Law doesn't impose 'most gullible person on Facebook' standard in suit over fake police page, 6th Circuit says
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A federal appeals court has refused to toss a lawsuit against the city of Parma, Ohio, by a “cyber culprit” prosecuted for creating a fake Facebook page for the city’s police department.
The 6th U.S. Circuit Court of Appeals at Cincinnati allowed Anthony Novak to sue the city and two Parma officers for First Amendment retaliation, prior restraint on speech, wrongful arrest, malicious prosecution and conspiracy. The court dismissed other claims because the officers were entitled to qualified immunity. Cleveland.com and Courthouse News Service have coverage.
Judge Amul Thapar wrote the July 29 panel opinion. President Donald Trump elevated Thapar to the 6th Circuit and reportedly interviewed him when searching for a replacement for Justice Anthony M. Kennedy.
“Apple pie, baseball and the right to ridicule the government. Each holds an important place in American history and tradition,” Thapar wrote at the beginning of the opinion. “So thought Anthony Novak when he created a Facebook page to mock the Parma Police Department.”
The parody page looked like the official police department page. Novak initially included a disclaimer, but he took it down after police posted a warning about the page on its official website and promised to investigate.
Novak’s fake page included an ad for a “pedophile reform event” in which pedophiles would receive honorary police commissions. He included a job posting that “strongly encourag[ed] minorities to not apply.” He posted an apology from the department for “neglecting to inform the public about an armed white male who robbed a Subway sandwich shop,” while promising to bring to justice an African American woman who was loitering outside the Subway during the robbery, according to the opinion.
“Novak’s page delighted, disgusted and confused,” Thapar wrote. “Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a ‘most gullible person on Facebook’ standard. The First Amendment does not depend on whether everyone is in on the joke. Neither is it bothered by public disapproval, whether tepid or red-hot.”
The page had about 100 followers and was up for 12 hours before Novak took it down. A handful of people called the police department to complain. Novak was arrested on a charge of disrupting police functions. Jurors acquitted him in August 2016, according to Cleveland.com.
In considering Novak’s claims, the appeals court stressed that the litigation was at an early stage, and some qualified immunity claims would not be resolved without more factual development.
A fact-finder will have to decide whether the fake Facebook page was a parody and whether the officers had probable cause to arrest Novak, the appeals court said.
If the officers did not have probable cause, Novak would have to show that the retaliation was a substantial or motivating factor for the arrest, and the officers would have arrested Novak even if the Facebook page didn’t criticize the department.
Other factual claims also will have to be resolved, the 6th Circuit said.
“Though Novak’s Facebook page mocking the Parma Police Department has since left the cyber world, several of his legal claims will live on,” the appeals court said.
The case is Novak v. City of Parma.
