Petition for Writ of Certiorari — Anthony Novak, Petitioner v. City of Parma, Ohio, et al.

No. ______

In The

Supreme Court of the United States

ANTHONY NOVAK,

Petitioner,

v.

CITY OF PARMA, OHIO, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

PATRICK JAICOMO

Counsel of Record

CAROLINE GRACE BROTHERS

ANYA BIDWELL

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

pjaicomo@ij.org

SUBODH CHANDRA

DONALD SCREEN

THE CHANDRA LAW FIRM

1265 W. 6th St., Ste. 400

Cleveland, OH 44113

(216) 578-1700

Counsel for Petitioner

i

QUESTIONS PRESENTED

Petitioner Anthony Novak created a parody Facebook page to mock his local police department in

Parma, Ohio. Novak published six posts on the page,

deriding the department through obvious parody. For

his speech, respondents searched, seized, jailed, and

prosecuted Novak for a felony under a broadly written

Ohio law prohibiting the use of a computer to “disrupt” or “interrupt” police functions. A jury acquitted

Novak after trial.

When Novak sued for the violation of his First and

Fourth Amendment rights, the Sixth Circuit found

that there was probable cause to believe Novak’s protected speech was criminal and held, joining a growing circuit split, that the officers were entitled to qualified immunity for their violation of Novak’s rights.

The questions presented are:

1. Whether an officer is entitled to qualified immunity for arresting an individual based solely on

speech parodying the government, so long as no case

has previously held the particular speech is protected.

2. Whether the Court should reconsider the doctrine of qualified immunity.

ii

PARTIES TO THE PROCEEDING

Petitioner is plaintiff Anthony Novak. Respondents are the City of Parma, Ohio; Kevin Riley; and

Thomas Connor.

iii

RELATED PROCEEDINGS

U.S. District Court for the Northern District of Ohio:

Novak v. City of Parma,

No. 17-CV-2184 (Apr. 5, 2018; Feb. 24, 2021)

U.S. Court of Appeals for the Sixth Circuit:

Novak v. City of Parma,

No. 18-3373 (July 29, 2019)

Novak v. City of Parma,

No. 21-3290 (April 29, 2022)

iv

TABLE OF CONTENTS

Page

Petition for a Writ of Certiorari................................. 1

Opinions Below .......................................................... 3

Jurisdiction................................................................. 3

Constitutional and Statutory Provisions Involved ... 3

Statement ................................................................... 4

I. Police search, arrest, jail, and prosecute

Anthony Novak for making fun of them

on Facebook. .................................................... 4

II. Because the facts showed that Novak’s

posts were parody, the Sixth Circuit

denied the officers qualified immunity

at the motion-to-dismiss stage. ....................... 8

III.Although the facts showed that Novak’s

posts were parody, the Sixth Circuit

granted the officers qualified immunity

at the summary-judgment stage................... 11

Reasons for Granting the Petition........................... 12

I. The circuits are split over how to

address qualified immunity when

confronted

with

obvious

First

Amendment violations. ................................. 14

A. Three

circuits

have

rejected

qualified

immunity

for

First

Amendment violations, regardless of

minor factual distinctions from

earlier cases. ............................................. 15

v

B. Three

circuits

have

granted

qualified

immunity

for

First

Amendment violations based on

minor factual distinctions from

earlier cases. ............................................. 21

C. The circuits are divided because

each side of the split follows a

different line of this Court’s cases. .......... 25

II. This case presents an important

question of federal law that this Court

should settle................................................... 27

A. The First Amendment provides

broad protections for speech. ................... 27

B. Immunities are providing an end run

around

First

Amendment

protections. ............................................... 31

III.This Court should reconsider qualified

immunity because the doctrine has no

basis in law or policy. .................................... 33

IV. This case is a good vehicle because on

certiorari the Court need only apply the

law and resolve the split. .............................. 36

Conclusion ................................................................ 36

vi

TABLE OF APPENDICES

APPENDIX A:

Opinion of the United States Court of Appeals for the Sixth Circuit, Filed April 29,

2022 ..................................................................... 1a

APPENDIX B:

Opinion and Order of the United States

District Court for the Northern District of

Ohio, Filed February 24, 2021 ......................... 27a

APPENDIX C:

Opinion of the United States Court of Appeals for the Sixth Circuit, Filed July 29,

2019 ................................................................... 80a

APPENDIX D:

Opinion and Order of the United States

District Court for the Northern District of

Ohio, Filed April 5, 2018 ................................ 113a

APPENDIX E:

Screenshots of Parody Facebook Posts .......... 139a

vii

TABLE OF AUTHORITIES

CASES

Page

Anderson v. Creighton,

483 U.S. 635 (1987)............................................. 34

Ashaheed v. Currington,

7 F.4th 1236 (10th Cir. 2021) ............................. 21

Ballentine v. Tucker,

28 F.4th 54 (9th Cir. 2022) ........................... 15, 20

Baumgartner v. United States,

322 U.S. 665 (1944)............................................. 27

Baxter v. Bracey,

140 S. Ct. 1862 (2020)......................................... 35

Browder v. City of Albuquerque,

787 F.3d 1076 (10th Cir. 2015)........................... 21

Campbell v. Acuff-Rose Music, Inc.

510 U.S. 569 (1994)............................................. 12

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942)............................................. 17

City of Houston v. Hill,

482 U.S. 451 (1987)...................................... passim

Cohen v. California,

403 U.S. 15 (1971)..................................... 7, 27, 28

Crawford-El v. Britton,

523 U.S. 574 (1998)............................................. 34

Crocker v. Beatty,

995 F.3d 1232 (11th Cir. 2021)............... 22, 24, 25

viii

Cunningham v. Blackwell,

41 F.4th 530 (6th Cir. 2022) ............................... 35

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022)......................................... 33

Egbert v. Boule,

142 S. Ct. 1793 (2022)..................................... 2, 33

Espinoza v. Montana Dep’t of Rev.,

140 S. Ct. 2246 (2020)......................................... 30

Federal Election Comm’n v. Wisconsin Right to

Life, Inc.,

551 U.S. 449 (2007)................................... 1, 25, 26

Harlow v. Fitzgerald,

457 U.S. 800 (1982)..............................2, 26, 33, 34

Hernandez v. Mesa,

140 S. Ct. 735 (2020)........................................... 33

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021)......................................... 29

