In a first for the satirical news outlet, The Onion filed an amicus brief in the United States Supreme Court, one that contained plenty of the humor The Onion is known for. The brief supports a Northeast Ohio man who was arrested in 2016 for creating a parody Parma Police Department Facebook page.
Anthony Novak was acquitted on fourth degree felony charges for disrupting a public service in 2016 after he was arrested for creating the parody Facebook page. He then sued the Parma Police Department for violating his First Amendment right to free speech. A 6th Circuit judge ruled against him, and he’s appealing to the U.S. Supreme Court.
Patrick Jaicomo is a senior attorney with the Institute for Justice and is representing Novak.
"We were very excited to have The Onion's support in this case," Jaicomo said. "Obviously, anytime you're asking the United States Supreme Court to take a case, the biggest obstacle is getting its attention in the first instance since the Court gets thousands of petitions every year."
Jaicomo hopes the amicus brief catches the eye of clerks and justices on the Supreme Court, and he and Novak want people to know how important the case is to freedom of speech.
“You could look at my case even, you could like my page, you can think whatever you want, you can hate it, you can be like, ‘You’re an idiot!’ But just know that I just said something," Novak said. "That’s all I did. I said things, and the police actually arrested me for it.”
Jaicomo said this case could have major implications for freedom of speech in Ohio and the U.S.
“Now in Ohio, your First Amendment and Fourth Amendment rights are in great question because of Anthony’s case," Jaicomo said, "and so that’s why it’s so important for the Supreme Court to step in and say enough is enough.”
The case is centered on the legal doctrine of qualified immunity. The Supreme Court created the doctrine in the 1980s to protect government officials from being sued for unconstitutional conduct. Since then, it has been the center of many cases involving freedom of speech. In Novak's case, the 6th Circuit found his creation of the Facebook account was protected speech but not his deletion of comments calling the page fake.
"The only way that rights can be clearly established, according to the Supreme Court, is if there's an earlier case in your jurisdiction involving materially similar facts that said the specific thing in your case was already addressed and had been found to be unconstitutional," Jaicomo said.
Jaicomo said this case could decide whether qualified immunity or freedom of speech prevails in the U.S.
"There's only so much breathing room in the air here," Jaicomo said, "and the Court has to decide whether the First Amendment and the people or whether qualified immunity and the government get that breathing room."
If the Court takes up the case and rules in favor of Parma and qualified immunity, Jaicomo said that could call into question the validity of the First Amendment.
"That doctrine effectively removes constitutional rights that we are supposed to enjoy as Americans," Jaicomo said.
This case has far reaching implications for freedom of speech beyond satire and parody and beyond the boarders of Ohio. Jaicomo said the doctrine of qualified immunity can and has protected government officials and allowed them to prosecute citizens who say or do something they don't like.
"Everyone is now in danger of suffering a similar fate as Anthony if they cross the wrong person," Jaicomo said.
This is how Novak felt when he was arrested for the Facebook page.
"I mean I just made a parody page. That's all I was doing. I really was just trying to make my friends laugh, and they went after me with the full force of the law," Novak said. "There's a heroin pandemic going on in Parma at that point, probably all over the country, and yet I seem to be enemy number one."
Jaicomo said the threat of qualified immunity sends citizens a dangerous message.
"The message that's sent to everyone who sees it happen is, 'Wow, you know what? It's just easier to shut my mouth and not speak up, because I don't want to go through that process. I don't want my home to be rummaged through by armed police. I don't want to sit in a court room with years of prison hanging over my head,'" Jaicomo said.
Novak now lives in Cleveland. He said he's too scared to live in Parma, which is where he grew up. If the Supreme Court takes up his case, it could potentially end qualified immunity and the violations Novak said he's faced.
"What we're asking the Supreme Court to do if it takes the case is to sketch out much more broadly how the First Amendment and qualified immunity interact, and then we also ask it to say alternatively we don't need qualified immunity anymore," Jaicomo said. "Let's get rid of it. It was wrong when we created it. It's gotten worse over the last 40 years. It's time to throw that into the dust bin of history."
Lawyers for Parma have released a statement maintaining the police did not violate Novak’s rights since his page went “beyond mimicry." It went on to claim that falsely copying an official warning along with claiming to be an authentic page is not parody and that Novak's appeal is "groundless."
"The courts concluded that the police, who acted in keeping with the guidance of city and county legal advisors and within the bounds of warrants issued by judges, did not violate Mr. Novak’s rights," the statement said.
The Supreme Court has not yet decided whether it will hear the case, but it has set a Nov. 28 deadline for the City of Parma to file a response.
