The Volokh Conspiracy
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From Novak v. City of Parma, decided today by the Sixth Circuit (opinion by Judge Amul Thapar, joined by Judges Gilbert Merritt and Chad Readler):
Apple pie, baseball, and the right to ridicule the government. Each holds an important place in American history and tradition. So thought Anthony Novak when he created a Facebook page to mock the Parma Police Department. He styled his page to look like the department's official Facebook page. But the similarities ended there. Novak shared posts like an advertisement for a "Pedophile Reform event," at which pedophiles would receive honorary police commissions.
Novak's page delighted, disgusted, and confused. 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….
This case comes to us after a motion to dismiss, so we take the facts as Novak alleges them and draw reasonable inferences in his favor. Novak created a "farcical Facebook account" designed to look like the police department's official page. The page was up for twelve hours and published several posts. Among the posts was a recruitment advertisement that "strongly encourag[ed] minorities to not apply." Novak also 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.
The page was polarizing. Some of its about 100 followers thought it was "the funniest thing ever." Others were angry. And yet others were confused, wondering whether this was the actual Parma police official Facebook page. A handful of people were so angry or confused that they called the police station. In all, the station received twelve minutes of calls. Others continued to enjoy the page, which soon "became a platform for a wide range of citizens to air their grievances about the Department." The officers later testified that they worried the page would confuse the public and that the "likely result is that people would call."
One of the page's audiences—the Parma Police Department—did not find the page funny. Once the officers got wind of Novak's page, they "all stopped what [they] were doing to take a look at it, and a couple of [them] tried to figure out who did it." One officer said they "just wanted it down." They took several steps to make that happen.
A Facebook battle ensued. First, the department posted a warning on its official Facebook page. The warning alerted the public to the fake page and assured them that the matter was "currently being investigated." Then Novak reposted the exact same warning on his own page. He claims he did this to "deepen his satire." For the same reason, Novak deleted "pedantic comments" on his page explaining that the page was fake, as these "clumsy explication[s]" only "belabored the joke."
After that, the conflict moved offline and into the real world. Officer Kevin Riley assigned Officer Thomas Connor to the case and tasked him with finding out who ran the page. So Connor sent a letter to Facebook requesting that the page be shut down immediately. He also sent an email to a different Facebook representative asking that the page be taken down. The police also informed local news outlets of the investigation. The case of the fake police page even appeared on the nightly news. At that point, Novak decided to delete his creation. He had heard of the department's investigation and was worried about the consequences.
Though Novak was done posting, the police department was not done investigating. They still wanted to find the person behind the laptop. So Connor subpoenaed records from Facebook. Riley directed Connor to go further and obtain a search warrant for Facebook. Novak alleges that Connor made several "material misrepresentations and omissions" to obtain that warrant. The warrant still issued, and Facebook disclosed that Novak was the one behind the fake account.
Once the department realized that Novak was the cyber culprit, Riley directed Connor to obtain two more warrants—one to search Novak's apartment and one to arrest him. The warrants said that Novak unlawfully impaired the department's functions, in violation of Ohio Rev. Code § 2909.04(B). Novak responds that, other than twelve minutes of phone calls to the department, the police department suffered no disruption to its functions. And Novak claims the officers were unaware of the twelve minutes of call time when they obtained the warrants. But, once again, the warrants still issued, and the department arrested Novak. The case went to trial, and Novak was acquitted.
Nova sued the City and Officers Rile and Connor; the Sixth Circuit held that most of his claims could proceed, and weren't defeated by the police officers' qualified immunity argument. Here's the heart of the parody analysis:
[Parody] is protected speech. The question … is whether Novak's page was a parody. The officers claim that his Facebook page was false and meant to mislead the public, not a parody. But they are wrong to think that we just look to a few confused people to determine if the page is protected parody.
Our nation's long-held First Amendment protection for parody does not rise and fall with whether a few people are confused. Instead, we must apply a "reasonable reader" test. Speech that "could not reasonably have been interpreted as stating actual facts" is a parody, even if "patently offensive." The test is not whether one person, or even ten people, or even one hundred people were confused by Novak's page. Indeed, the genius of parody is that it comes close enough to reality to spark a moment of doubt in the reader's mind before she realizes the joke….
And a parody need not spoil its own punchline by declaring itself a parody. "Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived)." Imagine if The Onion were required to disclaim that parodical headlines like the following are, in reality, false: Presidential Debate Sidetracked By Booker, De Blasio Arguing About Best Place In Lower Manhattan To Get Tapas, or, John Bolton Urges War Against the Sun After Uncovering Evidence It Has Nuclear Capabilities. The law of parody does not require us to strain credulity so far. And that is not because everyone always understands the joke.
Instead, the test for parody is whether a reasonable reader would have seen Novak's Facebook page and concluded that the posts stated "actual facts." Our nation boasts a long history of protecting parody and satire. "[F]rom the early cartoon portraying George Washington as an ass down to the present day, … satirical cartoons have played a prominent role in public and political debate." And parody, like all protected speech, need not be high-minded or respectful to find safe haven under the First Amendment. "One of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation." "The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided." We uphold this right, even where parody shocks us, because "[o]ur trust in the good sense of the people on deliberate reflection goes deep."
Whether Novak's page was a protected parody is a question of fact that we cannot answer at this stage. [Note that Novak wasn't asking for summary judgment on the grounds that any reasonable jury would have concluded that the speech was a parody; rather, defendants were arguing that the speech was, as a matter of law, not protected parody.-EV] Instead, the jury will have to answer that question. At this stage, though, Novak has alleged enough facts that a reasonable jury could find that his page was a parody.