Hope v. Pelzer,

536 U.S, 730 (2002)............................................. 17

Horvath v. City of Leander,

946 F.3d 787 (5th Cir. 2020)......................... 15, 16

Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Grp. of Bos.,

515 U.S. 557 (1995)............................................. 23

Imbler v. Pachtman,

424 U.S. 409 (1976)............................................. 32

Jamison v. McClendon,

476 F. Supp. 3d 386 (S.D. Miss. 2020) ............... 35

ix

Janny v. Gamez,

8 F.4th 883 (10th Cir. 2021) ............................... 21

Lozman v. City of Riviera Beach,

138 S. Ct. 1945 (2018)......................................... 10

Malley v. Briggs,

475 U.S. 335 (1986)............................................. 18

McCoy v. Alamu,

141 S. Ct. 1364 (2021)......................................... 15

McCoy v. Alamu,

950 F.3d 226 (5th Cir. 2020)............................... 15

Miami Herald Publ’g Co. v. Tornillo,

418 U.S. 241 (1974)............................................. 23

Mitchell v. Forsyth,

472 U.S. 511 (1985)............................................... 8

Monell v. Department of Soc. Servs.,

436 U.S. 658 (1978)................................. 12, 31, 32

Morrow v. Meachum,

917 F.3d 870 (5th Cir. 2019)............................... 35

Myers v. Anderson,

238 U.S. 368 (1915)............................................. 33

Ness v. City of Bloomington,

11 F.4th 914 (8th Cir. 2021) ......................... 22, 24

New York Times Co. v. Sullivan,

376 U.S. 254 (1964)............................................. 25

Nieves v. Bartlett,

139 S. Ct. 1715 (2019)................................... 10, 28

Novak v. City of Parma,

2021 WL 720458 (N.D. Ohio Feb. 24, 2021) ........ 3

x

Novak v. City of Parma,

33 F.4th 296 (6th Cir. 2022) ................................. 3

Novak v. City of Parma,

932 F.3d 421 (6th Cir. 2019)................................. 8

Pierson v. Ray,

386 U.S. 547 (1967)......................................... 2, 33

Ramirez v. Guadarrama,

142 S. Ct. 2571 (2022)......................................... 35

Reichle v. Howards,

566 U.S. 658 (2012)............................................. 10

Rodriguez v. Swartz,

899 F.3d 719 (9th Cir. 2018)............................... 35

Sause v. Bauer,

138 S. Ct. 2561 (2018)......................................... 17

Smith v. City of Cumming,

212 F.3d 1332 (11th Cir. 2000)..................... 24, 25

Speiser v. Randall,

357 U.S. 513 (1958)....................................... 25, 26

Taylor v. Riojas,

141 S. Ct. 52 (2020)................................. 15, 17, 23

Taylor v. Stevens,

946 F.3d 211 (5th Cir., 2019).............................. 15

Texas v. Johnson,

491 U.S. 397 (1989)............................................. 23

Thompson v. Cope,

900 F.3d 414 (7th Cir. 2018)............................... 35

Thompson v. Ragland,

23 F.4th 1252 (10th Cir. 2022) ..................... 15, 21

xi

United States v. Playboy Ent. Grp., Inc.,

529 U.S. 803 (2000)....................................... 23, 25

United States v. Stevens,

559 U.S. 460 (2010)............................................. 23

Villarreal v. City of Laredo,

44 F.4th 363 (5th Cir. 2022) ........................ passim

Villarreal v. City of Laredo,

No. 5:19-CV-48, 2020 WL 13517246 (S.D.

Tex. May 8, 2020).......................................... 16, 17

Wearry v. Foster,

33 F.4th 260 (5th Cir. 2022) ............................... 31

West Virginia State Bd. of Ed. v. Barnette,

319 U.S. 624 (1943)............................................. 28

Williams v. Snyder,

No. 20-1512, 2022 WL 1078226 (7th Cir.

Apr. 11, 2022) ...................................................... 21

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019)............................... 32

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017)......................................... 33

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ......................................... passim

U.S. Const. amend. IV ...................................... passim

STATUTES

28 U.S.C. 1254(1) ....................................................... 3

42 U.S.C. 1983 ................................................... passim

xii

Hous., Tex. Ord. § 34-11(a) (1984) ........................... 29

Ku Klux Klan Act, ch. 22, 17 Stat. 13 (1871) .......... 34

Ohio Rev. Code § 2909.04(B) (2004) ................ 4, 7, 29

Texas Penal Code § 39.06(c) (2017) ................... 16, 22

OTHER AUTHORITIES

Alexander A. Reinert, Qualified Immunity’s

Flawed Foundation, 111 Calif. L. Rev. ___

(2022) ................................................................... 34

James E. Pfander, Zones of Discretion at

Common Law, 116 Nw. L. Rev. Online 148

(2021) ................................................................... 34

Joanna C. Schwartz, Qualified Immunity’s

Boldest Lie, 88 U. Chi. L. Rev. 605 (2021) ......... 35

Marie Miller et al., Constitutional GPA,

“Notable Findings” (Sept. 26, 2022) ................... 35

Patrick

Jaicomo

&

Anya

Bidwell,

Recalibrating Qualified Immunity, 112 J.

Crim. L. & Criminology 105 (2022) .................... 34

Patrick Jaicomo & Anya Bidwell, Unqualified

Immunity and the Betrayal of Butz v.

Economou, 126 Dick. L. Rev. 719 (2022)............ 34

Scott A. Keller, Qualified and Absolute

Immunity at Common Law, 73 Stan. L.

Rev. 1337 (2021) ................................................. 34

William Baude, Is Qualified Immunity

Unlawful?, 106 Calif. L. Rev. 45 (2018) ............. 35

xiii

William Baude, Is Quasi-Judicial Immunity

Qualified Immunity?, 74 Stan. L. Rev.

Online 115 (2022)................................................ 34

1

PETITION FOR A WRIT OF CERTIORARI

Anthony Novak was arrested by Ohio police for

parodying them on Facebook. Although the Sixth Circuit had previously acknowledged that Novak’s mockery was the sort of government ridicule that “holds an

important place in American history and tradition,”

Pet. App. 81a, the court held below that the same

mockery supported probable cause for Novak’s arrest,

dismissing his claims under the First and Fourth

Amendments. Id. at 8a–10a. Employing an impossibly granular interpretation of “clearly established

law” in the face of obvious First Amendment violations, the court granted police qualified immunity for

violating Novak’s rights.

The First Amendment demands the courts “give

the benefit of the doubt to speech, not censorship.”

Federal Election Comm’n v. Wisconsin Right to Life,

Inc., 551 U.S. 449, 482 (2007) (opinion of Roberts,

C.J.). But qualified immunity inverts that relationship in at least three circuits. The Sixth, Eighth, and

Eleventh Circuits grant officials qualified immunity

for First Amendment violations disguised as searches

and seizures justified by probable cause under

broadly written laws. In those circuits, censorship-byarrest prevails. Three other circuits prioritize speech

over immunity. The Fifth, Ninth, and Tenth Circuits

look beyond pretext and deny qualified immunity to

officials who should have known that their actions violated the First Amendment. See Reasons, Section I,

infra.

This split is illustrated by comparing Judge

Thapar’s decision for the Sixth Circuit below and

Judge Ho’s decision for the Fifth Circuit in Villarreal

2

v. City of Laredo, 44 F.4th 363 (5th Cir. 2022). In both

cases: (1) the plaintiffs were engaged in speech protected by the First Amendment; (2) police relied on

broad interpretations of vague state statutes to arrest

the plaintiffs for the protected speech; (3) the arrests

were the result of slow and deliberate, rather than

split-second, decision making; (4) prosecutors approved the police action and prosecuted the plaintiffs;

and (5) judges warranted the arrests. Yet the Fifth

Circuit rejected the existence of probable cause and

denied the officers qualified immunity because their

actions obviously violated the First Amendment,

while the Sixth Circuit did precisely the opposite.

Compare Statement, Section III, and Reasons, Sections I(A)(i), (B)(i), infra, with Pet. App. 25a–26a.

On the interaction of qualified immunity and the

First Amendment, the circuits are split. This Court’s

guidance is needed to restore uniformity, and this

case is a good vehicle to do so.

Alternatively, the Court should grant certiorari to

reconsider the doctrine of qualified immunity. Harlow

v. Fitzgerald, 457 U.S. 800 (1982); Pierson v. Ray, 386

U.S. 547 (1967). The Court has recently proclaimed

that it must follow congressional direction in deciding

whether and how constitutional claims may proceed.

See Egbert v. Boule, 142 S. Ct. 1793 (2022). Yet

through the doctrine of qualified immunity the Court

has discarded the congressional direction given in

Section 1983: “Every person who under color of any

statute of any State subjects any other person to the

deprivation of any rights secured by the Constitution

shall be liable to the party injured.” 42 U.S.C. 1983

3

(omissions not indicated and emphases added). See

Reasons, Section III, infra.

OPINIONS BELOW

The opinion of the circuit court, Pet. App. 1a, is reported as Novak v. City of Parma, 33 F.4th 296 (6th

Cir. 2022). The opinion of the district court, Pet. App.

27a, is not reported but is available electronically as

Novak v. City of Parma, 2021 WL 720458 (N.D. Ohio

Feb. 24, 2021).

JURISDICTION

The Sixth Circuit entered its decision below on

April 29, 2022. Justice Kavanaugh granted a 60-day

extension of the period for filing this petition on June

21, 2022. Petitioner timely files this petition and invokes this Court’s jurisdiction under 28 U.S.C.

