Amicus Curiae Brief — Anthony Novak, Petitioner v. City of Parma, Ohio, et al.

No. 22-293

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

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

__________

Clark M. Neily III

Counsel of Record

Thomas A. Berry

Nicholas DeBenedetto

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

cneily@cato.org

October 28, 2022

i

QUESTION PRESENTED

Does the government get to arrest you for creating

and maintaining an online parody?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 5

I. THIS COURT SHOULD CLARIFY

THAT THE FIRST AMENDMENT

PROTECTS SOCIAL MEDIA

PARODIES ........................................................ 5

II. THIS CASE PRESENTS THE

OPPORTUNITY TO FURTHER

CLARIFY THE DISTINCTION

BETWEEN UNPROTECTED

CONDUCT AND PROTECTED

SPEECH .......................................................... 10

III.THIS CASE PRESENTS THE

OPPORTUNITY TO CLARIFY THAT

ONLINE PARODY CANNOT

PROVIDE PROBABLE CAUSE FOR

ARREST .......................................................... 14

CONCLUSION .......................................................... 19

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bachellar v. Maryland, 397 U.S. 564 (1970) ............ 14

Campbell v. Acuff-Rose Music, Inc., 510 U.S.

569 (1994) ............................................................... 16

Cantwell v. Connecticut, 310 U.S. 296 (1940) ........... 11

Cohen v. California, 403 U.S. 15 (1971).............. 11, 13

Farah v. Esquire Mag., 736 F.3d 528 (D.C.

Cir. 2013) ........................................................ passim

FCC v. Pacifica Found., 438 U.S. 726 (1978) ............. 6

Forsyth v. Nationalist Movement, 505 U.S.

123 (1991) ............................................................... 11

Golb v. AG of N.Y., 870 F.3d 89 (2d Cir. 2017) ........... 7

Holder v. Humanitarian L. Project, 561 U.S. 1

(2010) ...................................................................... 11

Hope v. Pelzer, 536 U.S. 730 (2002) .......................... 15

Hustler Mag. v. Falwell, 485 U.S. 46 (1988) . 4, 5, 6, 12

L.L. Bean v. Drake Publishers, Inc., 811 F.2d

26 (1st Cir. 1987) ...................................................... 5

Leonard v. Robinson, 477 F.3d 347 (6th Cir.

2007) ................................................................. 14, 15

Matal v. Tam, 137 S. Ct. 1744 (2017) ......................... 6

Michigan v. DeFillippo, 443 U.S. 31 (1979) .............. 15

Milkovich v. Lorain J. Co., 497 U.S. 1 (1990) ............. 7

Mink v. Knox, 613 F.3d 995 (10th Cir. 2010) .......... 8, 9

iv

Novak v. City of Parma, 33 F.4th 296 (6th Cir.

2022) ................................................................... 4, 15

Novak v. City of Parma, 932 F.3d 421 (6th

Cir. 2019) .................................................... 3, 7, 8, 16

O’Donnell v. Knott, 283 F. Supp. 3d 286 (E.D.

Pa. 2017) ............................................................. 9, 10

Packingham v. North Carolina, 137 S. Ct.

1730 (2017) ............................................................... 9

San Francisco Bay Guardian v. Superior Ct.,

21 Cal. Rptr. 2d 464 (Cal. Ct. App. 1993)................ 7

Sandul v. Larion, 119 F.3d 1250 (6th Cir.

1997) ....................................................................... 14

Swiecicki v. Delgado, 463 F.3d 489 (6th Cir.

