CINCINNATI (CN) – A parody Facebook account of an Ohio police department landed a local man in jail, but he was acquitted of a felony charge and his First Amendment lawsuit against the city and its police officers was heard Thursday in the Sixth Circuit.
In March 2016, Anthony Novak used his cellphone 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 page remained online for just 12 hours, court record shows, but included posts like this: “An apology for neglecting to inform the public about an armed white male who robbed a Subway sandwich shop, requesting assistance identifying the ‘African American woman’ loitering in front of the shop while it was robbed ‘so that she may be brought to justice.’”
Another allegedly stated: “A ‘temporary law’ introduced by the department forbidding ‘residence [sic] of Parma from giving ANY HOMELESS person food, money or shelter in our city’ as ‘an attempt to have the homeless population eventually leave our city due to starvation.’”
Parma Police Officer Thomas Connor monitored the parody page, sent several takedown requests to Facebook, and eventually received over 3,000 pages of records after he requested information from Facebook regarding the anonymous creator of the page.
Novak’s identity was among the records. Connor obtained a warrant and Novak was arrested and charged with disrupting public services, a felony.
The only evidence of disruption presented at trial was a series of phone calls made to the department by concerned citizens, and Novak was acquitted by the jury.
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.
“No reasonable person – whether police officer or Parma citizen – would believe that plaintiff’s posts were describing actual facts about the department,” Polster wrote. “Despite the defendants’ attempts to argue otherwise, it cannot be seriously contended that the Facebook page was anything but a parody. Thus, plaintiff was engaged in constitutionally protected speech.”
Refusing to toss the First Amendment retaliation claim, the judge criticized the city for responding to the parody account by announcing a criminal investigation.
“This action alone would have had a chilling effect sufficient to state a retaliation claim,” Polster wrote. “But announcing the criminal investigation … was only the beginning. Officer defendants sought and executed numerous search warrants against plaintiff. They sought an executed an arrest warrant against plaintiff, charged him with a felony, and put him in Cuyahoga County jail. They sought a grand jury indictment against plaintiff and testified against him in a felony trial. Each of defendants’ actions alone would chill a person of ordinary firmness from exercising his First Amendment rights.”
Attorney Steven Strang of Gallagher Sharp argued Thursday on behalf of the city of Parma and its police officers. He told the Sixth Circuit panel “this case is unlike any parody case” because the account’s “creator took affirmative steps to confuse the public.”
U.S. Circuit Judge Amul Thapar, an appointee of President Donald Trump who spoke frequently throughout the arguments, called some of the posts on the Facebook page ridiculous and asked how anyone could have thought the page was legitimate.
Strang told the judge that police received several calls from citizens who were confused by the page.
“Why do we care what a few people think?” Thapar asked.
U.S. Circuit Judge Chad Readler, another Trump appointee, echoed his colleague’s sentiments and asked, “Weren’t there also people who said ‘LOL’ [on the page]?”
Strang told the panel that Novak deleted several of the comments from the page and “actually heightened the confusion” by trying to make the account look as official as possible.
The attorney repeatedly told the judges that qualified immunity for the officers was the sole issue of the appeal, but Thapar seemed unconvinced.
“Was this parody or satire? That seems like a factual dispute that we don’t have jurisdiction to resolve,” the judge told Strang.
Attorney Subodh Chandra argued on behalf of Novak, telling the panel in his opening remarks that no American should fear prosecution for “mockery of the government.”
Judge Readler asked Chandra about Novak’s removal of comments from the page to further confuse the public.
“He did not do it as an effort to disrupt,” the attorney answered, saying it was instead meant to “extend the joke.”
Chandra cited the Sixth Circuit’s 2015 en banc decision in Bible Believers v. Wayne County, in which the full court ruled that a “heckler’s veto” could not be used to silence protected speech that might lead to violent altercations.
“Police cannot consider the reaction,” the attorney said, pointing out that the city justified its actions based on phone calls made to the police department.
Senior U.S. Circuit Judge Gilbert Merritt, a Jimmy Carter appointee, joined the panel by videoconference. No timetable has been set for the court’s decision.
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