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Constitution prohibits any law “abridging the freedom of

speech, or of the press.”

*

*

*

The Fourth Amendment to the United States Constitution provides “[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not

be violated.”

*

*

*

4

Section 1983 of Title 42 of the United States Code

provides:

Every person who, under color of any statute

* * * of any State * * * subjects, or causes to

be subjected, any citizen of the United States

or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law[.]

*

*

*

Section 2909.04(B) of the Ohio Revised Code provides: “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.”

STATEMENT

I.

Police search, arrest, jail, and prosecute

Anthony Novak for making fun of them on

Facebook.

On March 1, 2016, Anthony Novak anonymously

published a Facebook page parodying the Parma,

Ohio, Police Department. Pet. App. 30a. Novak’s page

had the same name, cover photo, and profile photo as

the department’s official page, but it was designated

a “Community” page—not the “Police Station-Government Organization” designation held by the department’s real page—and it lacked the official “blue

5

checkmark” verifying it as an official page. Id. at 30a–

31a. The page also displayed the satirical slogan: “We

no crime.” Id. at 115a.

During the 12 hours the page was online, Novak

published six posts—all obvious parody. See Pet. App.

139a–141a (screenshots of available posts); Novak

C.A. Br. at 4–5. The six posts were:

•

An apology for failing to inform the public

about the armed robbery of a Subway sandwich

shop by a white man, while requesting information to “br[ing] to justice” an “African American woman” who was loitering in front of the

shop during the robbery, id. at 141a;

•

An announcement that new police officers

would be recruited based on “a 15 question

multiple choice definition test followed by a

hearing test” and “strongly encouraging minorities to not apply,” id. at 139a;

•

An “UPDATE” about a “Pedophile Reform

event” to include a “‘[n]o means no’ station

filled with puzzles and quizzes” and promising

that anyone who made it through the stations

would be “removed from the sex offender registry and accepted as an honorary police officer,”

ibid.;

•

A warning about the introduction of a new law

forbidding Parma residents “from giving ANY

HOMELESS person food, money, or shelter in

our city for 90 days,” which was intended “to

have the homeless population eventually leave

our city due to starvation,” id. at 140a;

6

•

An advertisement for a food drive to “benefit

teen abortions” at which police “will be giving

out free abortions * * * [in a van in front of a

grocery store] using an experimental technique

discovered by the Parma Police Department,”

ibid; 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. 1

Many who saw the posts thought they were funny, but

a handful of people called the department to ask about

or tattle on the parody page. Pet. App. 3a.

When police got wind of Novak’s page, they sprang

into action. Pet. App. 3a. The department posted a notice on its official page, confirming it was the real page

and warning that the fake page was being investigated. Ibid. To prevent others from spoiling the joke,

Novak copied that notice to the parody page and deleted comments calling his page fake. Ibid. But after

Respondent Officer Kevin Riley appeared on the

1 There is no screenshot of the sixth post, but it read:

PARMA: Tuesday will be our official stay inside and

catch up with the family day in Parma! The Parma Police Department has set this day to allow families to

come together in an effort to reduce future crime by

having children have well balanced communication

with their families. Anyone’s [sic] seen outside their

home from the hours of 12 pm – 9 pm will be arrested.

Thank you.

Novak C.A. Br. 5.

7

nightly news to announce a criminal investigation

into the parody page, Novak took it down. Id. at 4a.

Yet police kept investigating. Riley tasked Respondent Detective Thomas Connor with figuring out

who created the parody page. Pet. App. 4a. Connor obtained a search warrant for Facebook and discovered

that Novak was the page’s author. Ibid. Both Riley

and Connor then consulted Parma Law Director and

Prosecutor Timothy Dobeck. Dobeck and Connor

searched for a crime to fit the situation and ultimately

landed on Ohio Revised Code Section 2909.04(B), a

felony statute prohibiting the knowing “use [of] any

computer * * * to disrupt, interrupt, or impair the

functions of any police * * * operations.” Id. at 4a, 32a.

Citing 11 calls by Facebook users to a non-emergency department phone line, local police, prosecutors, and judges all concluded there was probable

cause to believe Novak’s parody posts had feloniously

disrupted police operations. 2 See Pet. App. 4a, 23a.

Officer Connor applied for and obtained an arrest

warrant for Novak and a search warrant for his apartment. Id. at 4a.

2 According to Ohio officials, “it was the fact that the calls

occurred at all * * * that grounded [the] disruption analysis.” Pet.

App. 12a. This staggeringly broad interpretation of the statute,

now blessed by the Sixth Circuit, criminalizes all manner of First

Amendment activity. See, e.g., Pet. App. 7a, 12a, 99a. Indeed, if

Paul Cohen had posted “Fuck the Police” on Twitter, rather than

wearing his “Fuck the Draft” jacket in a courthouse, Cohen v.

California, 403 U.S. 15 (1971), or if Raymond Hill had told police

to “pick on somebody your own size” on Facebook, rather than in

person, City of Houston v. Hill, 482 U.S. 451 (1987), Cohen and

Hill would be just as guilty as Novak if anyone had called the

police about their online speech.

8

Nearly a month after Novak had deleted the parody account, police arrested him, searched his apartment, seized his phone and laptop, and jailed him for

four days. Pet. App. 4a, 34a. Prosecutors then presented Novak’s case to a grand jury, which indicted

him thanks to testimony from Connor, which included

his misrepresentation that people calling the department “honest to God believed” that Novak’s page was

real. Connor admitted at deposition that none of the

callers thought that. Id. at 4a, 11a, 23a–24a.

Novak was acquitted at trial. Pet. App. 3a, 4a. Out

from under that process, Novak sued Riley, Connor,

and the City of Parma for violating his First and

Fourth Amendment rights. 3 Id. at 85a. Riley and Connor asserted qualified immunity and moved to dismiss the claims against them, but the district court

denied the officers’ motion. Id. at 138a. As permitted

by Mitchell v. Forsyth, 472 U.S. 511 (1985), the officers filed an interlocutory appeal. Id. at 85a.

II.

Because the facts showed that Novak’s

posts were parody, the Sixth Circuit denied the officers qualified immunity at

the motion-to-dismiss stage.

The Sixth Circuit affirmed the denial of qualified

immunity. Pet. App. 80a; Novak v. City of Parma, 932

F.3d 421 (6th Cir. 2019). The court questioned

whether protected speech could serve as the basis for

probable cause and held that a reasonable jury could

find that Novak’s page was parody. More facts were

3 Novak’s operative complaint contained additional claims

that are not relevant to the questions presented in this petition.

9

needed to decide whether the officers could justify

their actions. Id. at 92a–95a.

In the court’s opinion, Judge Thapar observed that

the right to ridicule the government through parody

is as American as “[a]pple pie[ and] baseball.” Pet.

App. 81a. Offensive or funny, “when it comes to parody, the law requires a reasonable reader standard,

not a ‘most gullible person on Facebook’ standard.” Id.

at 81a–82a. And crucial to Novak’s claims, “the genius

of parody is that it comes close enough to reality to

spark a moment of doubt in the reader’s mind before

she realizes the joke.” Id. at 88a–89a. Thus, “there is

no reason to require parody to state the obvious (or

even the reasonably perceived)” because parody’s

“safe haven under the First Amendment” does not depend on whether it “spoil[s] its own punchline by declaring itself a parody.” Id. at 89a, 90a. “Imagine,”

Judge Thapar offered, “if The Onion were required to

disclaim that parodical headlines * * * are, in reality,

false.” Id. at 89a–90a. Thus, the Sixth Circuit concluded that whether Novak’s page was parody presented a question of fact for a jury. Id. at 91a.

The court also explained that the existence of probable cause presented questions of fact for the same

reasons. Pet. App. 91a–92a. Even so, the court noted

“there is good reason to believe” that probable cause

is irrelevant in cases like Novak’s, where protected

speech is the sole basis for police action. Id. at 96a–

99a. Unlike earlier Supreme Court cases addressing

the relationship of probable cause and protected

speech, Judge Thapar explained there was no nonspeech conduct here: “Novak did not create a Facebook page criticizing police and use his computer to

10

hack into police servers to disrupt operations.” Id. at

96a–98a.