2006) ....................................................................... 14

United States v. Alvarez, 567 U.S. 709 (2012) .......... 13

Statutes

42 U.S.C. § 1983 (1996) ............................................... 3

Ohio Rev. Code § 2909.04 (2004) ................................. 3

Other Authorities

Brief for Petitioner, Novak v. City of Parma,

33 F.4th 296 (6th Cir. 2022) (No. 21-3290) ........... 18

Eugene Volokh, Speech as Conduct, 90

Cornell L. Rev. 1277 (2005) ....................... 10, 12, 14

Jon M. Garon, Media & Monopoly in the

Information Age: Slowing the Convergence

at the Marketplace of Ideas, 17 Cardozo

Arts & Ent. L.J. 491 (1999)...................................... 7

Max Hall, Benjamin Franklin & Polly Baker:

The History of a Literary Deception (1960) ............. 8

v

Phillip Deen, What Moral Virtues Are

Required to Recognize Irony?, 50 J. Value

Inquiry 51 (2016) ...................................................... 8

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies was established in 1989 to promote the principles of limited constitutional government that are the foundation of liberty. Cato has participated as amicus curiae in numerous cases before this Court, including with briefs that

have demonstrated the absurdity of humorless speech

restrictions. See, e.g., Iancu v. Brunetti, 139 S. Ct. 2294

(2019); Matal v. Tam, 137 S. Ct. 1744 (2017); Walker

v. Texas Div., Sons of Confederate Veterans, Inc., 135

S. Ct. 2239 (2015); and Susan B. Anthony List v.

Driehaus, 134 S. Ct. 2334 (2014).

As an organization committed to protecting the

freedom of speech, including the right to parody government without fear of retaliation, amicus has a

strong interest in the proper resolution of this case.

1 Rule 37 statement: All parties were timely notified and con-

sented to the filing of this brief. No part of this brief was authored

by any party’s counsel, and no person or entity other than amicus

funded its preparation or submission.

2

SUMMARY OF ARGUMENT

In the spring of 2016, Anthony Novak spent four

days in jail for making fun of his local police department. The cause of this unfortunate encounter with

law enforcement was Novak’s decision to engage in the

longstanding American tradition of political parody by

creating a spoof Facebook account of his local police

department.

To make his satire work, Novak needed to make the

page look convincing at first glance, so he copied the

name and profile picture of the official Facebook account of the City of Parma Police Department. Although a quick look might not have been sufficient to

distinguish satire from reality, a closer read revealed

the page’s unserious nature. The parody page lacked

the Facebook designations for an authenticated government-associated page and included the absurd slogan “we no crime.” Pet. App. at 115a. The page was

only active for twelve hours, during which time Novak

made six posts, each more ridiculous than the next.

Pet. App. at 82a, 114a–15a. The posts advertised outlandish initiatives such as a free abortion program offered by the Parma Police using an experimental technique that would take place in a van and a modest proposal to rid the city of its homeless population through

a program of starvation. Another post offered an apology for the belated notice of an armed robbery that the

police had simply forgotten to post about. Pet. App. at

114a–15a.

Novak’s page was widely shared and provoked

mixed reactions. In order to keep up the joke, Novak

deleted the comments on his posts that indicated his

posts were inauthentic. After learning that the police

were investigating the account, he made one final

3

entry in his string of outrageous posts. Novak copied

the Department’s clarification on its official page indicating that it was aware of the parody account and

that Novak’s page was not associated with the department. Pet. App. at 114a–15a.

Novak was arrested nearly a month after he

stopped posting to Facebook and charged with disrupting police operations under Ohio Rev. Code

§ 2909.04(B) (2004). The police relied on just eleven

calls made by Facebook users to its non-emergency

line to establish probable cause that the department’s

operations had been disrupted by Novak’s Facebook

activity. Pet. App. at 62a.

Fortunately for Novak, a jury of his peers saw the

absurdity of the government’s humorless prosecution

and acquitted him at trial. Novak then attempted to

vindicate his First and Fourth Amendment rights by

filing suit against the city and arresting officers under

42 U.S.C. § 1983 (1996). The police officers asserted

qualified immunity and moved to dismiss Novak’s

claims, but the district court denied the officers’ motion. On appeal, the Sixth Circuit affirmed the denial

of that motion to dismiss and determined that more

facts were necessary to resolve the case. See Novak v.

