Some people don’t get parody. Others don’t think it’s funny. When Anthony Novak decided to create a parody site for the Parma Police Department, he thought it was funny. But as Sixth Circuit Judge Amul Thapar wrote, “The Department was not amused.”
According to Anthony Novak, he created “The City of Parma Police Department” Facebook account—a knockoff of the Department’s real page—to exercise his “fundamental American right” of “[m]ocking our government officials.” And mock them he did. In less than a day, he published half-a-dozen posts “advertising” the Department’s efforts, including free abortions in a police van and a “Pedophile Reform event” featuring a “No means no” learning station. The page spread around Facebook. Some readers praised its comedy. Others criticized the page or called out that it was fake. (He deleted their comments.) And still others (nearly a dozen, in total) felt it necessary to call the police station. A few asked if the page was real. The rest expressed confusion or alerted the police to the fake page.
That some people were confused by the parody site is unsurprising. Good parody will do that. That some called the police to report it is also unsurprising. Some people have no sense of humor. But it was those calls that gave cover to the police belief that Novak may have committed a crime.
Connor eventually got a search warrant for Facebook, and he discovered that Novak was the page’s author. Unsure what sort of case they had, Riley and Connor sought advice from Parma’s Law Director, Timothy Dobeck. Dobeck concluded they had probable cause and could seek two more warrants: an arrest warrant from Magistrate Judge Edward Fink and a search warrant from Judge Deanna O’Donnell. The grounds? An Ohio law that makes it illegal to use a computer to disrupt or impair police functions. Ohio Rev. Code § 2909.04(B). Both judges found there was probable cause and issued the warrants.
Novak went to trial and was acquitted. He then sued the police and others under § 1983, together with other causes of action, some of which survived the police 12(b)(6) motion, holding that the officers should not receive qualified immunity for arresting Novak in retaliation for the exercise of his constitutional rights. That he was acquitted of the state law crime isn’t sufficient to prevail, as the basis for arrest is probable cause, not proof beyond a reasonable doubt.
But there’s a catch: “[P]rotected speech cannot serve as the basis” for probable cause.
In the ruling on the motion to dismiss, the court held that the only basis for the arrest was Novak’s speech. His protected speech. His free speech. But since review on summary judgment is de novo, Judge Thapar weaseled out of the prior holding in footnote 1.
We recognize that our prior opinion in this case suggested that Novak’s speech was the only source of probable cause for the officers. See Novak, 932 F.3d at 431. But we now review the question at summary judgment, where our review is no longer limited to Novak’s complaint. And though Novak’s Facebook activity and its consequences form the sole basis for probable cause (since he didn’t do anything else, like hack into the Department’s page), it’s possible that not all of his Facebook activity was protected speech. While it’s reasonable for Novak to argue that deleting comments and copying the Department’s clarification post were speech— specifically, efforts to “deepen his satire,” —it was similarly reasonable for the officers to view those activities as unprotected conduct.
In other words, the circuit, which previously held that the sole basis for probable cause was speech, now turns sufficiently squishy to make the officers belief that it was unprotected speech reasonable. And, indeed, the reasonableness of that view is shared, bolstering the reasonableness of the officers’ view.
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. Wesby, 138 S. Ct. at 591 (cleaned up). That’s enough to shield Riley and Connor from liability.
In other words, if lawyers and judges were wrong about believing that the exercise of a constitutional right could suffice to establish probable cause, how could the officers’ belief not be reasonable as well?
Thus, the officers are entitled to qualified immunity on Novak’s retaliation claims.
The problem with this indulgence in sophistry is Judge Thapar’s forgetting the “catch,” that “'[P]rotected speech cannot serve as the basis’ for probable cause.” While the reasonableness of the officers’ confusion, as bolstered by the finding of probable cause by a lawyer and two state judges who issued warrants predicated upon their finding probable cause, may be sufficiently shown, it does not obviate two fundamental problems. The first is that reasonably dopey officers, lawyers and judges do not make the First Amendment disappear. Neither police confusion, nor the number of others similarly confused, make the First Amendment not apply.
The second problem is that this was, as Judge Thapar inadvertently noted, clearly established law, that “'[P]rotected speech cannot serve as the basis’ for probable cause.”
By tossing into the mix the potential that the parody site, which is clearly protected, might have included unprotected activity because Novak deleted comments that alerted others that his site was parody and included verbatim language from the real site, as creating a sufficient question that it might not all be protected, makes no sense.
Whether these actions—deleting comments that made clear the page was fake and reposting the Department’s warning message—are protected speech is a difficult question.
No. No, it’s not difficult at all. Not even a little bit. And saying so does not give rise to a “debate where judges could ‘reasonably disagree'” so as to insert some degree of doubt as to whether this law is “clearly established.”
Initially, there is no serious doubt that it was all protected speech, even if the police and state judges weren’t sufficiently familiar with the First Amendment to recognize the obvious. Further, whether speech is protected is for the court to decide, not to be subject to the reasonableness of cops or state court judges being ignorant of what constitutes protected speech.
It may well be correct that, from the standpoint of ignorance of constitutional rights, the officers’ belief that there was probable cause was reasonable. But the right to free speech isn’t contingent on the reasonableness of the officers’ ignorance of “clearly established” law. The First Amendment protects parody, whether the cops are amused or not.