The Sixth Circuit further announced that Novak’s

case “is prime ground” for the concern—discussed in

Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019); Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1953

(2018); and Reichle v. Howards, 566 U.S. 658, 663

(2012)—that police have the power to “use probable

cause as a pretext for retaliation.” Pet. App. 98a–99a.

And that concern is heightened here, where vague

and broad laws like the Ohio disruption statute

“give[] the police cover to retaliate against all kinds of

speech under the banner of probable cause.” Id. at

99a. Thus, Judge Thapar concluded, “this case raises

new questions” about the interaction of protected

speech and probable cause. Id. 99a–100a.

Novak’s case was remanded to the district court.

After discovery, the parties moved for summary judgment with the officers again asserting qualified immunity and the city disclaiming municipal liability.

This time, the district court granted the officers immunity and held that Parma had no liability. Pet.

App. 47a–79a. Stating that “the Supreme Court has

never recognized a First Amendment right to be free

from retaliatory arrest that is supported by probable

cause,” id. at 50a, the district court held that the officers could arrest Novak without addressing whether

Novak’s posts were constitutionally protected. Ibid. In

other words, “Novak’s First Amendment claim,

though significant in a general sense, is irrelevant to

this Court’s determination on the motions for summary judgment.” Ibid.

11

III.

Although the facts showed that Novak’s

posts were parody, the Sixth Circuit

granted the officers qualified immunity at

the summary-judgment stage.

When Novak’s case returned to the Sixth Circuit,

the court issued a very different opinion than its first.

In the second opinion, also written by Judge Thapar,

the court held that, although the facts continued to

support the finding that Novak’s posts were parody,

the Court granted the officers qualified immunity because it was not clearly established by an earlier decision that Novak’s deletion of comments and copying

of the department’s notice onto his page were protected speech. Pet. App. 8a–10a.

Judge Thapar again acknowledged that protected

speech cannot serve as “the sole basis for probable

cause” and that “[w]hether Novak’s satirical posts

were protected parody is a question of fact.” Pet App.

at 7a–8a. But though the court declared in its earlier

decision that parody’s “genius” is its resemblance to

reality and that it need not “spoil its own punchline

by declaring itself a parody,” id. at 88a–89a, this time,

the court questioned whether Novak’s “model[ing] his

page after the Department’s,” “delet[ing] comments

that let on his page wasn’t the official one,” and “copying the Department’s clarification post word for

word” were protected under the First Amendment. Id.

at 8a–9a (cleaned up). The court acknowledged that

whether those actions are protected speech is a “difficult question.” Id. at 9a. But it added that “while probable cause here may be difficult, qualified immunity

is not” because “Novak has not identified a case that

clearly establishes deleting comments or copying the

12

official warning is protected speech.” Ibid. Under the

disruption statute, “the officers could reasonably believe that some of Novak’s Facebook activity was not

parody, not protected, and fair grounds for probable

cause.” 4 Ibid. Accordingly, the Sixth Circuit granted

the officers immunity, rejected Monell liability for the

city, and dismissed all of Novak’s claims. Id. at 10a,

17a–21a.

REASONS FOR GRANTING THE PETITION

If the First Amendment means anything, it surely

means that an individual can mock the government

without fear of arrest. See Pet. App. 90a–91a (Thapar,

J.). Yet that is exactly what happened here: Anthony

Novak was arrested and jailed for mocking his local

police department on Facebook. “If that is not an obvious violation of the Constitution, it’s hard to imagine what would be. And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution.” Villarreal, 44 F.4th at 367 (Ho, J.).

4 In a footnote, the court justified the shift between its opin-

ions by explaining it was “no longer limited to Novak’s complaint.” Pet. App. 8a n.1. But the facts on which the court based

its qualified immunity analysis in the decision below—modeling

the page after the department’s, deleting comments calling the

parody fake, and copying the department’s warning—were all in

Novak’s complaint and addressed in the court’s earlier motionto-dismiss opinion. Id. at 82a–83a. They also describe protected

speech. As the Sixth Circuit had previously acknowledged,

“[p]arody serves its goals whether labeled or not, and there is no

reason to require parody to state the obvious.” Pet. App. 89a

(quoting Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 583

n.17 (1994)). See also Reasons, Section I(B)(i), infra.

13

Despite the obviousness of the First Amendment

violations in Novak’s case, the Sixth Circuit found

that police had probable cause for his arrest and

granted them qualified immunity. It did so because

Novak could not produce a case holding that every

specific aspect of his speech (i.e., deleting comments

and reposting the department’s notice) was protected.

Based on similar facts and arguments, the Fifth Circuit rejected immunity and probable cause. It did not

matter that the plaintiff could not cite a case addressing the specific aspects of her speech. Villarreal, 44

F.4th at 370–371.

The circuits are split over what to do with qualified

immunity when probable cause rests on speech.

Should protected speech yield to probable cause, or

should probable cause yield to protected speech? Outside the qualified-immunity context, the answer is

clear: “The Constitution does not allow such speech to

be made a crime.” City of Houston v. Hill, 482 U.S.

451, 462 (1987). But when qualified immunity is asserted, several circuits, like the Sixth, elevate the policies underlying qualified immunity above the policies

underlying the First Amendment and permit individuals to be punished for their speech. This Court

should grant certiorari to resolve the circuit split over

this issue. Alternatively, the Court should reconsider

entirely the doctrine of qualified immunity.

This case presents these issues cleanly, highlighting the sorts of First Amendment violations that can

be accomplished under the cover of qualified immunity. And the remarkable similarities between the

Sixth Circuit’s decision below and the Fifth Circuit’s

decision reaching the opposite outcome in Villarreal

14

make for an easy comparison of the competing legal

arguments.

I.

The circuits are split over how to address

qualified immunity when confronted with

obvious First Amendment violations.

Had Novak posted his Facebook parody while sitting at a computer in Texas rather than Ohio, the

Fifth Circuit would have denied qualified immunity

to the police who arrested Novak for his speech. See

Villarreal, 44 F.4th at 370–373. That’s because the

circuits are divided over how qualified immunity interacts with the First Amendment.

The Fifth, Ninth, and Tenth Circuits hold that

general First Amendment principles provide government officials fair warning that they cannot punish

individuals for exercising their speech rights. In those

circuits, protected speech cannot provide the sole basis for probable cause, and a plaintiff need not identify

an earlier decision addressing the specific speech at

issue. The Sixth, Eighth, and Eleventh Circuits hold,

on the other hand, that probable cause from broad interpretations of vague criminal statutes supports

qualified immunity and renders the First Amendment irrelevant unless an earlier case clearly establishes that the specific speech at issue is protected. As

a result, police in those circuits may arrest and jail

someone for criticizing the government, and they cannot be sued for doing so.

15

A. Three circuits have rejected qualified

immunity for First Amendment violations, regardless of minor factual distinctions from earlier cases.

The Fifth, Ninth, and Tenth Circuits have all held

that qualified immunity does not shield government

officials who violate obvious—though general—First

Amendment principles, regardless of probable cause.

In these circuits, there is no need to find an earlier

case clearly establishing that the particular speech at

issue is protected. See Villarreal, supra; Ballentine v.

Tucker, 28 F.4th 54 (9th Cir. 2022); Thompson v.

Ragland, 23 F.4th 1252 (10th Cir. 2022).

i.

The Fifth Circuit denied qualified

immunity in a case just like Novak’s.

Taking seriously this Court’s summary reversal of

its decisions in Taylor v. Stevens and McCoy v. Alamu, 5 the Fifth Circuit recently issued Villarreal v.

City of Laredo. There, the court held that, when an

arrest under a broadly written criminal law constitutes an obvious First Amendment violation, a lack of

factually similar precedent cannot support a finding

of probable cause or a grant of qualified immunity.