City of Parma, 932 F.3d 421 (6th Cir. 2019).

On remand, the parties moved for summary judgment after discovery. The officers once again asserted

qualified immunity and the city disclaimed municipal

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

liability. On appeal, the Sixth Circuit affirmed the

finding of qualified immunity and determined that,

while Novak’s posts were First Amendment protected

parody, it wasn’t clearly established that Novak’s

4

deletion of comments and copying of the department’s

clarification post were protected speech. Novak v. City

of Parma, 33 F.4th 296, 304–05 (6th Cir. 2022).

In light of the Sixth Circuit’s conclusion, this case

presents several important and intertwined First

Amendment issues. First, this Court recognized that

parody enjoys robust First Amendment protection in

Hustler Mag. v. Falwell, 485 U.S. 46 (1988), but has

not yet provided guidance as to how to apply Hustler

in the age of the modern internet. For example, it is

unclear to what extent the reasonable reader is supposed to take the dynamic and changing nature of the

social media medium into account when attempting to

discern whether a parody is stating “actual facts”

about its subject. Id. at 50. Relatedly, lower courts lack

clarity as to whether social media activity, such as deleting comments and altering social media pages to

further a message, constitutes speech under the First

Amendment.

Second, this case presents an opportunity to reaffirm the principle that generally applicable laws aimed

at conduct may not be selectively applied to certain

speech because of its content. The decision below categorized multiple expressive online speech acts as

merely “conduct” and therefore unprotected by the

First Amendment. This approach, if allowed to stand,

would permit government officials to criminalize disfavored speech because of its allegedly disruptive effects. The Sixth Circuit’s rule would enable the government to criminalize a broad range of speech, so long as

the government prosecutes under laws that don’t explicitly single out speech.

Finally, this Court should clarify that it is clearly a

violation of the First Amendment to arrest an

5

individual for online parody, as occurred here. This

Court should grant certiorari.

ARGUMENT

I. THIS COURT SHOULD CLARIFY THAT THE

FIRST AMENDMENT PROTECTS SOCIAL

MEDIA PARODIES

This Court’s key precedent on the First Amendment’s protections for parody predates the modern internet era. This case presents a prime opportunity to

provide guidance on how the First Amendment’s protections of parody extend to the modern internet and

social media, where anyone can be a parodist and disseminate his or her material across the globe in an instant.

Parody has long served as a powerful instrument of

social criticism, both for highlighting human folly and

advocating for change. The use of parody to mock public figures dates back to Greek antiquity, and parody

has played a prominent role in public debate throughout American history. See Hustler Mag., 485 U.S. at

54; L.L. Bean v. Drake Publishers, Inc., 811 F.2d 26, 28

(1st Cir. 1987). This Court has recognized that parody

is protected speech under the First Amendment. Hustler Mag., 485 U.S. at 56–57.

The exercise of First Amendment freedoms “will

not always be reasoned or moderate.” Id. at 51. Parody,

in particular, often entails harsh ridicule and has a

strong chance of giving offense. But these characteristics are features, not bugs, of parody. They do not justify diminished First Amendment protection. As this

Court has noted, a caricature is a “weapon of attack, of

scorn and ridicule and satire” that is often “slashing

and one-sided.” Id. at 54. If a speaker’s opinion gives

6

offense, that is “not sufficient reason for suppressing

it,” but rather “a reason for affording it constitutional

protection.” Id. at 55 (quoting FCC v. Pacifica Found.,

438 U.S. 726, 745 (1978)). Offensive and critical speech

expresses a distinct viewpoint just as much as friendly

and supportive speech does, and that viewpoint is entitled to full First Amendment protection. See id. at 56

(“[I]t is a central tenet of the First Amendment that

the government must remain neutral in the marketplace of ideas.”); see also Matal v. Tam, 137 S. Ct. 1744,

1764 (2017) (“[A government] interest in preventing

speech expressing ideas that offend . . . . strikes at the

heart of the First Amendment.”) (plurality op.).

