6th Circuit Decision In First Amendment Parody Case Appealed To U.S. Supreme Court

A First Amendment parody case decided earlier this year by the 6th U.S. Circuit Court of Appeals recently landed on the doorstep of the United States Supreme Court.

The 6th Circuit in Novak v City of Parma, Ohio, et al. (Docket No. 21-3290) dismissed Anthony Novak’s First Amendment claims. Novak spent four days in jail after creating a parody Facebook account satirizing the City of Parma, Ohio Police Department. The federal appeals court held that Novak could not sue because qualified immunity applied and there is “no recognized right to be free from a retaliatory arrest that is supported by probable cause.” Qualified immunity is a judicially created doctrine that protects officials from lawsuits alleging they violated an individual’s rights. Qualified immunity only allows lawsuits where officials violated a “clearly established” statutory or constitutional right.

Novak has now asked the nation’s highest court to hear the case, hoping the justices will reverse the 6th Circuit’s decision.

Along with the First Amendment issues presented, the case became even more intriguing when The Onion, a well-known satirical publication, filed an amicus curiae brief in support of Novak. An amicus brief is when an individual or organization submits a document to a court that offers additional information and insight on issues presented in the case. Grand Rapids, Michigan attorney Stephen James van Stempvoort is listed as counsel of record for The Onion, while Grand Rapids, Michigan attorney D. Andrew Portinga is listed as counsel for the amicus curiae. Both lawyers are with Miller, Johnson, Snell & Cummiskey, PLC.

While The Onion’s amicus brief is somewhat of a parody in itself, it emphasizes the importance of the questions being presented to the Supreme Court. Those questions are:

• Whether a police officer is entitled to qualified immunity for arresting an individual based solely on speech that parodies the government, so long as no case has previously held the particular speech is protected.

• Whether the doctrine of qualified immunity should be reconsidered.

Background

Novak is an amateur comedian. In 2016, he created a Facebook page that parodied the official page of the City of Parma Police Department. The parody page was up and running for about 24 hours and, during that time, Novak made various satirical posts. For example, Novak posted the announcement of a new city ordinance that prohibited residents “from giving ANY HOMELESS person food, money or shelter for 90 days” in order to encourage the homeless population to leave the city. He also posted an announcement for a food drive to support teen abortions being performed in a “police van in the parking lot at Giant Eagle.”

Novak asserted that he tried to convey the satirical nature of the Facebook page, registering it as a community page rather than a government agency and changing the motto from “We know crime” to “We no crime.” Novak did acknowledge, however, that he copied the police department’s name and profile picture.

Novak was ultimately arrested for allegedly violating an Ohio state law that prohibits using a computer to “disrupt, interrupt or impair” police services. The cause for the arrest centered around the fact that the police department was forced to take calls from Parma residents who saw the parody Facebook account and were confused by it. An arrest warrant was issued, the police searched Novak’s home and he spent four days in jail. Novak was indicted by a grand jury for disrupting police functions. He was eventually acquitted of any wrongdoing.

In 2017, Novak sued the City of Parma, several police officers and a police investigator under 42 USC §1983. He asserted that his First Amendment right to free speech had been violated, among other claims. The case was initially filed in the U.S. District Court in Cleveland.

Novak appealed the U.S. District Court’s ruling, which had basically found in favor of the city and its police department. The 6th Circuit held in 2019 that Novak could sue the police department for alleged violations of his First Amendment rights, retaliatory and wrongful arrest, malicious prosecution, unlawful search and seizure, and civil liability for criminal acts. The 6th Circuit began that decision by saying: “Apple pie, baseball, and the right to ridicule the government, each holds an important place in American history and tradition. So thought Anthony Novak when he created a Facebook page to mock the Parma Police Department. …”

The City of Parma and the police officers also appealed. In that appeal, the 6th Circuit granted the officers qualified immunity on some, but not all, of Novak’s claims.

6th Circuit’s 2022 Ruling

The 6th Circuit dismissed Novak’s claims earlier this year. According to the court, Novak could not recover “because the officers reasonably believed they were acting within the law ….”

The 6th Circuit’s opinion began by addressing Novak’s First Amendment retaliation claim. The court noted that qualified immunity protects state officers against §1983 claims unless 1) “they violated a federal statutory or constitutional right” and 2) “the unlawfulness of their conduct was clearly established at the time” of the offense.