“For ‘[w]hen it comes to the First Amendment, . . . we

are concerned about government chilling the citizen—

not the other way around.’” 44 F.4th at 372 (citing

Horvath v. City of Leander, 946 F.3d 787, 802 (5th Cir.

5 Taylor v. Stevens, 946 F.3d 211 (5th Cir., 2019), rev’d sub

nom. Taylor v. Riojas, 141 S. Ct. 52 (2020) (per curiam); McCoy

v. Alamu, 950 F.3d 226 (5th Cir. 2020), rev’d, 141 S. Ct. 1364

(2021) (mem.).

16

2020) (Ho, J., concurring in the judgment in part and

dissenting in part)). Villarreal is strikingly similar to

this case, but the outcomes reached by the Fifth and

Sixth Circuits could not be more different.

1. In Villarreal, a citizen journalist with a large

Facebook following and a history of being a thorn in

the side of local law enforcement was arrested for asking a police officer questions. 44 F.4th at 368–369. In

the spring of 2017, Villarreal twice contacted a Laredo, Texas, police officer to confirm the names of people who had died in local incidents before publishing

stories online. Id. at 368. Six months later, police

sought arrest warrants for Villarreal, citing violations

of Texas Penal Code § 39.06(c), which provides that

“[a] person commits an offense if, with intent to obtain

a benefit * * * he solicits or receives from a public servant information that: (1) the public servant has access

to by means of his office or employment; and (2) has

not been made public.” Ibid. A prosecutor and magistrate judge approved the warrants, and Villarreal

turned herself in. She was jailed before a Texas court

ultimately granted her habeas corpus, finding the

statute unconstitutionally vague. Id. at 368–369.

2. Villarreal sued the officers for violating her

First and Fourth Amendment rights. The officers asserted qualified immunity and moved to dismiss the

claims against them. The district court granted the

officers’ immunity, holding, like the Sixth Circuit below, that, despite its broad language, the Texas statute provided probable cause for Villarreal’s arrest and

that no precedent clearly established that the law was

“so patently or obviously unconstitutional that no reasonable law enforcement officer could have believed

17

that their enforcement of the statute against the

Plaintiff was constitutional.” Villarreal v. City of Laredo, No. 5:19-CV-48, 2020 WL 13517246, at *14 (S.D.

Tex. May 8, 2020).

3. The Fifth Circuit reversed. In a 2-1 opinion written by Judge Ho, the Court invoked the obviousness

exception to qualified immunity’s clearly established

test. Villarreal, 44 F.4th at 370–371 (citing Hope v.

Pelzer, 536 U.S. 730, 740 (2002); Taylor v. Riojas, 141

S. Ct. 52, 52 (2020) (per curiam); Sause v. Bauer, 138

S. Ct. 2561 (2018) (per curiam)). The Court observed

that since “freedom of speech * * * includes the right

to curse at a public official, then it surely includes the

right to politely ask that official a few questions as

well.” Id. at 371 (citing, among others, Chaplinsky v.

New Hampshire, 315 U.S. 568, 569 (1942)). Relying

on this and other general First Amendment principles, the Court held that “it should be patently obvious to any reasonable police officer that the conduct

alleged in the complaint constitutes a blatant violation of Villarreal’s constitutional rights. And that

should be enough to defeat qualified immunity.” Ibid.

After all, “[t]he doctrine of qualified immunity does

not always require the plaintiff to cite binding case

law involving identical facts” when general constitutional rules apply with “obvious clarity.” Villarreal, 44

F.4th at 370, 371.

The Fifth Circuit was unmoved by the officers’ argument that they were simply enforcing a statute.

And while the Court found that the Texas statute was

not facially unconstitutional, its application to Villarreal was: “It should be obvious to any reasonable police officer that locking up a journalist for asking a

18

question violates the First Amendment.” Villarreal,

44 F.4th at 373.

On the related Fourth Amendment claims, the

Fifth Circuit explained, like the Sixth Circuit below,

that protected speech cannot support probable cause.

Villarreal, 44 F.4th at 375 (citation omitted). But unlike the Sixth Circuit, the Fifth Circuit concluded

that, “[j]ust as the First Amendment violation * * *

was obvious for purposes of qualified immunity, so too

was the Fourth Amendment violation alleged here.”

Ibid. It made no difference, Judge Ho explained, that

the officers’ probable cause determinations were approved by a prosecutor or a judge. Because the constitutional infirmity was obvious, it was also “obvious

that no reasonably competent officer would have concluded that a warrant should issue.” Ibid. (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)).

4. Chief Judge Richman dissented. Accusing the

majority of confusing the bench and bar about which

First Amendment violations are obvious enough to defeat qualified immunity, Judge Richman made the

same arguments as the Sixth Circuit below. Indeed,

Judge Richman’s dissent can be summarized using

quotes from the Sixth Circuit’s decision, changing

only the relevant names and facts:

According to Judge Richman, “the officers reasonably believed they were acting within the law,” Pet.

App. 3a (Villarreal at 388), and “qualified immunity

protects officers who reasonably pick one side or the

other in a debate where judges could reasonably disagree,” Pet. App. 9a (cleaned up) (Villarreal at 383).

Because Villarreal’s actions fell within the broad language of the Texas statute, Pet. App. 7a (Villarreal at

19

386–388), “[t]hat’s just what the officers did—they

reasonably found probable cause in an unsettled case

that judges can debate,” Pet. App. 9a (Villarreal at

383, 389). “What’s more, the officers had good reason

to believe they had probable cause. Both the [district

attorney] and the judge[] who issued the warrants

agreed with them. Reassurance from * * * other officials,” Judge Richman contended, “further supports

finding that the officers ‘reasonably’ * * * concluded

that probable cause existed.” Pet. App. 10a (Villarreal

at 390–391). “That’s enough to shield [the officers]

from liability.” Pet. App. 10a (Villarreal at 391). After

all, “[Villarreal] has not identified a case that clearly

establishes [that her requests for information from

police were protected speech].” Pet. App. 9a (Villarreal at 390).

5. Judge Ho separately concurred to address Judge

Richman’s dissent. Beginning from the proposition

that “no statute may be enforced that violates the

Constitution,” Judge Ho argued that, “[l]ikewise, no

officer of the law may hide behind an obviously unconstitutional statute to justify trampling on a citizen’s

fundamental liberties.” Villarreal, 44 F.4th at 379.

And although the Fifth Circuit chose constitutional

avoidance to construe the Texas statute in a way that

was not facially unconstitutional, Judge Richman’s

less forgiving interpretation of the law to criminalize

Villarreal’s speech would mean “it is a crime to be a

journalist in Texas.” Id. at 380.

On this point, Judge Ho clarified that, under the

court’s opinion, the statute should be construed in a

way that does not prohibit protected speech, but, if it

cannot be, the statute is obviously unconstitutional.

20

And he rejected the argument that the independent

intermediary doctrine insulated the officers from accountability: “[T]he dissent argues that, just as we

can’t question the officers because a magistrate issued

a warrant, we likewise can’t question the officers because a federal district court granted them qualified

immunity.” Villarreal, 44 F.4th at 381. But, Judge Ho

explained, the district court, the judge who signed the

warrant, and the officers were all wrong: “We don’t

just ask—we require—every member of law enforcement to avoid violations of our Constitution. * * * And

when the violation is as obvious as it is here, we don’t

grant qualified immunity.” Ibid.

ii.

The Ninth and Tenth Circuits, like

the Fifth, deny qualified immunity

for obvious constitutional violations.

The Fifth Circuit’s decision rejecting qualified immunity for obvious First Amendment violations joins

similar decisions in the Ninth and Tenth Circuits. 6 In

Ballentine v. Tucker, the Ninth Circuit denied qualified immunity to a detective for his arrest of local activists for chalking anti-police messages on sidewalks.

28 F.4th at 58–59. Notwithstanding factual distinctions from earlier cases, the court held that a “right

can be clearly established despite a lack of factually

analogous preexisting case law, and officers can be on

notice that their conduct is unlawful even in novel factual circumstances.” Id. at 66 (citations omitted).