Courts have recognized that parody comes in many

forms. As the D.C. Circuit acknowledged, “[s]ometimes

satire is funny . . . Othertimes it may seem cruel and

mocking . . . And sometimes it is absurd.” Farah v. Esquire Mag., 736 F.3d 528, 536 (D.C. Cir. 2013). Taste

and opinions will naturally vary as to whether a given

parody is brilliant or crass. That is all the more reason

why neither judges nor juries may permissibly draw

subjective lines as to which parodies are valuable and

worthy of First Amendment protection. As this Court

explained, permitting such line-drawing could “allow a

jury to impose liability on the basis of the jurors’ tastes

or views, or perhaps on the basis of their dislike of a

particular expression.” Hustler Mag., 485 U.S. at 55.

Instead, to “assur[e] that public debate will not suffer

for lack of ‘imaginative expression’ or the ‘rhetorical

hyperbole’ which has traditionally added much to the

discourse of our Nation,” this Court has held that any

satirical statement is protected so long as it “cannot

reasonably be interpreted as stating actual facts”

7

about its subject. Milkovich v. Lorain J. Co., 497 U.S.

1, 20 (1990) (cleaned up).

When applying this standard, courts properly take

into account the mimicry that is inherent to parody.

Parody “is effective as social commentary precisely because it is often grounded in truth.” Farah, 736 F.3d at

537. Parody relies on the audience’s recognition of the

original subject being mocked. See, e.g., Jon M. Garon,

Media & Monopoly in the Information Age: Slowing the

Convergence at the Marketplace of Ideas, 17 Cardozo

Arts & Ent. L.J. 491, 557 (1999) (“Satire works precisely because it evokes other materials.”). A moment

of confusion in which the audience questions whether

something so outrageous could be true can place them

in a frame of mind to consider whether the reality is

more absurd than they previously thought. See San

Francisco Bay Guardian v. Superior Ct., 21 Cal. Rptr.

2d 464, 466 (Cal. Ct. App. 1993) (“[T]he very nature of

parody . . . is to catch the reader off guard at first

glance, after which the ‘victim’ recognizes that the joke

is on him to the extent that it caught him unaware.”).

Accordingly, the mere fact that some members of a

parody’s audience may be fooled into believing it is

true does not deprive it of First Amendment protection. See Novak, 932 F.3d at 427 (“The test is not

whether one person, or even ten people, or even one

hundred people were confused by Novak’s page.”); see

also Farah, 736 F.3d at 536 (“[I]t is the nature of satire

that not everyone ‘gets it’ immediately.”); Golb v. AG

of N.Y., 870 F.3d 89, 102 (2d Cir. 2017) (“[A] parody

enjoys First Amendment protection notwithstanding

that not everybody will get the joke.”). Examples

abound of satirical publications that were initially regarded as true. Greek playwright Aristophanes’ The

8

Clouds “was so misunderstood as praising immorality

that he had to insert a deadly serious scene directly

criticizing an earlier audience for not catching the satire.” Phillip Deen, What Moral Virtues Are Required to

Recognize Irony?, 50 J. Value Inquiry 51, 52 (2016).

Numerous people, including a member of Congress,

have mistaken stories from The Onion, a popular satirical “news source,” as real news. See id. at 51. Many

readers of Benjamin Franklin’s “The Speech of Polly

Baker,” which protested society’s double standards for

men and women, believed it to be a genuine account of

court proceedings. Max Hall, Benjamin Franklin &

Polly Baker: The History of a Literary Deception 16–

24, 33, 61 (1960). And even when some audience members are confused, “a parody need not spoil its own

punchline by declaring itself a parody” in order to be

protected speech. Novak, 932 F.3d at 428.

The touchstone instead is the understanding of a

reasonable reader, given the full context of the expression. And given the “special characteristics” of parody

and satire, “‘what a reasonable reader would have understood’ is more informed by an assessment of her

well-considered view than by her immediate yet transitory reaction.” Farah, 736 F.3d at 536.