Although probable cause may have been difficult to ascertain in Novak’s case, the 6th Circuit said that qualified immunity was not because qualified immunity “protects officers who ‘reasonably pick[] one side or the other’ in a debate where judges could ‘reasonably disagree.’” And according to the court, that is exactly what the officers did in Novak’s case. “[T]hey reasonably found probable cause in an unsettled case judges can debate. Indeed, Novak has not identified a case that clearly establishes deleting comments or copying the official warning is protected speech. … [T]he officers could reasonably believe that some of Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause. What’s more, the officers had good reason to believe they had probable cause. Both the City’s Law Director and the judges who issued the warrants agreed with them. Reassurance from no fewer than three other officials further supports finding that the officers ‘reasonably,’ even if ‘mistakenly,’ concluded that probable cause existed. … That’s enough to shield [the officers] from liability. Thus, the officers are entitled to qualified immunity on Novak’s retaliation claims.”

Next, the 6th Circuit turned to Novak’s Fourth Amendment claims. The court noted the officers had relied on warrants signed by judges and that Novak could not show the officers had offered any false information to obtain the warrants. Therefore, the court said, the officers’ reliance on the warrants was “far from unreasonable” and they were entitled to a “complete defense” on the claims.

Regarding Novak’s malicious prosecution claim, the 6th Circuit said he could not show the officers aided in the decision to prosecute him. “A prosecutor’s independent charging decision typically breaks the causal chain for malicious-prosecution purposes,” the court wrote. “Novak does not argue on appeal that the police report included any false statements. Nor does he contend that the prosecutor relied on false statements … in deciding to prosecute him. So there was no misconduct at play here to maintain the causal chain through the prosecutor’s independent decision to bring a case against Novak.”

The 6th Circuit also denied Novak’s First Amendment prior-restraint claim, finding:

• Novak offered no evidence that a television interview with the police department constituted a “threat” to him.

• The police taking Novak’s phone and laptop was not a prior restraint because it “did not block all channels of communication. Indeed, the seizure didn’t even block him from using Facebook. Novak remained free to borrow friends’ electronics or to use a library computer if he wished to continue his social-media antics. So taking his phone and laptop imposed no prior restraint on Novak’s speech.”

• The police detective’s letter to Facebook, asking the platform to retain records related to the page in anticipation of a search warrant, was not a prior restraint because the officer only “requested” the page be removed. “What’s more, by the time Facebook got around to considering the request, Novak had deleted the page himself. The letter thus failed to have any effect at all on Novak’s ability to speak, since he removed the page of his own accord.”

In conclusion, the 6th Circuit also rejected Novak’s municipal liability claim against the City of Parma. “Novak cannot show that deficiencies in training caused the alleged constitutional violations,” the court said. “Indeed, the officers were trained to contact the Law Department … when difficult questions arose. That’s just what they did …. Once he assured them of probable cause, they obtained independent warrants for Novak’s arrest and the search of his apartment from two different judges. As the district court pointed out, it strains belief to think an introductory primer on the First Amendment would have led the officers to a different conclusion than three trained lawyers. So Novak can’t show that any failure to train actually caused or closely relates to his objections.”

Appeal To SCOTUS & Amicus Briefs

Novak appealed the 6th Circuit’s decision to the Supreme Court. The petition for a writ of certiorari was filed September 26, 2022.

The Onion filed its amicus brief in support of Novak on October 3, 2022, asking the Supreme Court to overturn the 6th Circuit’s decision. The Onion’s brief begins: “Americans can be put in jail for poking fun at the government? This was a surprise to America’s Finest News Source and an uncomfortable learning experience for its editorial team. Indeed, ‘Ohio Police Officers Arrest, Prosecute Main Who Made Fun of Them on Facebook’ might sound like a headline ripped from the front pages of The Onion – albeit one that’s considerably less amusing because its subjects are real.”

In its brief, The Onion explains that, for parody to be successful, “it has to plausibly mimic the original.” According to The Onion, the 6th Circuit’s decision “would condition the First Amendment’s protection for parody upon a requirement that parodists explicitly say, up-front, that their work is nothing more than an elaborate fiction. But that would strip parody of the very thing that makes it function. The Onion cannot stand idly by in the face of a ruling that threatens to disembowel a form of rhetoric that has existed for millennia, that is particularly potent in the realm of political debate, and that, purely incidentally, forms the basis of The Onion’s writers’ paychecks.”

The Onion’s brief sets forth the following arguments in support of Novak.

1. “Parody Functions By Tricking People Into Thinking That It Is Real.”