6 Although similar principles are at play, the cited Tenth Cir-

cuit opinions do not address probable cause because they do not

involve arrests.

21

And in Thompson v. Ragland, the Tenth Circuit

denied qualified immunity to a college administrator

who punished a student for emailing her classmates

to criticize a professor. It did not matter that the

Tenth Circuit could not “point to a precedent with

identical facts.” 7 23 F.4th at 1260. Thompson explained that, although “not every detail of First

Amendment law governing student speech is (or ever

will be) settled,” a great deal is and “in any given case

the unsettled contours of the law may be irrelevant.” 8

Ibid. Accord Williams v. Snyder, No. 20-1512, 2022

WL 1078226 (7th Cir. Apr. 11, 2022) (denying qualified immunity to a prison guard who confiscated inmate mail).

B. Three circuits have granted qualified

immunity for First Amendment violations based on minor factual distinctions from earlier cases.

On the other side of the split, the Sixth Circuit is

joined by the Eighth and Eleventh Circuits. In these

circuits, even when laws are broadly written, a lack of

earlier caselaw involving identical circumstances

7 See also Browder v. City of Albuquerque, 787 F.3d 1076,

1082–1083 (10th Cir. 2015) (Gorsuch, J.) (“[S]ome things are so

obviously unlawful that they don’t require detailed explanation

and sometimes the most obviously unlawful things happen so

rarely that a case on point is itself an unusual thing.”).

8 See also Janny v. Gamez, 8 F.4th 883, 915 (10th Cir. 2021)

(holding that a “minor distinction [from earlier caselaw] cannot

prevent a determination that the law was clearly established” by

general First Amendment principles); Ashaheed v. Currington, 7

F.4th 1236, 1248–1249 (10th Cir. 2021) (holding that broad “free

exercise law precepts were not too general to provide fair warning to a reasonable officer”).

22

results in qualified immunity for First Amendment

violations. See Ness v. City of Bloomington, 11 F.4th

914 (8th Cir. 2021); Crocker v. Beatty, 995 F.3d 1232

(11th Cir. 2021).

i.

The Sixth Circuit’s decision below is

indistinguishable from Judge Richman’s dissent in Villarreal.

Judge Thapar’s decision for the Sixth Circuit below is a photo negative of Judge Ho’s decision for the

Fifth Circuit in Villarreal. Indeed, as shown above,

the decision below is substantively identical to Judge

Richman’s dissent in Villarreal. And, like Judge Richman’s dissent, the Sixth Circuit’s core holding is that,

while some of Novak’s speech was unquestionably

protected, additional acts of speech he used to support

his parody—deleting comments and reposting the notice—were not clearly established as protected

speech. Compare Pet. App. 9a (“Novak has not identified a case that clearly establishes deleting comments

or copying the official warning is protected speech.”),

with Villarreal, 44 F.4th at 390 (Richman, J., dissenting) (“There was no clearly established law that there

was no probable cause for arresting Villar[r]eal, and

there was no clearly established law that in arresting

Villar[r]eal based on section 39.06, the defendants

were violating her First Amendment rights.”). In both

cases, the basis for probable cause was pure speech—

Novak parodying police and Villarreal asking them

questions.

Although the Sixth Circuit found “it’s possible” Novak’s deletion of comments and copying the department’s notice is not protected speech, it did not

23

question whether those expressive acts are speech at

all. Pet. App. 8a n.1 (emphasis added). They clearly

are. See Texas v. Johnson, 491 U.S. 397, 404–405

(1989) (broadly defining speech as any act to convey a

message). They are also clearly protected. Indeed, all

speech is presumptively protected by the First

Amendment outside of extremely limited categories

that do not apply here. See United States v. Playboy

Ent. Grp., Inc., 529 U.S. 803, 818 (2000) (“It is rare

that a regulation restricting speech because of its content will ever be permissible.”); United States v. Stevens, 559 U.S. 460, 468–469 (2010). And the Sixth Circuit’s earlier discussion of parody makes clear that

Novak’s acts were undertaken for the expressive purpose of serving his parody. See Pet. App. 3a, 8a n.1. If

deciding who can walk in your parade or what arguments are fit to print in your newspaper are speech,

deciding who can respond to your Facebook posts is

too. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Grp. of Bos., 515 U.S. 557, 570, 573–574 (1995) (parades); Miami Herald Publ’g Co. v. Tornillo, 418 U.S.

241, 258 (1974) (editorials). The Sixth Circuit’s holding rests on its approval of punishment for pure

speech exclusively because there is no caselaw addressing the particular types of speech Novak engaged in. Contra Taylor, 141 S. Ct. at 53–54.

ii.

The Eighth and Eleventh Circuits

join the Sixth in allowing qualified

immunity to swallow the First

Amendment.

Like Judge Richman and the Sixth Circuit, the

Eighth and Eleventh Circuits allow probable cause

provided by broad interpretations of vaguely written

24

laws to supply qualified immunity for First Amendment violations. In Ness, for instance, the Eighth Circuit granted qualified immunity to police who threatened a gadfly with arrest under a harassment statute

for filming and taking photographs at a public park.

Ness granted the officers immunity because, though

constitutionally suspect, the flaws in the statute were

not so gross or flagrant that “no reasonable police officer could have believed that it was constitutional.”

11 F.4th at 921. Besides, the Eighth Circuit explained, “[t]he reliance on a state statute that has not

been declared unconstitutional is generally a paradigmatic example of reasonableness that entitles an officer to qualified immunity.” Ibid. (citations omitted).

And in Crocker, the Eleventh Circuit granted qualified immunity to a police officer for seizing a man’s

phone for photographing a traffic accident from a public median and arresting him when he refused to leave

the scene. Although the Eleventh Circuit agreed its

earlier caselaw established a First Amendment right

to photograph police conduct from public property,

995 F.3d at 1240 (citing Smith v. City of Cumming,

212 F.3d 1332, 1333 (11th Cir. 2000)), the court held

that Smith’s “broad statement of [First Amendment]

principle” could not overcome qualified immunity.

Crocker, 995 F.3d at 1240–1241. It was not “obvious”

that the general rule applied “to the specific situation”

because the opinion announcing the rule provided a

“dearth of detail about the contours of the right.” Id.

at 1241.

Judge Martin dissented from Crocker, arguing

that the majority “parse[d] this critical right too narrowly” and explaining, like Judge Ho in Villarreal,

25

that the “broad pronouncement” of First Amendment

principles in Smith “underscores the right’s general

applicability.” Crocker, 995 F.3d at 1260–1261 (Martin, J., dissenting in part). See also id. at 1260 (adding

that the general statement from Smith does not “require * * * precise definition” for it to be easily understood and followed).

C. The circuits are divided because each

side of the split follows a different line

of this Court’s cases.

The first question presented in this case arises

from a conflict between two doctrines of this Court

that are each concerned with over-deterring rightful

behavior: free speech and qualified immunity.

In the free-speech context, the Court has repeatedly cautioned that conflicts between speech and

other concerns should be resolved in favor of speech.

See, e.g., New York Times Co. v. Sullivan, 376 U.S.

254, 271–272 (1964) (explaining that “freedoms of expression [must] have breathing space * * * to survive”)

(cleaned up); Hill, 482 U.S. at 462–463. As Speiser v.

Randall noted, “the line between speech unconditionally guaranteed and speech which may legitimately

be * * * punished is finely drawn.” 357 U.S. 513, 525

(1958). And “[e]rror in marking that line exacts an extraordinary cost” because it deters protected speech.

Playboy, 529 U.S. at 817. For this reason, “[w]hen

First Amendment compliance is the point to be

proved, the risk of nonpersuasion * * * must rest with

the Government, not with the citizen.” Id. at 818.

That core insight runs through this Court’s First

Amendment jurisprudence. See, e.g., Wisconsin Right

26

to Life, Inc., 551 U.S. at 482 (opinion of Roberts, C.J.).