The internet and social media have engendered

new forms and genres of parody, but these First

Amendment principles remain the same regardless of

the form a parody may take. For example, the Tenth

Circuit dealt with the case of a college student who

“created a fictional character, ‘Junius Puke,’ for the editorial column of his internet-based journal, The Howling Pig.” Mink v. Knox, 613 F.3d 995, 998 (10th Cir.

2010). The column featured altered photographs of a

real professor, Junius Peake, “wearing dark

9

sunglasses and a Hitler-like mustache.” Id. The column “addressed subjects on which Mr. Peake would be

unlikely to write, in language he would be unlikely to

use, asserting views that were diametrically opposed

to Mr. Peake’s.” Id.

Even though this parody appeared in an online selfpublished journal rather than an established media

outlet, the First Amendment inquiry was the same:

whether the column “could reasonably be understood

as describing actual facts about the [professor] or actual events in which he participated.” Id. at 1006. And

that inquiry is based on “what a reasonable reader

would understand the author to be saying, considering

the kind of language used and the context in which it

is used.” Id. at 1007 (emphasis in original). Because

“no reasonable reader would believe that the statements in that context were said by Professor Peake in

the guise of Junius Puke,” the Tenth Circuit found the

column to be protected parody.

And the same approach applies for the particular

medium that Novak chose for his parody: social media.

Parody social media accounts allow satirists to mimic

their targets in a forum that has become “the modern

public square.” Packingham v. North Carolina, 137 S.

Ct. 1730, 1737 (2017). In one case, a woman created a

parody social media account on Disqus (a social media

site similar in functionality to Twitter) mocking

Kathryn Knott, who had been charged in a high-profile

assault case and who was the daughter of a local chief

of police. O’Donnell v. Knott, 283 F. Supp. 3d 286, 291–

92 (E.D. Pa. 2017). Using the profile name “Knotty is

a Tramp” and an unflattering photo of Knott as a profile picture, the account posted comments under stories of the assault case such as “That’s why I should

10

get off because daddy is a chief of police.” Id. at 292,

297.

Social media may be a novel format and a new vehicle for parody, but the First Amendment principle

remains the same: “speech is protected when, viewed

in the appropriate context, it does not reasonably purport to state an actual fact about the subject of the parody.” Id. at 299. Because it was “entirely plausible that

a reasonable reader would not believe that Kathryn

Knott would publicly” write the comments at issue, the

court found that the comments were plausibly protected speech. Id. at 301–02 (emphasis in original).

In sum, First Amendment protection for parody is

not diminished because some may be offended, because some may be fooled, or because the format is a

novel one like social media. So long as a reasonable

reader upon full reflection understands the speech to

be a parody rather than a claim of fact, that speech is

protected by the First Amendment.

II. THIS CASE PRESENTS THE OPPORTUNITY

TO FURTHER CLARIFY THE DISTINCTION

BETWEEN UNPROTECTED CONDUCT AND

PROTECTED SPEECH

Unconstitutional speech restrictions do not always

arise from laws that explicitly identify the speech to be

regulated. When a law of general applicability that

regulates conduct is applied to speech because of its

content, this Court has consistently extended the protections of the First Amendment. See Eugene Volokh,

Speech as Conduct, 90 Cornell L. Rev. 1277, 1287–94

(2005). This Court has rejected the argument that a

statute can criminalize protected speech if it “generally

functions as a regulation of conduct.” Holder v.

11

Humanitarian L. Project, 561 U.S. 1, 27–28 (2010)

(emphasis in original). As the Court explained, that argument “runs headlong into a number of [Supreme

Court] precedents, most prominently Cohen v. California, [403 U.S. 15 (1971)].” Id.

