Supreme Court Lets Police Get Away With Jailing Man Who Made Fun Of Them On Facebook

Without any dissent, the U.S. Supreme Court on Tuesday refused to hear an appeal from Anthony Novak, who was jailed for four days and charged with a felony for making a parody Facebook page of his local police department. By declining to take Anthony’s case, the Supreme Court leaves in place a lower court ruling that shielded both the officers and the city of Parma, Ohio from facing any legal liability for their actions.

“Anthony’s Facebook page was the type of government parody that the founders intended to protect through the First Amendment,” said Patrick Jaicomo, senior attorney at the Institute for Justice, which filed the cert petition on Anthony’s behalf.

Since the case sounded like a rip-off of an Onion headline, it even prompted The Onion to file its first-ever amicus brief. As “the single most powerful and influential organization in human history,” The Onion felt compelled to defend the free speech rights of satirists like Anthony and “to protect its continued ability to create fiction that may ultimately merge into reality.”

“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.”

Not to be undone by The Onion, The Babylon Bee also penned a paean to parody. “When parody is imperiled,” their brief argued, “citizens are deprived of one of their most effective means of criticizing the government.”

Tuesday’s rejection marks the end to a nearly seven-year-long legal battle waged by Anthony. While sitting at a bus stop on March 1, 2016, Anthony whipped up a fake Facebook page to make fun of the Parma Police Department. The posts were clearly satirical and over-the-top. For instance, on his page, Anthony announced a noon curfew as well as a job posting “strongly encouraging minorities to not apply.” The page even had a fake slogan to boot: “We no crime.”

Tipped off by a handful of residents, the Parma Police Department posted a notice on its Facebook page confirming that it was, in fact, the real Parma Police Department. Keeping the joke alive, Anthony then copied that notice to his page and deleted comments that called it fake.

But when the Department announced a criminal investigation into the parody later that night, Anthony deleted it—a textbook example of the chilling effect at work. All told, Anthony’s foray into parody only lasted 12 hours and produced six posts.

Although his page was no more, Anthony’s legal troubles were only beginning. After uncovering Anthony’s identity through Facebook, Parma police persuaded a judge that there was probable cause Anthony had violated an Ohio law that criminalized using a computer “to disrupt, interrupt, or impair the functions of any police…operations.” As evidence, the Department noted that it had received 11 non-emergency phone calls (i.e., not through 911) about Anthony’s page.

With warrants in hand, officers searched his apartment and arrested him. For good measure, police even confiscated all of his devices that could connect to the Internet, including his gaming consoles. Anthony was indicted and spent four days in jail. Ultimately, a jury acquitted Anthony on his felony charge.

To hold the police and the city accountable for violating his First Amendment rights, Anthony sued them in federal court. But last year, the Sixth Circuit U.S. Court of Appeals tossed his lawsuit. Although the court had “doubts” that it was “worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time” to go after Anthony, it nevertheless ruled that the officers were entitled to “qualified immunity.”

Created by the Supreme Court four decades ago, this legal doctrine protects all government employees from being held liable for violating a person’s constitutional rights, unless that right was “clearly established.” And to clearly establish a right, a victim must comb through hundreds of appellate court decisions and find a previous case that had almost the exact same fact pattern as their case.

Since Anthony had “not identified a case that clearly establishes deleting comments or copying the official warning is protected speech,” it was “reasonable” for Parma police officers to believe they could censor his Facebook page. And so, they were shielded by qualified immunity. With its decision, the Sixth Circuit undermined the First Amendment rights of not only Anthony, but everyone within its jurisdiction, which includes Ohio, Kentucky, Michigan, and Tennessee.

“I’m disappointed the Supreme Court won’t consider my case both because I won’t be able to hold the officers accountable for their violation of my rights, but also because I worry about what will happen to others who poke fun at the powerful,” Anthony said in a statement. “The government shouldn’t be able to arrest you for making a joke at its expense.”