Otherwise, protected speech will be chilled. Speiser,

357 U.S. at 526.

Fear of overdeterrence is the same concern that

animates qualified immunity. Because civil rights litigation may “diver[t] official energy from pressing

public issues” or “dampen the ardor of all but the most

resolute * * * in the unflinching discharge of their duties,” the Court created qualified immunity to avoid

those policy concerns. Harlow, 457 U.S. at 813–819.

But see Reasons, Section III, infra.

In the Fifth, Ninth, and Tenth Circuits, First

Amendment jurisprudence trumps qualified immunity. Those courts ensure that individuals may speak

without needing to carefully parse the “clearly established” caselaw in their jurisdiction to ensure they

cannot be arrested for their speech with impunity.

But in the Sixth, Eighth, and Eleventh Circuits, qualified immunity jurisprudence trumps the First

Amendment. Those courts ensure, instead, that government officials have a wide berth to do their jobs,

even if that means individuals can be jailed for their

protected speech without consequence.

This circuit split requires this Court’s intervention

because only this Court can reconcile these two lines

of cases. Perhaps qualified immunity is so important

that it overrides the Constitution’s concern for free

speech—even, as in cases like this one and the Fifth

Circuit’s, where no split-second decisions were required. Or perhaps free speech is so important that

government officials should pause before arresting

someone for their speech and speakers should rest

easy that they cannot be arrested without recourse,

27

since the prospect of being subjected to a home search,

property seizure, arrest, and a night or two in jail

(even if none of those lead to a conviction) would

surely deter many Americans from speaking their

minds. Either way, only this Court can decide

whether speech or government action is more important.

II.

This case presents an important question

of federal law that this Court should settle.

The question over which the circuits are split effectively dictates whether, thanks to qualified immunity, protected speech can provide the basis for

punishment in the United States. In an era when

much of our political discourse takes place on social

media and crosses jurisdictional boundaries, it is untenable for different jurisdictions to have different

free-speech rules. If The Onion wants to publish a parody logo of the Uvalde, Texas, police, it can do so without risking the arrest of its writers. But if it wants to

publish a parody logo of the East Cleveland, Ohio, police, it is on shakier ground, and the wiser decision

might be not to publish at all. Only this Court can resolve this fundamental dilemma.

A. The First Amendment provides broad

protections for speech.

This case exemplifies the importance of the First

Amendment’s broad protections. “One of the prerogatives of American citizenship is the right to criticize

public men and measures.” Baumgartner v. United

States, 322 U.S. 665, 673–674 (1944). See also Cohen

28

v. California, 403 U.S. 15, 18 (1973); West Virginia

State Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943).

In line with that concept, this Court has “repeatedly

invalidated laws that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them.” Hill, 482 U.S. at 465;

id. at 465 n.15 (listing examples). Hill rejected the enforcement of a Houston law prohibiting speech that

“interrupt[s]” police. 482 U.S. at 462–463. To the contrary, “[t]he freedom of individuals * * * to oppose or

challenge police action without thereby risking arrest

is one of the principal characteristics by which we distinguish a free nation from a police state.” 9 Ibid.

And this Court has explained the unique significance of parody. Hustler Magazine, Inc. v. Falwell,

485 U.S. 46, 54–55 (1988). “[F]rom the early cartoon

portraying George Washington as an ass down to the

present day, graphic depictions and satirical cartoons

have played a prominent role in public and political

debate.” Id. at 54. “From the viewpoint of history it is

clear that our political discourse would have been considerably poorer without” parodies like Novak’s. Id. at

55.

Through its decision below, the Sixth Circuit employed qualified immunity to circumvent these

9 See also Nieves, 139 S. Ct. at 1730 (Gorsuch, J., concurring

in part) (“If the state could use these laws not for their intended

purposes but to silence those who voice unpopular ideas, little

would be left of our First Amendment liberties, and little would

separate us from the tyrannies of the past or the malignant fiefdoms of our own age.”); id. at 1736 (Sotomayor, J., dissenting)

(“[S]ome arrests are demonstrably retaliation for protected

speech, notwithstanding probable cause of some coincidental infraction.”).

29

foundational First Amendment principles in a way

that will chill parody and speech critical of the government. 10 Never mind that the Ohio disruption law

sweeps far beyond and with greater force than the

Houston interruption law at issue in Hill 11 or that Novak’s arrest and incarceration resulted from substantial planning and deliberation, rather than split-second decision-making. 12

And never mind that Harper’s Weekly cartoonist

Thomas Nast could publish cartoons in support of virulently anti-Catholic Representative James Blaine

depicting “Catholic priests as crocodiles slithering

10 The court did so despite recognizing that, unlike many of

the thornier cases this Court has addressed, Novak’s involved a

situation where “the sole basis for probable cause was speech.”

Pet. App. 96a–97a (outlining the mixture of speech and conduct

at issue in earlier cases, where probable cause outweighed

speech claims). But see Pet. App. 8a n.1.

11 Compare Hous., Tex. Ord. § 34-11(a) (1984) (making it a

misdemeanor for “any person to assault, strike or in any manner

oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an

arrest”), with Ohio Rev. Code § 2909.04(B) (2004) (making it a

felony for any person to “knowingly use any computer * * * to

disrupt, interrupt, or impair the functions of any police * * * operations”).

12 Accord Hoggard v. Rhodes, 141 S. Ct. 2421, 2422 (2021)

(mem.) (Thomas, J., respecting denial of certiorari) (“But why

should university officers, who have time to make calculated

choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a splitsecond decision to use force in a dangerous setting?”); Villarreal,

44 F.4th at 371 (“There is a big difference between split-second

decisions by police officers and premeditated plans to arrest a

person for her [speech], especially by local officials who have a

history of targeting her because of her [speech].” (citation and

quotation marks omitted)).

30

hungrily toward American children” without fear of

arrest:

See Espinoza v. Montana Dep’t of Rev., 140 S. Ct.

2246, 2226–2270 (2020) (Alito, J., concurring). While

Novak was arrested, jailed, and prosecuted for silly

Facebook posts making fun of his local police:

Pet. App. 139a.

Neither the Sixth Circuit nor any of the many government officials involved in Novak’s arrest or prosecution stopped to consider the obvious constitutional

defects in the process they facilitated. If more than

31

half a dozen members of the legal system, see Pet.

App. 78a, including a federal appellate court, id. at

3a, can look at obvious parody and still disregard that

constitutionally sacred speech to forgive the arrest

and prosecution of a government critic—all because

there is no factually identical case holding that the

specific conduct is unconstitutional—something has

gone terribly wrong. This Court must step in.

B. Immunities are providing an end run

around First Amendment protections.

Just as apparent as the constitutional violation in

Novak’s case is the immunity shell game being played

to ensure that, despite the clear and exceptionless

language Congress enacted in what is now Section

1983, Novak will be left without a remedy for the violation of his constitutional rights. The Sixth Circuit’s

decision exemplifies the operation of “an unholy trinity of legal doctrines—qualified immunity, absolute

prosecutorial immunity, and Monell v. Department of

Social Services of the City of New York, 436 U.S. 658

(1978)”—that “frequently conspires to turn winnable

[civil rights] claims into losing ones.” Wearry v. Foster,

33 F.4th 260, 278 (5th Cir. 2022) (Ho, J., dubitante).

Under the doctrine of qualified immunity, as applied below, Novak cannot sue the police who arrested

him in violation of his First Amendment rights for the

trivial reason that he cannot point to an earlier case

that specifically “establishes deleting comments or

copying the official warning is protected speech.” Pet.

App. 9a. Under the doctrine of prosecutorial immunity, Novak cannot sue the prosecutors who helped police plan his arrest and prosecuted him in violation of

32

the First Amendment. See Imbler v. Pachtman, 424

U.S. 409 (1976). And under Monell, as applied below,

Novak cannot sue the city. Pet. App. 17a–21a.