“Cohen also involved a generally applicable regulation of conduct, barring breaches of the peace . . . . But

when Cohen was convicted for wearing a jacket bearing an epithet,” this Court “recognized that the generally applicable law was directed at Cohen because of

what his speech communicated—he violated the

breach of the peace statute because of the offensive

content of his particular message.” Id. at 28. This

Court “accordingly applied more rigorous scrutiny and

reversed his conviction.” Id. (citing Cohen, 403 U.S. at

18–19, 26). See also Cantwell v. Connecticut, 310 U.S.

296, 309 (1940) (setting aside a breach of the peace

conviction because the sole basis of the conviction was

protected speech, notwithstanding the fact that “the

effect of [the defendant’s] speech upon his hearers” did

in fact cause a disturbance); Forsyth v. Nationalist

Movement, 505 U.S. 123, 134–35 (1991) (“Listeners’ reaction to speech is not a content-neutral basis for regulation. . . . Speech cannot be financially burdened,

any more than it can be punished or banned simply

because it might offend a hostile mob.”).

Here, contrary to the Sixth Circuit’s conclusion

that certain aspects of Novak’s Facebook activity constituted unprotected activity as opposed to speech, all

of Novak’s activity on Facebook furthered and maintained his parody and is therefore protected speech. As

a result, the First Amendment places limits on the government’s ability to punish Novak for any confusion

his activity caused, just as the First Amendment

12

placed limits on the government’s ability to punish Cohen for any offense or disturbance his epithet caused.

If this were not the case, then all manner of protected

speech could be criminalized and punished without

any need to satisfy First Amendment scrutiny, so long

as the government could show that the speech “impaired police operations.” See Volokh, supra, at 1288

(“[I]f generally applicable laws were immune from

First Amendment scrutiny, then the government could

suppress a great deal of speech that is currently constitutionally protected, including advocacy of illegal

conduct, praise of illegal conduct, and even advocacy of

legal conduct.”).

The First Amendment’s protections also extend to

intentional violations of laws of general applicability.

In Hustler Magazine, this Court determined that

“speech that is patently offensive and intended to inflict emotional injury” is protected speech when aimed

at a public figure. 485 U.S. at 50. The underlying tort

of intentional inflection of emotional distress did not

include speech as an element, so “[t]he publisher of

Hustler . . . would have been equally guilty of intentional infliction of emotional distress if he had played

a highly embarrassing joke” on his subject. Volokh, supra, at 1291. But because “the general law was applied

to the magazine because of the content of its speech,”

id., this Court rejected the argument that malicious

intent was sufficient for a damages award to withstand constitutional scrutiny, observing that “many

things done with motives that are less than admirable

are protected by the First Amendment.” Hustler Mag.,

485 U.S. at 53.

Similarly, in Cohen, the defendant “wore the jacket

knowing that the words were on the jacket as a means

13

of informing the public of the depth of his feelings

against the Vietnam War and the draft.” 403 U.S. at

16. The lower court thus found that Cohen intentionally violated a provision of California law that prohibited “‘maliciously and willfully disturb[ing] the peace

or quiet of any neighborhood or person . . . by . . . offensive conduct.’” Id. The Supreme Court never disputed

the finding that Cohen’s violation was intentional, because even intentional violations do not forfeit First

Amendment protections. “The only ‘conduct’ which the

State sought to punish [was] the fact of communication” which rendered the application of the law to Cohen unconstitutional. Id. at 18.

Thus, even if Novak created his parody Facebook

page with malicious intent, the existence of such intent would not place his parodic posts beyond the reach

of the First Amendment. A state may not subject

speech acts to a generally applicable rule of conduct

without satisfying some level of First Amendment

scrutiny.

Furthermore, any false statements of fact contained in Novak’s Facebook posts do not place them

categorically beyond the scope of the First Amendment. This Court “has never endorsed the categorical

rule . . . that false statements receive no First Amendment protection.” United States v. Alvarez, 567 U.S.

