The Onion, the nation’s best-known parody publication, did something this week it had never done before: it filed a case with the United States Supreme Court.
In a legal filing that is as persuasive as it is funny, The Onion used its mastery of parody to urge the court to hear the case of Anthony Novak, an Ohio man arrested and charged with a felony for parodying his local police. on Facebook.
The case shows how qualified immunity thwarts constitutional rights – in this case, allowing police to arrest, jail and prosecute a man for mocking them on social media. As lawyers representing Novak, we call on the Supreme Court to promote the principles of the First Amendment above the doctrine of qualified immunity.
“We no crime” parody account
Bored of waiting for the bus after work, Novak, an aspiring comedy writer, decided to create a parody Facebook page poking fun at the police in Parma, Ohio, in 2016. While the page looked like the real thing, it lacked verification and tellingly displayed the satirical tagline. : “We have no crime.”
Novak posted six posts – all obvious parodies. They included an announcement that new officers would be recruited based on 15 multiple-choice questions followed by a hearing test and “strongly encouraging minorities not to apply”, and an “UPDATE” on a ” pedophile reform event,” where participants who solved a series of puzzles would be removed from the sex offender registry and made honorary police officers.
The Parma police were not amused. A police officer announced on television a criminal investigation into the parody page. So Novak pulled it out. He had only been online for 12 hours.
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Despite the page being deleted, the police continued. Nearly a month after Novak shut down the parody account, police arrested him, raided his apartment, seized his electronics, and jailed him for several days. To justify their actions, police and prosecutors fabricated a charge under an Ohio hacking law, making it a crime to use a computer to disrupt police operations.
According to their theory, Novak’s posts disturbed police because 11 people called the non-emergency line to chat on the page. Remarkably, multiple judges approved the charges and Novak was put through a full criminal trial. A jury found him not guilty.
Outside the criminal proceedings, Novak sued the police who violated his rights. Unsurprisingly, the officers asserted qualified immunity — a legal doctrine the Supreme Court created in 1982 to shield government employees from constitutional liability unless their specific actions are dealt with in an earlier court ruling involving similar facts.
First Amendment rights at stake
Novak’s case eventually went to the Ohio Federal Court of Appeals, which sided with the officers. Not because Novak’s posts weren’t parody or because parody isn’t constitutionally protected. They were, and it is. Instead, the court used qualified immunity to circumvent Novak’s First Amendment rights, dismissing his case because “officers could reasonably believe that some of Novak’s Facebook activity was not parody. “, since he had deleted Facebook comments calling his parody fake.
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After all, the court explained, no previous decision has specifically ruled that “deleting comments … is protected speech.”
Now Novak, with the help of the nonprofit Institute for Justice, where we are lawyers, is asking the Supreme Court to end the many injustices he and others like him have faced because they found themselves on the wrong side of qualified people. immunity.
The Onion’s amicus explains the absurdity of this decision by virtue of some of the oldest and most fundamental concepts of free speech: Requiring writers to spoil the joke would disarm the rhetorical power of parody. Novak’s Supreme Court petition advances this critical First Amendment issue, but also illustrates how destructive qualified immunity is to our constitutional rights.
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Sure, the Constitution says we have freedom of speech and the right to be free from unreasonable search and seizure, but what good are those freedoms if they can’t be protected by modern courts? Would you report government officials on social media knowing there was a good chance you would be arrested and imprisoned? Would journalists cover difficult subjects with this threat hanging over them?
That’s what qualified immunity allows, and it’s one of the many reasons the Supreme Court needs to take Novak’s case and overturn the doctrine.
Patrick Jaicomo and Anya Bidwell are attorneys at the Institute for Justice, leading its Immunity and Liability Project. They represent Anthony Novak and others who have been denied their constitutional rights by immunity doctrines such as qualified immunity.
This column is part of a USA TODAY Opinion series on police accountability and building safer communities. The project began in 2021 looking at qualified immunity and continues in 2022 looking at various ways to improve law enforcement. The project is made possible in part by a grant from Stand Together, which does not provide editorial input.