, a federal judge ruled on Wednesday, shutting down claims that his First Amendment rights were violated.

Anthony Novak filed a lawsuit against the city of Parma and the Parma Police Department, claiming he was arrested for making the satirical Facebook page.

In his ruling on Wednesday however, U.S. District Judge Dan Polster, a Clinton appointee, found that the officers had probable cause to investigate and arrest Novak and were entitled to immunity against his claims for damages.

“The evidence does not show that Detective Thomas Connor and his co-defendants were acting as hot-headed police officers seeking revenge against Novak for his parody,” Polster wrote. “Rather, it shows that they sought advice from multiple sources about the legality of Novak’s Facebook page and followed the proper procedures by obtaining warrants before arresting Novak, searching his property, and presenting the facts of their investigation to the County Prosecutor and grand jury.”

Novak created the parody Facebook page in early March 2016 using his cellphone and, according to court documents, used the account to “anonymously voice his criticism and frustration on matters of public concern like the department’s policing priorities, racial sensitivity, and respect for civil rights, among others.”

The Parma Police Department soon found out about the page, as they fielded phone calls about the posts Novak made to the account. These posts allegedly included topics such as “criminalizing assisting the homeless” and one advertising “free abortions for teenagers provided by police in the Wal-Mart parking lot.”

The page was viewable online for just 12 hours before Novak took it down. Soon after, police acquired a search warrant and Novak was arrested a few weeks later on March 25, 2016.

Novak was charged with a felony for the disruption of public service, but acquitted on all charges in April 2016. After defeating the charges, Novak filed his lawsuit, claiming the police and city had violated his free speech rights and pursued a malicious prosecution against him.

The case wound its way to the Sixth Circuit, which issued a ruling in July of 2019. The court found there was a question regarding if the Facebook page was considered a protected parody under the First Amendment, and that a jury would have to make the decision.

The Sixth Circuit punted on the issue of the officers’ probable cause in arresting Novak and left it to the district court to make further findings.

The main legal issue for Novak’s claims is qualified immunity, because the officers would be shielded from his claims if they had probable cause to arrest him in the first place.

This is exactly what Polster found in his ruling, citing that the officers made a good faith attempt to pursue what they believed was a rightful investigation and that they had probable cause to arrest him.

“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,” Polster wrote.

Polster also found that the police were not improperly involved in the actual prosecution of Novak, shutting down the claim of malicious prosecution.

“This case at its core revolves around the decision whether to prosecute. 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,” Polster wrote.

“Ultimately the Cuyahoga County Prosecutor made an independent review of the evidence and concluded it was sufficient to prosecute, and he sought and obtained a grand jury indictment. Under the facts of this case and Supreme Court and 6th Circuit case law, the officers are entitled to qualified immunity,” he added.

Polster also denied Novak’s claim for prior restraint, a term used to describe administrative and judicial orders that forbid publications before they are released.

Polster found that this claim failed because the officers had no power to deny him the ability to use his own Facebook page and a press release issued by the police department about the false nature of the page came after Novak had already used his page to communicate.

Chandra Subodh, one of Novak’s attorneys, disagreed with the court’s decision and said the ruling failed to touch on many merits and details of the case.

“We respectfully disagree with the court’s decision, which didn’t discuss Mr. Novak’s actual, absurd, parodical posts, overlooked all of Mr. Novak’s arguments, disregarded evidence that the officer lied to the grand jury, ignored the summary-judgment standard by adopting defendants’ self-serving denials of First Amendment retaliatory motive, and disregarded the Sixth Circuit’s controlling opinion in this very case. Mr. Novak will appeal,” Subodh said.

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