709, 719 (2012). “Even when considering some instances of defamation and fraud, moreover, [this]

Court has been careful to instruct that falsity alone

may not suffice to bring the speech outside the First

Amendment. The statement must be a knowing and

reckless falsehood.” Id. The established exceptions to

the First Amendment for verbal crimes like solicitation, fraud, blackmail, perjury, and certain threats

14

“are separately crafted rules that let the government

punish speech in particular circumstances, based on

arguments about the harm and value of speech that

are specific to each exception.” Volokh, supra, at 1338.

Novak was not charged with any of these crimes, and

none of these exceptions provide for categorical carveouts from First Amendment protection for his posts.

Under this Court’s precedents, Novak cannot be

punished for his speech under the guise of regulating

conduct or the effects of his speech. This is true even if

he intended to violate the law and even if his speech

contained false statements.

III. THIS CASE PRESENTS THE OPPORTUNITY TO CLARIFY THAT ONLINE PARODY

CANNOT

PROVIDE

PROBABLE

CAUSE FOR ARREST

Under the principles articulated in Hustler Magazine, all of Novak’s Facebook activity served to further

his parody and is thus protected speech. The Sixth Circuit’s distinction between activity and speech leaves

future speech vulnerable to being criminalized, runs

contrary to Hustler Magazine, and calls for this Court’s

intervention.

Under Sixth Circuit precedent, it is clear that protected speech alone “cannot support a conviction and it

cannot create probable cause.” Leonard v. Robinson,

477 F.3d 347, 360 (6th Cir. 2007) (citing Bachellar v.

Maryland, 397 U.S. 564, 570 (1970)). See also Sandul

v. Larion, 119 F.3d 1250, 1256 (6th Cir. 1997) (holding

that protected speech “cannot serve as the basis for a

violation of any” municipal ordinance); Swiecicki v.

Delgado, 463 F.3d 489, 499 (6th Cir. 2006) (If an officer

15

“based his decision on protected speech,” he “lacked

probable cause to arrest.”).

The constitutional question, then, is whether a reasonable officer would believe that the law at issue is

constitutional as applied to the speech at issue. Leonard, 477 F.3d at 359. It is not necessary, however, for

a court to have previously found a particular law to be

unconstitutional. Even where no court has weighed in,

if a “person of reasonable prudence would be bound to

see [the law’s] flaws,” then an officer cannot rely on

that law to establish probable cause. Id. (quoting

Michigan v. DeFillippo, 443 U.S. 31, 38 (1979)). See

also Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[O]fficials can still be on notice that their conduct violates

established law even in novel factual circumstances.”).

This Court’s opinion in Hustler Magazine should have

put any reasonable police officer on notice that Novak’s

parody was protected speech, which cannot be the basis of probable cause for an arrest.

The Sixth Circuit reasoned below that “though Novak’s Facebook activity and its consequences form the

sole basis for probable cause (since he didn’t do anything else, like hack into the Department’s page), it’s

possible that not all of his Facebook activity was protected speech.” Novak, 33 F.4th 296 at 305 n.1 (emphasis added). The panel concluded that it was reasonable

for the officers to view Novak’s close mimicry of the official page, his “delet[ing] comments that let on his

page wasn’t the official one,” and his decision to “cop[y]

the official page’s clarification post word for word” as

unprotected conduct. Id.

This rationale sharply contradicts the Sixth Circuit’s previous observation that “a parody need not

spoil its own punchline by declaring itself a parody.

16

‘Parody serves its goals whether labeled or not, and

there is no reason to require parody to state the obvious (or even reasonably perceived).’” Novak, 932 F.3d

at 428 (quoting Campbell v. Acuff-Rose Music, Inc.,

510 U.S. 569, 583 n.17 (1994)). While making this observation, the Sixth Circuit mused: “[i]magine if The

Onion were required to disclaim that parodical headlines . . . are, in reality, false . . . . The law of parody

does not require us to strain credulity so far.” Id.

