CA6: Ptf arrested for a police parody Facebook page has much of case survive QI on retaliatory arrest

Plaintiff made a parody Facebook page of the Parma Police Department which ultimately led to his arrest for impeding police operations because the Parma Police had to field 12 minutes of phone calls over which was the real Facebook page. He was acquitted for that and sued. On qualified immunity, most of his case survives but some of it doesn’t. Ohio law may be unconstitutional, but qualified immunity would still apply to part of the case for lack of clearly established law. Novak v. City of Parma, 2019 U.S. App. LEXIS 22398 (6th Cir. July 29, 2019)*:

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.

Novak’s Facebook page was either a protected parody in the great American tradition of ridiculing the government or a disruptive violation of state law. Maybe both. At this stage, we decide only whether the officers are entitled to qualified immunity. For some of Novak’s claims they are, but for others they are not.

. . .

Whether Novak’s page was a protected parody is a question of fact that we cannot answer at this stage. See Hustler, 485 U.S. at 57 (“The Court of Appeals interpreted the jury’s finding to be that the ad parody was not reasonably believable, and in accordance with our custom we accept this finding.” (internal quotation marks and citation omitted)). 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.

. . .

To sum up, to resolve the retaliation claim, the factfinder below will have to decide: (1) whether Novak’s Facebook page was a parody, and thus protected speech, and; (2) whether the officers had probable cause to arrest Novak under the Ohio statute. If the officers did not have probable cause, they are not entitled to qualified immunity, and Novak can attempt to show the arrest was retaliatory. If the officers did have probable cause, they are entitled to qualified immunity even if Novak’s page was protected speech because the law at the time did not clearly establish that charging Novak under the statute would violate his constitutional rights.

. . .

Where a statute gives police broad cover to find probable cause on speech alone, probable cause does little to disentangle retaliatory motives from legitimate ones. Thus, this case raises new questions under Nieves. It may be that, based on the Supreme Court’s reasoning in that case and others, the general rule of requiring plaintiffs to prove the absence of probable cause should not apply here. We need not decide that now.