Anthony Novak appears in a photo provided by the Institute for Justice after the Supreme Court denied his petition for writ of certiorari on Feb. 21, 2023.
The U.S. Supreme Court on Tuesday allowed a police department in Ohio to claim qualified immunity after officers falsely arrested and prosecuted a man for making fun of law enforcement on Facebook.
“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 Novak said in a statement his attorneys provided to Law&Crime. “The government shouldn’t be able to arrest you for making a joke at its expense.”
On March 2, 2016, Novak published a parody version of the Parma Police Department’s Facebook page that was up for roughly 12 hours.
Novak penned six posts as the fake police department, including an advertisement for a “Pedophile Reform event” in which participants could be removed from the sex offender registry and become an “honorary police officer” by solving “puzzles and quizzes.” Another post said that officers had “discovered” an “experimental” abortion procedure they would provide for free to teenagers in a police van. One post said the department was soliciting job applicants but that minorities were strongly encouraged “to not apply.”
Police claimed the parodies “crossed the line” and were a “risk to public safety.” Ultimately, Novak was tried under an Ohio law prohibiting the use of a computer to “disrupt” or “interrupt” police functions. He was acquitted by a jury and subsequently sued the city and its officers over the violation of his First Amendment rights.
After wins, appeals, remands, and losses, Novak sought a final verdict from the Supreme Court on the PPD’s qualified immunity defense.
His 50-page petition for writ of certiorari posed the specific question of whether “an officer is entitled to qualified immunity for arresting an individual based solely on speech parodying the government, so long as no case has previously held the particular speech is protected.”
In other words, Novak was asking whether or not a lower court was correct to grant the PPD qualified immunity from the lawsuit because, in the lower court’s estimation, there was no prior precedent on point that clearly established his right to parody a police department.
In an orders list on Feb. 21, the nation’s high court denied certiorari, effectively answering that question in the affirmative for the PPD.
Qualified immunity is a judge-created concept that shields federal and state officials from liability. It requires a plaintiff to show the right they were deprived of is either specifically codified by statute or is otherwise “clearly established” by case law at the time of the incident.
The modern iteration of the doctrine was created by the U.S. Supreme Court in the late 1960s in order to protect southern police officers and judges in cases involving Civil Rights protesters. While politicians of both major parties have lambasted the concept in recent years for depriving victims of legal recourse, the justices have routinely snubbed cases about it.
The nine justices’ rejection of Novak’s appeal means his lawsuit against the department comes to an end – without the court actually deciding on any of the legal issues at stake in the controversy.
“Sadly, the U.S. Supreme Court decision today leaves in place a ruling that allows qualified immunity to override the free speech rights of every person in Ohio, Michigan, Kentucky, and Tennessee,” Institute for Justice Senior Attorney Patrick Jaicomo said in a statement provided to Law&Crime. “Anthony’s Facebook page was the type of government parody that the founders intended to protect through the First Amendment, which is why The Onion and The Babylon Bee supported our appeal. That everyday people can see the inside of a jail cell for their jokes on Facebook is yet another reason why qualified immunity must come to an end.”
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