The Sixth Circuit had it right the first time. Just as

The Onion is not required to give up the joke in the

context of its own work, neither should an online parodist be required to allow others to ruin the joke within

the parody-conveying medium. Indeed, requiring such

disclosures would fundamentally alter the expression

at issue and limit the freedom to parody protected by

Hustler Magazine. Here, Novak’s deletion of others’

comments preserved and furthered his parody, and, as

a result, his actions constituted protected speech rather than unprotected activity.

Similarly, Novak’s decision to copy the Parma Police’s clarification post verbatim also falls within the

ambit of protected speech because the surrounding

context hinted at the page’s satirical nature. “[S]atire

or parody must be assessed in the appropriate context

. . . . In light of the special characteristics of satire, . . .

what a reasonable reader would have understood is

more informed by an assessment of her well-considered view than by her immediate yet transitory reaction.” Farah, 736 F.3d at 536 (internal quotations

omitted).

By the time the Parma Police Department posted

its clarification, there were two sets of Facebook posts

for a reasonable reader to consider. The first set was

17

the department’s official page, which possessed the

“Police Station-Government Organization” designation from Facebook as well as the “blue checkmark” indicating that the identity of the account holder had

been verified with Facebook. Pet. App. at 30a–31a.

These Facebook-provided designations, especially the

“blue checkmark,” were readily apparent to users of

the site. Additionally, the official account had a cumulative history that extended beyond the prior twelve

hours and contained all of the Department’s prior Facebook communications.

The second set came from Novak’s parody account,

which lacked the Facebook-provided designations and

had an account history comprising only six posts over

the preceding twelve hours. Pet. App. at 30a–31a.

These earlier posts: 1) advertised a written exam to

join the police force that simultaneously “strongly encourage[ed] minorities not to apply” while noting that

the Parma Police Department was an equal opportunity employer; 2) advertised a “Pedophile Reform

event” at which there would be a “‘No means no’ station filled with puzzles and quizzes,” the successful

completion of which would result in removal from the

sex offender registry and an honorary deputization as

a police officer; 3) announced a new “temporary law”

promulgated by the Department with the aim of “attempt[ing] to have the homeless population leave our

city due to starvation”; 4) offered “free abortions to

teens using an experimental technique discovered by

the Parma Police Department” that would take place

in a van outside of a local grocery store; 5) provided

notice of an alleged robbery that took place at a Subway restaurant that the department had “forgotten to

post” about that described a white male suspect but

instead sought information about an “unrelated

18

African American Woman” depicted in security footage

“who was seen loitering for over 20 minutes despite

[the Subway’s] no loitering policy”; and 6) declared an

“official stay inside and catch up with family day” to

“reduce future crimes” during which anyone found outside would be arrested. Pet. App. 139a–141a; Brief for

Petitioner, at 4–5, Novak v. City of Parma, 33 F.4th

296 (6th Cir. 2022) (No. 21-3290). A reasonable reader

viewing these posts in context would be immediately

struck by the unserious nature of the posts.

Novak’s final act—his cut and paste of the Department’s clarification—was posted after the original and

as a follow-up to the posts described above. Just as the

D.C. Circuit recognized that a reasonable reader who

possessed a “baseline of knowledge” would use relevant context to distinguish facts from satire in the context of a political blog, in this case, all of the aforementioned context was available to a reasonable reader

with a basic understanding of Facebook. That reader’s

“well considered view” would have incorporated the

knowledge of these posts, even if the obviousness of

Novak’s parody wasn’t already apparent. Farah, 736

F.3d at 536–38.

Ultimately, the totality of Novak’s Facebook activity was protected speech under the principles of this

Court’s opinion in Hustler Magazine. Everything Novak did furthered the expressive goal of making his

page the complete parody he wanted it to be. There

was no separate conduct for which he could or should

have been arrested.

19

CONCLUSION

For the foregoing reasons, and those described by

the Petitioner, this Court should grant the petition.

........................................... Respectfully submitted,

October 28, 2022

Clark M. Neily III

Counsel of Record

Thomas A. Berry

Nicholas DeBenedetto

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

cneily@cato.org