In May of 2016, Anthony Novak of Parma, Ohio, spent four days in jail for making fun of his local police department. The cause of this unfortunate encounter with law enforcement was his decision to engage in the longstanding American tradition of political parody by creating a spoof Facebook account of his local police department.
In order to make his parody work, Novak needed to make the page look convincing at first glance, so he copied the name and profile picture of the official Facebook account of the City of Parma Police Department. Although a quick look might have been enough to fool some people, a closer read revealed the page’s unserious nature. The parody page lacked the Facebook designations for an authenticated government‐associated page, and in its short twelve hours of existence the page amassed only seven posts. The first six posts advertised outlandish initiatives such as a free abortion program offered by the Parma Police and a modest proposal to rid the city of its homeless population through a program of starvation.
To keep up the joke, Novak deleted comments left on his posts indicating that they were inauthentic. After learning that the police were investigating the account, he made one final entry in his string of outrageous posts. Novak copied the Department’s clarification on its official page indicating that it was aware of the parody account and that Novak’s page was not associated with the department.
Novak was arrested nearly a month after he stopped posting to Facebook and charged with “disrupting police operations” under Ohio law. Fortunately for Novak, a jury of his peers saw the absurdity of the government’s humorless prosecution and acquitted him at trial. Novak then sought to vindicate his First and Fourth Amendment rights by filing suit against the city and arresting officers.
The officers asserted qualified immunity and moved to dismiss Novak’s suit, but their motion was initially denied by the district court and the denial was affirmed by the Sixth Circuit. On remand, however, the officers asserted qualified immunity again, and this time, the district court granted the officers qualified immunity and found that the City of Parma was also not liable. Novak appealed to the Sixth Circuit, where Cato and the ACLU filed an amicus brief arguing that his First Amendment rights were clearly violated. The Sixth Circuit affirmed the grant of qualified immunity, concluding that Novak’s deletion of comments from his Facebook posts and copying of the department’s clarification may have been unprotected “conduct” as opposed to protected speech under the First Amendment.
Novak, now represented by the Institute for Justice (IJ), has petitioned the U.S. Supreme Court to hear his case, and Cato has filed an amicus brief in support of his petition. We argue that the First Amendment protects online parody, including parodies using the novel medium of social media. The brief further argues that the Sixth Circuit erred in concluding that Novak’s “conduct” on Facebook is distinct from his speech. Finally, the brief explains why speech that is protected by the First Amendment cannot serve as the basis for probable cause to arrest. The Sixth Circuit’s erroneous logic would enable the government to criminalize a broad range of speech, so long as the government prosecutes under laws that don’t explicitly single out speech. This practice violates the First Amendment, and the Supreme Court needs to put a stop to it.