The result is a situation where, although the Sixth

Circuit claims its decision “does not mean [the officers’] actions were justified or should be condoned,”

they face no consequences for violating Novak’s First

and Fourth Amendment rights. Pet. App. 25a. So, Novak’s claims face a predictable fate: “No precedent =

no clearly established law = no liability. An Escherian

Stairwell. Heads government wins, tails plaintiff

loses.” Zadeh v. Robinson, 928 F.3d 457, 479–480 (5th

Cir. 2019) (Willett, J., concurring in part and dissenting in part). Thus, the Sixth Circuit felt compelled to

end its decision with a coda to excuse the injustice of

its ruling: “[I]t is cases like these when government

officials have a particular obligation to act reasonably.

Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s

and the government’s time? We have our doubts.” Pet.

App. 25a. The Sixth Circuit ended by lamenting that

“any one of the officials involved could have allowed

the entire story to turn out differently, simply by saying ‘No.’ Unfortunately, no one did.” Ibid. (citation

and internal quotation marks omitted). Not least of

all the Sixth Circuit.

This Court should grant certiorari and ensure that

Novak, and others like him, do not have rights under

the First Amendment without remedies in American

courts.

33

III.

This Court should reconsider qualified

immunity because the doctrine has no basis in law or policy.

Better yet, this Court should grant certiorari and

reconsider qualified immunity altogether. The doctrine has no basis in sound law or policy, and it is long

past time for this Court to revisit one of its most

flawed precedents: Harlow v. Fitzgerald. Because

qualified immunity perpetuates an egregious damaging error; is based on exceptionally weak reasoning;

necessitates unworkable rules; disrupts other areas of

law; and cannot support a reliance interest, it should

be reconsidered. See Dobbs v. Jackson Women’s

Health Org., 142 S. Ct. 2228, 2265–2278 (2022) (stating bases for overruling precedent).

This Court has recently and repeatedly pronounced that Congress, not the courts, should be the

primary voice in deciding whether to provide a damages remedy for constitutional violations. Egbert, 142

S. Ct. at 1803; Hernandez v. Mesa, 140 S. Ct. 735, 750

(2020); Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017).

For such violations committed under color of state

law, Congress did just that by enacting Section 1983.

But the Court has overridden congressional prerogative through Pierson v. Ray, Harlow v. Fitzgerald, and

their progeny.

In Pierson, the Court, ostensibly relying on a common-law defense tacitly incorporated into Section

1983, created a limited doctrine of good-faith immunity to constitutional claims. 386 U.S. at 555–557. But

see Myers v. Anderson, 238 U.S. 368 (1915). While

some have attempted to justify this earlier form of

34

immunity, 13 they overlook the original language of

Section 1983. Under the plain language of the Ku

Klux Klan Act, “every person” was “liable” for constitutional violations “any such law, statute, ordinance,

regulation, custom, or usage of the State to the contrary notwithstanding.” Ku Klux Klan Act, ch. 22, 17

Stat. 13 (1871) (codified as amended at 42 U.S.C.

1983) (emphasis added). The common-law justification for any form of immunity was misplaced from the

outset. 14

Even still, Harlow’s creation of qualified immunity

went far beyond that. It “completely reformulated

qualified immunity principles not at all embodied in

the common law” or the text of Section 1983. Anderson v. Creighton, 483 U.S. 635, 645 (1987) (common

law); Crawford-El v. Britton, 523 U.S. 574, 594 (1998)

(statutory text). Rather, Harlow founded the doctrine

on judicially made policy assumptions that have all

13 See Scott A. Keller, Qualified and Absolute Immunity at

Common Law, 73 Stan. L. Rev. 1337, 1360–64, 1383–84 (2021).

But see James E. Pfander, Zones of Discretion at Common Law,

116 Nw. L. Rev. Online 148 (2021) (responding to Keller); William Baude, Is Quasi-Judicial Immunity Qualified Immunity?,

74 Stan. L. Rev. Online 115 (2022) (responding to Keller).

14 See Patrick Jaicomo & Anya Bidwell, Unqualified Immunity and the Betrayal of Butz v. Economou, 126 Dick. L. Rev. 719,

730 n.66, 735 n.87 (2022) (“The statutory text shows that Congress intended to abrogate defenses or immunities from other

sources (including the common law), even if they would have otherwise been folded into Section 1983 as background law.”); Patrick Jaicomo & Anya Bidwell, Recalibrating Qualified Immunity, 112 J. Crim. L. & Criminology 105, 122 n.118 (2022) (same);

see also, generally, Alexander A. Reinert, Qualified Immunity’s

Flawed Foundation, 111 Calif. L. Rev. ___ (2022) (forthcoming)

(same).

35

been empirically disproven. 15 Qualified immunity

thus yields arbitrary and unjust results. 16 For these

reasons, the doctrine has been consistently criticized

by scholars 17 and jurists, 18 including members of this

Court. 19

For the overwhelmingly persuasive reasons provided by the doctrine’s chorus of critics, the Court

should grant certiorari to reconsider qualified immunity altogether. But if it will not go that far, it

should at least grant certiorari to settle the circuit

split over whether an officer is entitled to qualified

immunity for arresting an individual based solely on

15 See, e.g., Joanna C. Schwartz, Qualified Immunity’s Boldest Lie, 88 U. Chi. L. Rev. 605, 673–677 (2021).

16 See, e.g., Marie Miller et al., Constitutional GPA, “Notable

Findings” (last accessed Sept. 26, 2022), https://ij.org/report/constitutional-gpa/notable-findings/ (finding that the likelihood of

overcoming qualified immunity is driven largely by circuit population “because larger circuits have more cases; more cases result in more [statements of clearly established law]; and more

[statements of clearly established law] provide more opportunities to overcome qualified immunity”).

17 See, e.g., William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45 (2018).

18 See, e.g., Cunningham v. Blackwell, 41 F.4th 530, 544–547

(6th Cir. 2022) (Donald, J., concurring in part and dissenting in

part); Morrow v. Meachum, 917 F.3d 870, 874 n.4 (5th Cir. 2019)

(Oldham, J.); Thompson v. Cope, 900 F.3d 414, 421 n.1 (7th Cir.

2018) (Hamilton, J.); Rodriguez v. Swartz, 899 F.3d 719, 732 n.40

(9th Cir. 2018) (Kleinfeld, J.). See also, generally, Jamison v.

McClendon, 476 F. Supp. 3d 386 (S.D. Miss. 2020) (Reeves, J.).

19 See, e.g., Ramirez v. Guadarrama, 142 S. Ct. 2571, 2571–

2573 (2022) (mem.) (Sotomayor, J., joined by Breyer and Kagan,

JJ., dissenting from denial of certiorari); Baxter v. Bracey, 140 S.

Ct. 1862, 1862–1865 (2020) (mem.) (Thomas, J., dissenting from

denial of certiorari).

36

speech parodying the government, so long as no case

has previously held the particular speech is protected.

IV.

This case is a good vehicle because on certiorari the Court need only apply the law

and resolve the split.

This case is a good vehicle for the Court to consider

the questions presented. There are no jurisdictional

problems, no messy fact disputes, and the issue animating the circuit split is the sole basis for the decision below. Despite being protected by the same Constitution, speakers in the Fifth, Ninth, and Tenth Circuits have robust protections from punishment for

their speech. Speakers in the Sixth, Eighth, and Eleventh do not. The only things to do on certiorari are

apply the law and resolve the split.

CONCLUSION

The Court should grant Novak’s petition.

Respectfully submitted,

PATRICK JAICOMO

SUBODH CHANDRA

Counsel of Record

DONALD SCREEN

CAROLINE GRACE BROTHERS THE CHANDRA LAW FIRM

ANYA BIDWELL

1265 W. 6th St., Ste. 400

INSTITUTE FOR JUSTICE

Cleveland, OH 44113

901 N. Glebe Rd., Ste. 900 (216) 578-1700

Arlington, VA 22203

(703) 682-9320

pjaicomo@ij.org

SEPTEMBER 26, 2022