In April, we blogged about Eubanks v. Woods, in which the Sixth Circuit reversed a district court’s grant of summary judgment in favor of Ohio police officers sued for First Amendment retaliation and unlawful arrest after the officers arrested the plaintiff for speech against the police.  Also in April, the same court heard Novak v. City of Parma, in which a plaintiff appealed a district court’s grant of summary judgment in favor of Ohio police officers for First Amendment retaliation and unlawful arrest after the plaintiff was arrested for speech against the police.  This time, the Sixth Circuit affirmed.

The opinion begins “Anthony Novak thought it would be funny to create a Facebook page that looked like the Parma Police Department’s.” But beyond being “funny,” Novak asserted that the masquerading social media page was an exercise of his fundamental American right to mock government officials.

The dupe page advertised outrageous events allegedly hosted by the Parma PD, and Novak deleted comments calling out the page as a fake.  After a handful of citizens called a non-emergency line alerting the department to the inauthentic account, the police televised a press release about the Facebook page, and Novak, feeling the heat, took it down. Nonetheless, the department pressed on with the investigation and obtained warrants under an Ohio law that makes it illegal to use a computer to disrupt or impair police functions.  Well after Novak had removed the page, officers arrested Novak, seizing his laptop and cellphone in the process.  Novak spent four days in jail awaiting bond and was subsequently prosecuted for his crime.  After he was ultimately acquitted by a jury, Novak brought a 1983 claim against the officers and the city of Parma, alleging First Amendment retaliation, unlawful arrest under the Fourth Amendment, malicious prosecution, prior restraints, and municipal liability.  He was unsuccessful as to all.

With respect to claims of First Amendment retaliation, it is well settled that protected speech alone cannot support a finding of probable cause.  However, the opinion wrestled with whether or not the fake page constituted protected parody, since the goal of Novak’s page seemed to venture beyond mockery into the realm of intentionally deceiving the public.  The court handily concluded that the officers, in assessing whether or not they had probable cause to arrest Novak, had not violated a constitutional right which was clearly established as unlawful at the time, since constitutional protection of Novak’s speech was a tricky question for the court.  Furthermore, the department’s supporting players enabled the officers’ quest for probable cause at every turn: after discovering that Novak was the author of the page (via a warrant), the officers consulted Parma’s Law Director about the merits of their case against Novak, and the Director advised that they had probable cause to seek a search warrant and an arrest warrant against Novak, both of which they subsequently obtained from a magistrate.  On these grounds, the officers were entitled to qualified immunity.

With respect to Novak’s claim of prior restraint, Novak asserted that by announcing the investigation on TV, confiscating his electronics, and suppressing Novak’s Facebook page, the department had preemptively prohibited his speech in violation of his First Amendment rights.  The court rejected all three of Novak’s arguments.  First, the court concluded that the televised announcement of a criminal investigation against the author of the page was not a threat of criminal prosecution intended to suppress Novak’s speech, but a warning to the public about the fake page.  Second, the search and seizure of his laptop were not absolute bars to speech, as Novak was still free to “borrow friends’ electronics” to continue expressing himself online.  Finally, in regard to an officer’s letter to Facebook requesting that the page be removed immediately, the letter was not a demand that Novak’s page be suppressed – and, regardless of whether or not it was a demand, the officer’s letter was not a prior restraint because at the time the request was made, Novak, after seeing the televised announcement of the investigation, deleted the page himself.

The court squashed all of Novak’s remaining claims: unlawful search and seizure under the Fourth Amendment failed in part due to the court’s conclusion that the officers had probable cause; malicious prosecution failed because the court concluded that the prosecutor had made an independent decision to prosecute; and Novak’s municipal liability and state law claims against the defendants failed to meet the high bars required to demonstrate municipal liability or overcome statutory immunity.

In Eubanks v Woods, the arresting officer was quoted as saying to the plaintiff “you say ‘fuck the police,’ and I’m supposed to uphold your First Amendment rights? How does that work?” In Novak, the arresting officer’s similar comment — that he “didn’t care about Novak’s First Amendment rights,” — was dismissed by the court as a non-malicious failure to “spot the [First Amendment] issue.”

After dismissing all of Novak’s arguments, the opinion concludes with a sharp tonal shift: “Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time? We have our doubts. And from the beginning, any one of the officials involved could have allowed “the entire story to turn out differently,” simply by saying “No.” Unfortunately, no one did.”

Novak v. City of Parma, Ohio, No. 21-3290, 2022 WL 1278981 (6th Cir., Apr. 7, 2022).