Parma, Ohio Can’t Take A Joke. Can It Take A Civil Suit?
September 22, 2016 (Fault Lines) – Back in March of this year, Anthony Novak established that the Parma, Ohio Police Department couldn’t take a joke. They arrested him for creating a satirical Facebook page making fun of the department. Now, after being acquitted by a jury of his peers, Novak plans to test in federal court whether Parma can handle a civil rights. Novak’s civil suit, challenging the Parma Police Department’s violation of his First Amendment rights and calling the “Disrupting Public Services” statute unconstitutionally overbroad and vague, raises a host of issues worthy of discussion for those concerned in free speech as a whole.
To briefly recap the story of Anthony Novak’s tussle with the Parma Police Department, Novak created a satirical Facebook page almost identical to the one maintained by the Parma Police Department. While the imagery on the Facebook page was almost, no reasonable person could read the content and believe it came from an actual police department. Here’s an example of one such post.
The Parma Police Department & Parma Auxiliary Police Food Drive to benefit teen abortions will take place on Saturday. We will be giving free abortions to teens using an experimental technique discovered by the Parma Police Department. All teens must bring a note from their parents to be part of the experiment. The abortions will be held Saturday, 4/19/2016 from noon to 4 PM in a police van in the parking lot at Giant Eagle (7400 Broadview Rd).
Other, more ridiculous posts would follow, including one that made registered sex offenders an honorary Parma Police officer, a civil service test in which minorities were encouraged not to apply, and a directive for Parma residents to not feed homeless people in order to curb the homeless population.
The actual police didn’t find any of Novak’s jokes funny, and decided to find a way to arrest him for making fun of the police. The collar came under Ohio’s “Disruption of Public Services” statute, which makes it a felony to use things like Facebook and your laptop to “to disrupt, interrupt, or impair the functions of any police, fire, educational, commercial, or governmental operations.” It’s still hard to see how ridiculous Facebook posts would disrupt public services, but it was enough for Parma cops who couldn’t handle the ridicule.
Twenty-three days after creating his Facebook page, Parma police arrested Anthony Novak. During the four days Novak spent in jail, police obtained a search warrant to his residence and confiscated ten items, including “two hard drives, one laptop, two cell phones, two tablets, one junior drive, one Sony Playstation 4, and one Xbox 360.” Parma also issued a press release stating Novak was a bad guy worthy of a felony charge because he “posted derogatory and inflammatory information that purported to be from the Parma Police Department.”
None of this stuck, though. On August 11, a jury returned a “not guilty” verdict for Anthony Novak on the “disruption of public services” charge. This was a sound verdict. The question left is whether Novak’s civil suit against Parma has any legs.
From a legal standpoint, the most interesting allegation in Novak’s civil suit is a constitutional challenge to R.C. § 2909.04(B). Anthony Novak claims the statute is “unconstitutionally overbroad” since it gave the police “unfettered discretion to wrongfully arrest and charge civilians in the State of Ohio with a crime for exercising their First Amendment rights.” Absent that, the statute is “unconstitutional for vagueness,” which means its “language and terms are susceptible of multiple meanings…an ordinary and reasonable civilian would be unable to determine that conduct which is unlawful under the statute and that conduct which is permissible.”
The section in question reads:
No person shall knowingly use any computer, computer system, computer network, telecommunications device, or other electronic device or system or the internet so as to disrupt, interrupt, or impair the functions of any police, fire, educational, commercial, or governmental operations.
While it’s horrible that Parma decided to charge Novak under this statute, it’s not facially overbroad or vague as claimed. There are bad people out there who use technology to interrupt the work of fire departments, law enforcement, school districts, and governments. And while Novak might not have “disrupted” the work of the Parma police with his hyperbole and satire, there are people in this world who have no qualms about using the internet to send false 911 calls or engage in “Swatting”* to cause others harm.
Some of Novak’s claims, however, appear meritorious. One example is the search of Anthony’s residence and seizure of various pieces of electronic equipment in violation of the Fourth Amendment. While a judge in a moment of deference to law enforcement might approve the search and seizure of a Playstation 4 and an Xbox 360, there’s nothing on either device that would prove material to Novak’s prosecution. It looks like little more than harassment and malicious prosecution.
Another potential claim with merit is Novak’s allegations that Parma police committed the sin of “First Amendment Retaliation” against him during the arrest over his Facebook page. The Seventh Circuit gives some guidance on such claims and the elements necessary to prove them. The plaintiff must show their speech was protected, the defendant engaged in a retaliatory action over that speech “under color of law,” the plaintiff’s speech was a motivating factor for the defendant’s “retaliation,” and the plaintiff was harmed. Novak was arrested, incarcerated, and endured a jury trial for his satirical Facebook page. It’s not hard to draw a line to “First Amendment Retaliation.”
There are other issues with Novak’s complaint that appear spurious or illogical, such as the conspiracy claim in which Novak lists several officers as those who were the specific special snowflakes who couldn’t take criticism and decided to orchestrate his arrest and jail time as a result. Anthony Novak will require concrete evidence certain named officers in his suit actually conspired to take down his Facebook page with the help of a Facebook representative. If he can’t obtain that, it’s going to tarnish his civil suit.
Anthony Novak appears to be a good guy who suffered harm at the hands of a police department that couldn’t take a joke. It’s good that a jury of his peers found his treatment at the hands of law enforcement absurd and acquitted him in court. The biggest problem with this civil suit is that it smells of an oversell by someone wanting to collect a paycheck. While several First Amendment issues might be resolved in federal court, it’s painfully obvious that the result of Novak’s case, absent settlement, will leave a bad taste in the mouths of many who care about free speech and the First Amendment.