Cops Who Arrested Man Over Fake Facebook Page Get Qualified Immunity

Anthony Novak's arrest and subsequent lawsuit set up a debate around overcriminalization and free speech.

In March 2016, Anthony Novak found himself in a jail cell for several days, his phone and computer seized by police. His offense: For 12 hours, he operated a parody Facebook page mocking the police department in Parma, Ohio, advertising fake community-outreach events like a "Pedophile Reform" meeting and a gathering with free abortions out of a police van.

After several people contacted the station, police went on to secure several warrants: a search warrant for Facebook, another for Novak's apartment, and an arrest warrant. He was prosecuted under an obscure Ohio law that prohibits using a computer to hinder police duties.

A jury wasn't convinced. Novak was acquitted, his peers unswayed by the claim that the approximately 10 phone calls the page elicited to the department caused a disruption in operations. "The statute he was charged under was clearly aimed at people who intentionally clog 911 lines or hack an agency's website," Ari Cohn, an attorney who focuses on the nexus between free speech and technology, tells Reason. "If creation of a parodical department page really has that level of effect, the Parma Police Department should do some serious soul searching as to what it's actually doing."

Yet a federal court was similarly not persuaded by a civil suit filed by Novak, who argued that the officers violated his constitutional rights, setting up a debate around overcriminalization and free speech.

"While protected speech can be evidence that a speaker committed a separate crime, the First Amendment bars its use as the sole basis for probable cause," writes Judge Amul Thapar of the U.S. Court of Appeals for the 6th Circuit. Point for Novak. But some of Novak's other actions derailed his claim: "He also modeled his page after the Department's, using the same profile picture. He deleted comments that let on his page wasn't the official one. And when the Department tried to clarify that Novak's page was imitating its own, he copied the official page's clarification post word for word."

Put more plainly, Novak's words were protected speech. But scrubbing words and parroting the department might not have been, according to Thapar.

The decision goes on to grant the officers qualified immunity, which prevents state and local government actors from having to face civil suits for allegedly violating people's rights if there is no prior court precedent clearly litigating the facts of a plaintiff's accusation. His suit was therefore doomed. "Novak has not identified a case that clearly establishes deleting comments or copying the official warning is protected speech," notes Thapar.

Had Novak overcome qualified immunity, he was not guaranteed any monetary damages; he would merely have been given the opportunity to state his case before a jury for their review.

"The 6th Circuit's decision is just the latest exemplar of the absurdity that qualified immunity has wrought, with its unwarranted deference to police who violate constitutional rights," adds Cohn. "The parodical Facebook page is very clearly protected by the First Amendment, and the court's weaseling its way into finding a question about that beggars belief. The power of parody and satire draws in large part from its ability to closely mimic its target while adding absurdist exaggeration."

Though Thapar was not satisfied that the officers acted unreasonably under the law, he appeared skeptical that their actions were sensible. "Granting the officers qualified immunity does not mean their actions were justified or should be condoned…. Was Novak's Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak's and the government's time?" he asks. "We have our doubts."