CINCINNATI (CN) — A Parma, Ohio, resident arrested after he created a Facebook page parodying the city’s police department urged an appeals court to reinstate his First Amendment retaliation claims against the city and several police officers that were previously granted immunity by a federal judge.
Anthony Novak created a short-lived parody Facebook page at a bus stop in 2016, and used it to post several satirical “news stories” under the guise of the Parma Police Department.
Among the items posted by Novak was a statement announcing a “temporary law” that forbid residents from giving food to homeless individuals as a means of keeping them out of the city.
The page was active for just over 12 hours, but Police Chief Thomas Connor sent numerous takedown requests to Facebook and eventually obtained over 3,000 pages of records, including Novak’s identity.
A warrant was issued for Novak’s arrest on the felony charge of disruption of public services, although a jury eventually acquitted him.
Novak sued the city, Connor, and police officer Kevin Riley on various civil rights claims, and U.S. District Judge Dan Polster initially refused to dismiss the suit on the grounds that parody is protected speech under the First Amendment.
The city appealed to the Sixth Circuit, and a panel agreed with the lower court and found the speech was protected.
Upon remand, however, Polster found the city and its officers had probable cause to arrest Novak and, therefore, were entitled to qualified immunity on his First Amendment claims.
Polster, a Clinton appointee, described Connor and Riley as rational actors who sought advice prior to executing their warrant and arresting Novak several weeks after he created the page.
“So long as [the officers] 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 determined.
In his brief to the appeals court, Novak argued the officers never had probable cause to arrest him because the only basis for the warrant was his protected speech, a point that distinguishes his case from those referenced by Polster to support dismissal of the suit.
“Novak’s speech cannot serve as the basis for a violation of the ‘disrupting public services’ statute,” the brief says, “since such statute can prohibit only speech (e.g., fighting words, incitement, etc.) excepted from constitutional protection.”
Novak claims Parma police failed to even consider the First Amendment aspects of his conduct, and merely went after him because they didn’t like the content of the Facebook page.
“A reasonably jury could find that Conner, with Riley’s approval, procured Novak’s arrest to punish him for protected speech criticizing Conner’s police department,” the brief said. “It could also find that the officers wouldn’t otherwise have arrested Novak because, as they acknowledge, he engaged in no other conduct.”
In its brief, the City of Parma pushed back against the portrayal of Novak as a “noble parodist” and emphasized the intent behind his actions — specifically, to “mess with people” and disrupt police operations.
Parma argued that phone calls placed to its police department while the Facebook page was active prove no reasonable reader could believe it was satirical, especially considering its description mimicked the official page to a letter.
The police officers also pointed out the facts in this case were unlikely anything they had previously encountered, which they claim supports Polster’s award of immunity.
“The officers were faced with a novel situation, which is why they sought guidance from the city’s law director,” the brief said. “They had probable cause to believe Novak knowingly disrupted police and public services, and they reasonably believed Novak could be constitutionally prosecuted under the disruption statute.”
Attorney Donald Screen argued Friday on behalf of Novak before the appeals court. He told the panel of three judges that the city erred when it criminalized his client’s speech and had him arrested.
“You do realize there are crimes that turn on speech?” Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, asked the attorney, adding that a failure by police to investigate complaints would be “utterly irresponsible.”
Screen conceded the point, but emphasized that city officials and police failed to consider the free speech implications of his client’s conduct.
“It wasn’t on their radar,” he said.
U.S. Circuit Judge Chad Readler, a Trump appointee, pointed out that Novak was prosecuted for the disruption of public services, not his speech, but Screen pushed back.
“The effects of speech are protected,” the attorney said, “unless they incite violence.”
Attorney John Travis argued on behalf of the city and its police officers, and placed a great deal of emphasis on probable cause.
He pointed out that at least nine legal authorities throughout the prosecution — both attorneys and judicial officers — found the officers had probable cause to search and arrest Novak for the disruption of public services.
“Novak undermined a legitimate government interest in public safety,” the attorney told the panel. “It is disingenuous to suggest the police would have known their conduct was unconstitutional.”
U.S. Circuit Judge Amul Thapar, another Trump appointee, asked Travis about a hypothetical scenario in which a popular satire website like the Onion or Babylon Bee posts an article about the police department’s attacks on the First Amendment.
Thapar asked the attorney if the websites could be shut down under the criminal statute if enough citizens called the police department to report concerns about the article.
“The disruption comes from the calls,” Thapar said. “Where do you draw that line?”
“That’s an interesting question,” Travis answered, “but it depends on the governmental interest at issue. There was an intent to disrupt here [with Novak].”
Friday’s arguments were conducted remotely and streamed from the court’s website.
No timetable has been set for the court’s decision.
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