You Can Still Make Fun of the Police (We Think)
Tu stultus es, Latin for “you are dumb,” is the motto of The Onion, a humor magazine which bills itself as “the world’s leading news source.” The Onion claims that its motto is also its guiding light, its purpose being to point out that its readers are deeply gullible. Usually confining itself to parody and satirical comments on current events, the magazine has waded into a lawsuit worthy of its motto now in the United States Supreme Court.
Bear with us. What follows is the story of an actual appeal pending in the high court, not an Onion parody of a legal action.
Anthony Novak, a resident of Parma, Ohio, created “The City of Parma Police Department” Facebook account. Novak’s Facebook posts advertised that the Police Department was hosting a “pedophile reform event” where pedophiles could have their names removed from the sex offender registry and become honorary members of the department by successfully completing puzzles and quizzes; that the department had developed a technique for abortions, which it would be providing to teens for free in police vans; that the department was soliciting applications for job openings, but that minorities need not apply; and that the department was prohibiting Parma residents from feeding homeless people, so that they would leave due to starvation.
Public reaction was mixed. But once the department discovered the page, it warned the public of the hoax, started an investigation and discovered that Novak was the page’s author. Unsure what do next, two officers who had been on the case sought advice from Parma’s Law Director, who concluded that they had probable cause and could seek a warrant. Two judges were involved. One signed a search warrant, which led to seizure of the laptops, phones and game consoles of Novak and his roommate, the other an arrest warrant. Novak was arrested based on an Ohio law which makes it illegal to use a computer to disrupt police functions. He spent four days in jail before making bond.
A grand jury indicted Novak, who was acquitted after a jury trial. The jurors were either more forgiving or had a better sense of humor than Parma’s finest. Or maybe there was just no evidence that Novak’s prank did nothing to disrupt police operations. But Novak wasn’t through with the police. He went on the offensive, filing a civil rights lawsuit in federal court against the city and the two arresting officers. Novak claimed, among other things, that the Parma authorities had violated his free speech rights by arresting him.
A federal district judge in Ohio dismissed Novak’s suit, and the United States Court of Appeals for the Sixth Circuit affirmed the dismissal. His Supreme Court appeal is pending.
So why is The Onion so interested in this otherwise obscure lawsuit? One reason, its Supreme Court filing claims, is the threat to its “business model.” It explained: “This was only the latest occasion on which the absurdity of actual events managed to eclipse what The Onion’s staff could make up. Much more of this, and the front page of The Onion would be indistinguishable from The New York Times.”
The magazine also had a more serious concern. A principal basis for the Court of Appeals ruling was that Novak had failed to disclose that its Facebook page was a put on, suggesting that parodists had a duty to warn readers in advance that what they were about to read was untrue. Parody, The Onion contends, is successful only when it plausibly imitates its target, so that it can demonstrate the target’s absurdity. Requiring an advance warning would “strip parody of the very thing that makes it function.”
What saved the officers in Novak’s suit was the doctrine of qualified immunity, which protects state police officers against civil rights claims unless they have violated someone’s statutory or constitutional right and the unlawfulness of their conduct was well established at the time of the offense. These defendants were protected, at least in view of the Court of Appeals, based on their reliance on the city attorney and the judges who issued the warrants and that Novak’s deletion of comments on his Facebook page by persons who made clear they were in of the gag, so that visitors to the page would have no advance warning of the page’s true nature.
It’s pretty well established that parody and criticism of the police are protected by the First Amendment and that protected speech cannot be the sole basis for a finding of probable cause. Some citizens of Parma may have believed what they read on Novak’s website. But as The Onion pointed out, as if it weren’t obvious to begin with, no reasonable reader, upon reflection, would mistake Novak’s Facebook page for that of the Parma Police Department. The boundaries of free speech do not depend on what the most credulous among us believe to be true. And isn’t the point of parody to convince you that something ridiculous is serious, at least until you figure out that it’s not on the level?
The Onion’s Supreme Court brief is highly entertaining. Besides defending freedom of speech, it mocks the legal jargon and Latinisms lawyers and judges employ and suggests they are no substitute for prudential analysis. The filing refers to members of the federal judiciary as “total Latin dorks.” But that may not go very far in convincing the justices to consider the case. The Court’s term that ended in June was quite contentious, and the justices have been sniping at each other ever since. They’re probably not much fun to be around. And they take their jobs seriously.
Novak’s humor might be crude, but that’s not the legal standard. The suggestion that he actually disrupted the police functions, which the prosecution evidently failed to prove at his trial, is absurd. He had every right to post what he did, and we hope the Supreme Court says so.
 Novak v. City of Parma, Docket No. 22-293. (U.S. Supreme Court).  Ohio Rev. Code § 2909.04(B).  Novak v. City of Parma, 33 F.4th 296 (6th Cir. April 29, 2022).  District of Columbia v. Wesby, 138 Sup. Ct. 577, 589 (2018).  Reichle v. Howards, 566 U.S. 658, 668 (2012).