Given the right’s fixation on Big Tech censorship and what it imagines the words “free speech” to mean, you might think that conservative judges, when given the opportunity, would afford maximum protection to a dumb parody Facebook page. You’d be crushingly wrong. In Novak v. City of Parma, the Sixth Circuit Court of Appeals recently had a choice between ensuring some thin-skinned cops suffered no consequences for their actions, or defending the much-vaunted ideals of free speech. As is usually the case when courts have a choice between protecting cops and doing literally anything else, the cops came out on top.
This case began when one Anthony Novak of Parma, Ohio, created a Facebook page called “The City of Parma Police Department.” His page parodied the real Parma Police Department’s page in an overblown and obvious way, offering community outreach services like “free abortions in a police van” and advertising a “Pedophile Reform event” featuring a “No Means No” learning station.
When the real Parma police learned of this outrage, they responded in a normal, measured wa—haha, no, they somberly announced a full investigation and sent a letter to Facebook demanding that it retain all the data related to the fake page, a step that typically precedes litigation or, in this case, criminal charges. They then issued a press release warning the town about the fake page, as if a parody ad offering abortion care performed by cops were a grave threat to public safety. Novak deleted comments that noted his page was fake, and posted to his fake page the real police department’s warning about it. After that, he took the page down, as he was worried he’d get in trouble.
He was right. The page’s deletion was not enough for the intrepid members of the Parma Police Department. They got a search warrant for Facebook, learned Novak was the author, and arrested him, charging him under an Ohio law that makes it a crime to use a computer to “disrupt or impair” police functions. Novak spent four days in jail before a jury acquitted him. Eventually, he brought this lawsuit alleging—and this is a technical term—a truckload of hilariously obvious First Amendment violations.
In a normal world where the federal courts still worked, this isn’t even a close case. Parody and satire is protected speech under the First Amendment, and the more obvious the parody, the more likely it will receive protection. Previously, the Supreme Court has acknowledged that parody can “provide social benefit,” and that parody necessarily borrows from the original to make its point. Even bad parody is covered; as a New York federal judge wrote in a 1992 case about trademark infringement, “First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed.”
But in Novak, Sixth Circuit didn’t reach the free speech issues. Rather, their decision turns on qualified immunity, the judge-created doctrine that protects police from civil lawsuits when they are alleged to have violated someone’s constitutional rights. Under qualified immunity, cops are not on the hook even for flagrant violations of rights as long as their conduct didn’t run afoul of “clearly established” law.
As Hannah Mullen has noted for Balls & Strikes, the Supreme Court has since read this loophole so generously that cops are presumed to have no knowledge they’re doing something wrong unless a previous case with nearly-identical facts exists in which a court decided cops did do something wrong. Under the prevailing view of qualified immunity, you could avoid a conviction for going 120 MPH in a school zone simply because previous convictions had only dealt with speeds of up to 85 MPH, and you therefore didn’t have enough firm guidance not to push the needle into the red.
And that’s what the Sixth Circuit decided here, too, in a decision from a conservative all-star panel of George W. Bush appointee Chief Judge Jeffrey Sutton and Trump appointees Amul Thapar and Chad Readler. Thapar, writing for the panel, asserted that Novak couldn’t cite to a case that was exactly the same as this case—one that “clearly establishes” that “deleting comments or copying the official warning is protected speech.” Thus, the police couldn’t have known that arresting him for running a joke Facebook page was wrong.
This is ridiculous, particularly in contrast with the court’s broad reading of Ohio’s disruption statute—the law under which Novak was charged. The Sixth Circuit found there was no floor for what counts as disruption of a public service, so the fact the cops simply felt disrupted by phone calls about the fake page was enough to make the statute apply. Novak was supposed to be on notice that creating a fake Facebook page was enough to get him arrested, but the cops couldn’t possibly understand that parody is free speech because there had never been a case exactly factually like this one.
This use of qualified immunity to protect cops who were upset about a social media joke has a particularly stupid coda. Per The Verge’s Sarah Jeong, two judges on this panel employ as clerks former Stanford Law Federalist Society members who love free speech so much they tried to stop a classmate from graduating for his crime of posting an objectively hilarious flyer mocking FedSoc for being rife with insurrectionists. The Federalist Society to federal courts pipeline, it seems, is running as smoothly as ever.
The Novak decision infuses the conservative legal movement’s “free speech for me, but not for thee” ethos with a little gratuitous Back the Blue energy, just for fun. But the result is the same: Speech is free, except when it makes powerful people sad, in which case cops—with the legal system’s blessing—can do what they want.