“That leverage of form - the mimicry of a particular idiom in order to heighten dissonance between form and content - is what generates parody’s rhetorical power. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580-81 (1994) (‘Parody needs to mimic an original to make its point.’). If parody did not deliver that advantage, then no one would use it. Everyone would simply draft straight, logical, uninspiring legal briefs instead.”

2. “Because Parody Mimics ‘The Real Thing,’ It Has The Unique Capacity To Critique The Real Thing.”

“One of parody’s most powerful capacities is rhetorical: It gives people the ability to mimic the voice of a serious authority – whether that’s the dry news-speak of the Associated Press or the legalese of a court’s majority opinion – and thereby kneecap the authority from within. … In the political context, the effect can be particularly pronounced. See Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 53–55 (1988); see also Falwell v. Flynt, 805 F.2d 484, 487 (4th Cir. 1986) (Wilkinson, J., dissenting from denial of rehearing) (‘Nothing is more thoroughly democratic than to have the high-and-mighty lampooned and spoofed.’).”

3. “A Reasonable Reader Does Not Need A Disclaimer To Know That Parody Is Parody.”

“Reasonable readers do not need to be told explicitly what they have no serious trouble figuring out for themselves. … And until the [6th] Circuit’s decision, that is what most courts have held. Some courts have expressly held that disclaimers aren’t required for parody to be protected. Campbell, for example, noted that ‘there is no reason to require parody to state the obvious (or even the reasonably perceived).’ 510 U.S. at 582 n.17; see also, e.g., Cliffs Notes, Inc. v. Bantam Doubleday Dell Pub. Grp., Inc., 886 F.2d 490, 496 (2d Cir. 1989) (‘There is no requirement that the cover of a parody carry a disclaimer that it is not produced by the subject of the parody, and we ought not to find such a requirement. …’). … Under a proper understanding of the reasonable-reader test, a disclaimer not only spoils the punchline but is redundant. The [6th] Circuit’s holding stands alone among the otherwise uniform approach courts have taken - and not in a good way.”

4. “It Should Be Obvious That Parodists Cannot Be Prosecuted For Telling A Joke With A Straight Face.”

“For millennia, this has been the rhythm of parody: The author convinces the readers that they’re reading the real thing, then pulls the rug out from under them with the joke. The heart of this form lies in that give and take between the serious setup and the ridiculous punchline. As Mark Twain put it, ‘The humorous story is told gravely; the teller does his best to conceal the fact that he even dimly suspects that there is anything funny about it.’ Not only is the [6th] Circuit on the wrong side of Twain, but grafting onto the reasonable-reader test a requirement that parodists explicitly disclaim their own pretense to reality is a disservice to the American public. It assumes that ordinary readers are less sophisticated and more humorless than they actually are. … The Onion intends to continue its socially valuable role bringing the disinfectant of sunlight into the halls of power. See Buckley v. Valeo, 424 U.S. 1, 67 (1976) (quoting Louis D. Brandeis, Other People’s Money and How the Bankers Use It … (National Home Library Foundation ed. 1933)). And it would vastly prefer that sunlight not to be measured out to its writers in 15-minute increments in an exercise yard.”

The Onion concluded its brief by asserting the Supreme Court should grant Novak’s petition for certiorari and hear the case. “[T]he rights of the people [should be] vindicated,” the brief states, “and various historical wrongs [should be] remedied. The Onion would welcome any one of the three, particularly the first.”

Case Timeline

Here is a procedural timeline of the case:

• Novak filed his petition for writ of certiorari with the Supreme Court on September 26, 2022.

• The Supreme Court docketed the case on September 28, 2022.

• The Onion filed its amicus brief on October 3, 2022.

• On October 3, 2022, the City of Parma and the police officers asked the Supreme Court to extend the time to file their response to November 28, 2022.

• On October 4, 2022, the Supreme Court granted the motion to extend the time for the City of Parma and the police officers to respond to the amicus brief to November 28, 2022.

• On October 28, 2022, four additional entities filed amicus briefs in support of Novak: The Babylon Bee, Cato Institute, Foundation for Individual Rights and Expression, and The Rutherford Institute.

• On November 3, 2022, the City of Parma requested an additional 45-day extension to file a response because of the additional amicus briefs that were filed. In addition, “the complex issues raised by [Novak] require undersigned counsel to confer with the Respondents, carefully review this matter, and prepare the opposition,” the motion states. As of the publication of this blog, the motion was still pending.

• On November 7, 2022, the Supreme Court granted the City of Parma’s second motion to extend the time to file a response, extended their deadline to January 11, 2023.

Stay tuned to the Speaker Law Blog for updates on this important case.