When Parody Is The Probable Cause

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.

12 thoughts on “When Parody Is The Probable Cause

  1. JedD

    The First Amendment may protect parody, but Facebook doesn’t. Novak’s page violated its terms of service, so Parma asked Facebook to shut it down. Novak did so on his own. That should have been the end of it.

  2. Mark Schirmer

    Scott, I guess you missed the Exception Clause” that clearly states, “Government and government officials may ban, punish, or otherwise restrict speech that undermines or parodies them.” You could look it up. Google is your friend. Read a book.

  3. Jim Majkowski

    It’s a curious opinion, by a jurist whom Mitch McConnell urged as a top candidate for SCOTUS. Instead of holding that, while protected speech is not probable cause, the law is unclear, therefore qualified immunity, the court could easily have ruled that the arrests were pursuant to judicial warrants, not their own judgment, and the “reasonableness” of their own opinions was irrelevant. More damning, IMHO, was this little gem, in support of the District Court’s having taken from the jury resolution of a disputed fact material to state law malicious prosecution:

    …”[T]he officers are liable since they acted with “a malicious state of mind.” Appellant’s Br. 62. Ohio law defines that concept as a “willful and intentional design to do injury, or the intention or desire to harm another, usually seriously, through unlawful or unjustified conduct.” Schoenfield v. Navarre, 843 N.E.2d 234, 239 (Ohio Ct. App. 2005) (cleaned up). As we have discussed at length above, the officers’ conduct may have been lawful and justified by probable cause. But even if it wasn’t, the officers’ mistaken understanding of First Amendment law is far from intentional harm.”

    “Mistaken understanding of First Amendment law” rivals “concerned citizens protesting election irregularities” for sheer mendacity.

    Yet, Judge Thapar had the chutzpah to end his opinion with:

    ” But granting the officers qualified immunity does not mean their actions were justified or
    should be condoned. Indeed, it is cases like these when government officials have a particular obligation to act reasonably. Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time? We have our doubts. And from the beginning, any one of the officials involved could have allowed “the entire story to turn out differently,” simply by saying “No.” Bari Weiss, Some Thoughts About Courage, Common Sense (Oct. 19, 2021). Unfortunately, no one did.

    “Because the law compels it, we affirm. ”

    Cold comfort for Mr. Novak, who spent four days in jail (per the 6th Cir opinion) and who knows how much for bail and attorney services.

    1. SHG Post author

      That was what I expected Thapar to hold, that there was probable cause, and thus reasonable, not because it was, but because two judges held that it was when issuing warrants. Bad as that may have been, it would have been indisputable that cops can rely on the probable cause findings of neutral magistrates, right or wrong. I was shocked that he didn’t do so.

      1. Jim Majkowski

        “Neutral” magistrates? Only in the sense that they’re “honorable.” I lack your cred, but my trench is as dirty, if not worse.

          1. Michael Resanovic

            Shouldn’t “with all due respect”, said or written to a judge, be communicated either by silent mouthing or in size 1 font? It’s not like much is due.

            1. SHG Post author

              I was once informed by a judge that when I said the words “Your Honor,” it sounded like profanity. It’s a gift.

Comments are closed.