The First Amendment protects the right of every American to criticize the government and its officials. That criticism often comes in the form of jokes and parody, and, in the era of social media, it is often accomplished online. But unlike most government officials, police can use their power to directly silence critics by jailing them—at least in Ohio, as well as in Kentucky, Michigan and Tennessee. A new Supreme Court appeal from the Institute for Justice (IJ) asks whether freedom of speech actually protects Americans or whether police can arrest you for what you post on Facebook.
“Anthony Novak was arrested, jailed, and prosecuted because he made fun of his local police department on Facebook,” said IJ Attorney Patrick Jaicomo. “Razzing police isn’t a crime; it’s protected by the First Amendment. In fact, parodies like those Anthony posted have an American history going back to the time of George Washington. The Supreme Court should make it clear that qualified immunity cannot protect police officers who punish people for exercising the freedom of speech.”
Anthony Novak grew up in Parma, Ohio. The local police department was long fraught with problems. So one day, while waiting for the bus to take him home, he came up with the idea to poke fun at the Parma Police Department by creating a parody Facebook page. By the time he sat down on the bus, he had made his first post.
That post and the five that followed it mocked the department’s reputation for heavy-handed tactics and other questionable policing. Unexpectedly, Anthony’s parody received a lot of views. By the end of the day, a police spokesman was on local television assuring the public that the page was fake and threatening a criminal investigation into the Facebook page. Because of that threat, Anthony took down the page. It had been up about 12 hours.
But three weeks later, in the middle of the night, Anthony was arrested. His home was raided, and police seized everything that could connect to the internet, including his roommate’s devices and video game consoles. Anthony was charged with a felony for “disrupting police operations” and he spent four days in jail before he could make bail. After a full criminal trial, a jury found Anthony not guilty on all charges.
Following his acquittal, Anthony sued the police and the city for violating his First and Fourth Amendment rights. The 6th U.S. Circuit Court of Appeals granted the officers qualified immunity, meaning that Anthony could not hold them accountable for violating his constitutional rights.
Why? Because, even though the court acknowledged that parody was protected by the Constitution, no previous case had held that Anthony’s specific speech was. IJ’s petition to the Supreme Court asks the Court to take up Anthony’s case and decide whether government officials are entitled to qualified immunity when they arrest someone based purely on speech. More broadly, it asks the Supreme Court to do away with qualified immunity altogether.
“I sued to hold the police accountable for violating my rights, but also to make sure this doesn’t happen to anyone else,” said Anthony. “My Facebook page was obviously a joke, but the criticism was serious. I hope the Supreme Court will take my case and put other police forces on notice by making it clear that what happened to me was wrong.”
Anthony’s case is not the only example of police using their power to punish a joke. IJ is also representing Waylon Bailey of Alexandria, Louisiana in a suit against the Rapides Parish Sheriff and one of its detectives. In March 2020, Waylon posted a joke equating the developing COVID-19 pandemic to a zombie outbreak. His post included emoji and referenced Brad Pitt’s starring role in the movie World War Z. Sheriff’s deputies showed up at Waylon’s home, arrested him and charged him under an anti-terrorism law.
Like Anthony, Waylon sued over the violation of his constitutional rights. But, like the officers in Anthony’s case, the detective who arrested Waylon was granted qualified immunity by a federal trial court. IJ is now appealing Waylon’s case to the 5th U.S. Circuit Court of Appeals.
“If the police can use their authority to arrest their critics, everyone’s rights are at risk,” said IJ Attorney Caroline Grace Brothers. “Criticizing or making fun of the police on the internet is no different than doing so in books, pamphlets or the public square. Getting arrested for a humorous Facebook post is no joke.”
The Institute for Justice is a non-profit, public interest law firm that protects the First Amendment across the country. Recently, IJ successfully defended a Wisconsin woman from a defamation suit filed by a city attorney who did not like her criticism published in a local newspaper. IJ is currently defending an Ohio man targeted by police for his campaign advocacy and a Wisconsin family cited by code enforcers after they criticized the town council. These cases are part of IJ’s work in support of the First Amendment and its Project on Immunity and Accountability, which seeks to ensure that every constitutional right has a remedy in American courts.