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Rutherford Institute Asks Supreme Court to Limit Use of Qualified Immunity by Police, Safeguard Right to Criticize the Government Through Satire

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Published on: November 11, 2022

WASHINGTON, DC — The Rutherford Institute has weighed in before the U.S. Supreme Court on behalf of an Ohio man who was arrested, jailed, had his apartment searched, and his phone and laptop seized by police in retaliation for mocking the police department on a parody Facebook page. In an amicus brief asking the Supreme Court to hear the case of Novak v. City of Parma, Rutherford Institute attorneys argue that government officials should not be permitted to retaliate against citizens for exercising their First Amendment rights, nor should they be granted qualified immunity as a means of shielding them from accountability.

“This may be one of the most important cases in recent years to attempt to level the playing field when it comes to the citizenry’s First Amendment right to criticize the government, police misconduct and the misguided doctrine of qualified immunity,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Qualified immunity is how the police state stays in power, by ensuring that government officials are not held accountable for official misconduct and incentivizing lawless behavior without fear of repercussions.”

The case arose in March 2016 after Anthony Novak anonymously created a parody Facebook page to mock the Parma Police Department and published six posts on the parody page ridiculing the police as incompetent, racist, cruel, and lenient on serious crime. The satirical posts included: an announcement about a white male who got away after committing an armed robbery of a Subway sandwich shop, but only requesting information to “bring to justice” an “African American woman” who was merely loitering in front of the shop during the robbery; an announcement that new police officers would be eligible based on “a 15 question multiple choice definition test followed by a hearing test” but “strongly encouraging minorities to not apply”; and an announcement of an “official stay inside and catch up with family day” to “reduce future crimes” during which anyone outside would be arrested. Novak deleted the page after 12 hours, but not before several Facebook users had reported it to police as a fake page. Police claimed that the handful of non-emergency calls from concerned citizens reporting the fake page disrupted public services. Although Novak defended his parody site as his attempt “to exercise his fundamental American right of mocking our government officials,” he was charged with using a computer to disrupt police functions. Novak was subsequently arrested, jailed for four days before he made bond, and had his apartment searched and phone and laptop seized by Ohio police allegedly in retaliation for the parody Facebook page. At trial, Novak was found not guilty of the criminal charge. Novak in turn sued the police for retaliating against him and restraining his speech in violation of the First Amendment, and for malicious prosecution and unlawful search, seizure, and arrest in violation of the Fourth Amendment. The Sixth Circuit Court of Appeals subsequently granted police qualified immunity for arresting Novak over satirical posts that should be protected speech. In its amicus brief in Novak v. City of Parma, The Rutherford Institute is calling on the Supreme Court to limit the application of qualified immunity, especially as it pertains to retaliation against the right to criticize the government through satire.

Thomas J. Eastmond of Holland & Knight LLP advanced the arguments in The Rutherford Institute’s brief. Satire publications The Onion and the Babylon Bee also filed amicus briefs in the case.

Novak v. City of Parma

Amicus brief: The Rutherford Institute

Amicus brief: The Onion

Amicus brief: Babylon Bee

Article posted with permission from John Whitehead

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