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Panel OKs lawsuit over arrest for police parody page

A parody Facebook account of an Ohio police department that landed a local man in jail falls under speech protected by the First Amendment, the Sixth Circuit ruled unanimously Monday.

(CN) — A parody Facebook account of an Ohio police department that landed a local man in jail falls under speech protected by the First Amendment, the Sixth Circuit ruled unanimously Monday.

In March 2016, Anthony Novak used his cell phone to create a satirical Facebook page for the Parma Police Department while he was waiting at a bus stop. He 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,” according to court records.

The Parma Police Department quickly caught wind of the account and sent Facebook several requests to take down the account. Officer Thomas Connor, who monitored the parody page, was eventually sent over 3,000 pages of records after he requested information from Facebook regarding the anonymous creator of the page.

Novaks’ identity was among the records. Connor obtained a warrant and Novak was arrested and charged with felony disruption of public services.

Novak was acquitted by a jury after the only evidence presented at trial was a series of phone calls made to the department by concerned citizens.

He then filed a civil rights lawsuit against the city of Parma, Connor and Officer Kevin Riley.

U.S. District Judge Dan Polster refused to dismiss most of Novak’s claims, ruling in April 2018 that parody is a constitutionally protected activity. Polster criticized the city for responding to the parody account by announcing a criminal investigation.

The city, Connor and Riley appealed to the Sixth Circuit, claiming qualified immunity shields them from Novak’s suit.

In a 21-page ruling issued Monday, a three-member panel led by U.S. Circuit Judge Amul Thapar found that the officers “are wrong to think that we just look to a few confused people to determine if the page is protected parody.”

“Our nation’s long-held First Amendment protection for parody does not rise and fall with whether a few people are confused,” Thapar wrote, finding that a reasonable reader would have known that the Facebook page was a parody and not the Parma Police Department’s legitimate account.

In the opinion’s introduction, Thapar noted that the First Amendment “does not depend on whether everyone was in on the joke” when it comes to parody, and said it is also not “bothered by public disapproval, whether tepid or red-hot.”

The ruling punted on deciding whether the Parma Police Department had probable cause to arrest Novak for disrupting the department’s operations with his parody account, but did establish that “besides posting to his Facebook page, Novak committed no other act that could have created probable cause,” leaving his speech as the only thing that resulted in his arrest.

Thapar, an appointee of President Donald Trump, also noted that the Ohio statute making it a crime to “use any computer…or the internet so as to disrupt, interrupt, or impair the functions of any police…operations” contains broad, vague language that further heightens free speech concerns.

“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 judge wrote.

One of Novak’s claims that will survive for now is his allegation that police imposed a prior restraint on his speech when it issued a press release about the bogus Facebook page and wrote to the social media company demanding it be taken down.

Thapar stated that “because taking down the page would mean Novak could no longer post critical comments about the police on his page, the letter and email to Facebook could be administrative orders that constituted a prior restraint.”

The Sixth Circuit panel decided to leave it to the district court to decide whether the Parma Police Department’s press release threatening legal action against the creator of the parody page also constituted prior restraint.

Because of a lack of clearly established law, Thapar reversed the district court’s decision to deny the city and police officers’ motion to dismiss Novak’s claims “related to anonymous speech, censorship in a public forum, and the right to receive speech,” and affirmed all of the lower court’s decisions with respect to Novak’s other motions.

Thapar was joined on the panel by U.S. Circuit Judge Chad Readler, another Trump appointee, and Senior U.S. Circuit Judge Gilbert Merritt, a Jimmy Carter appointee.

Subodh Chandra, an attorney with The Chandra Law Firm in Cleveland who represented Novak at oral arguments last month, praised the Sixth Circuit’s ruling in a statement Monday

“Despite Parma and its police officers’ efforts to the contrary, this is still America,” Chandra said. “We have a right to mock our government – even mercilessly. Mr. Novak looks forward to presenting his case in court.”

Legal counsel for the defendant officers and representatives for the city of Parma could not be immediately reached for comment Monday.

Follow @cnsjkelly
Categories / Appeals, Civil Rights

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