Reply 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

REPLY IN SUPPORT 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

TABLE OF CONTENTS

Page

Reply in Support of Certiorari ................................... 1

I. Respondents attempt to distinguish the

split but, instead, highlight the circuit

conflict over the first question

presented. ........................................................ 3

A. When can government officials

punish individuals for their speech?

The circuits cannot agree........................... 4

B. The Fifth Circuit’s recent grant of en

banc review in Villarreal v. City of

Laredo further demonstrates the

circuit conflict. ............................................ 6

II. Respondents attempt to introduce

vehicle problems, but only illustrate

how courts are using qualified

immunity to avoid simple free-speech

questions. ......................................................... 9

III.There are many reasons to reconsider or

recalibrate qualified immunity. .................... 12

Conclusion ................................................................ 13

ii

TABLE OF AUTHORITIES

Page

CASES

Americans for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021)......................................... 11

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ............................................. 11

Ballentine v. Tucker,

28 F.4th 54 (9th Cir. 2022) ............................... 2–4

Baxter v. Bracey,

140 S. Ct. 1862 (2020)......................................... 12

Cohen v. California,

403 U.S. 15 (1971) ................................................. 5

Crocker v. Beatty,

995 F.3d 1232 (11th Cir. 2021)......................... 2, 4

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022)......................................... 12

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021)........................................... 3

Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1988) ............................................. 5–6

Janny v. Gamez,

8 F.4th 883 (10th Cir. 2021) ........................... 5, 10

Kisela v. Hughes,

138 S. Ct. 1148 (2018)......................................... 12

Mitchell v. Forsyth,

472 U.S. 511 (1985) ............................................. 12

iii

Ness v. City of Bloomington,

11 F.4th 914 (8th Cir. 2021) ................................. 4

Novak v. City of Parma,

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

2021) .............................................................. 1–3, 9

Novak v. City of Parma,

33 F.4th 296 (6th Cir. 2022) ................... 1, 4, 9–11

Novak v. City of Parma,

932 F.3d 421 (6th Cir. 2019)............................... 10

Pearson v. Callahan,

555 U.S. 223 (2009) ....................................... 10–12

Taylor v. Riojas,

141 S. Ct. 52 (2020)............................................. 12

Thompson v. Ragland,

23 F.4th 1252 (10th Cir. 2022) ............................. 5

Villarreal v. City of Laredo,

17 F.4th 532 (2021) ............................................... 7

Villarreal v. City of Laredo,

44 F.4th 363 (5th Cir. 2022) ............................. 6–8

Villarreal v. City of Laredo,

52 F.4th 265 (5th Cir. 2022) ................................. 6

Williams v. Snyder,

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

Apr. 11, 2022) ........................................................ 5

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I .................................... 1–6, 8, 11

iv

STATUTES

Texas Penal Code § 39.06(c) (2017) ........................... 8

OTHER AUTHORITIES

Tex. Br., Villarreal v. City of Laredo,

No. 20-40359 (5th Cir. Jan. 11, 2023) .................. 8

1

REPLY IN SUPPORT OF CERTIORARI

Petitioner Anthony Novak spent four days in jail

for making fun of his local police department on Facebook. The founders designed the Bill of Rights to prevent that sort of tyranny, but the Sixth Circuit chose

not to apply the First Amendment to Novak’s case.

Pet. App. 8a–9a. Defending that decision, respondents claim (at 1) that this “is a qualified immunity

case,” “not a First Amendment case, as Novak and the

media argue.” The district court similarly observed

that “Novak’s First Amendment claim, though significant in a general sense, is irrelevant” in the face of

qualified immunity. Pet. App. 50a. But these statements beg the question Novak’s petition puts to the

Court: Whether government officials can arrest an individual solely for his speech, so long as no court has

previously held the particular speech is protected.

The circuits are split over this question. In the

Sixth, Eighth, and Eleventh Circuits, police can arrest government critics for their speech, but in the

Ninth and Tenth Circuits, they cannot. (Until recently, the Fifth Circuit also precluded arrests for

speech.) The reason for the split is both simple and

unavoidable due to competing lines of this Court’s

cases. While First Amendment doctrine requires deference to the speaker, qualified-immunity doctrine requires deference to the government. When the interests of a speaker and the government are opposed—

as they often are—there is no clear path forward.

This is a case in point, and respondents’ opposition

to certiorari underscores the need for this Court’s review in several ways:

2

First, respondents acknowledge (at 27–28) that

the circuits have reached different outcomes when addressing the interaction of free speech and qualified

immunity. But these conflicting outcomes do not

amount to a circuit split, according to respondents, because there are minor factual distinctions between

the cited cases. Far from clearing up the split, respondents accidentally identify the issue at its

heart—whether fundamental First Amendment principles are enough to warn police that arresting an individual for speech is unconstitutional. Compare, e.g.,

Ballentine v. Tucker, 28 F.4th 54, 66 (9th Cir. 2022)

(holding that a First Amendment “right can be clearly

established despite a lack of factually analogous

preexisting case law”), with Crocker v. Beatty, 995

F.3d 1232, 1240–1241 (11th Cir. 2021) (holding that

general free-speech concepts cannot override qualified immunity, unless prior caselaw addressing “the

specific situation” provides “detail about the contours

of the right”).

Second, respondents assert (at 23–25) that the

question of “whether Novak’s speech was entitled to

First Amendment protection” is an “unresolved question of fact” that makes this case a poor vehicle for

certiorari. To the contrary, respondents identify a

question of law, and the parties agree on the facts necessary to adjudicate it. That is crystal clear because

this appeal arises from cross-motions for summary

judgment. Pet. App. 27a. Thus, this case is an exceptionally clean vehicle for review; the Court needs only

to apply law to uncontested facts to answer the questions presented. Moreover, respondents’ argument (at

23–24) that free speech is irrelevant to this case exemplifies how qualified immunity allows courts to

3

sanction First Amendment violations in even the

most obvious cases. See Pet. App. 29a (district court

stating it “does not even have to resolve the First

Amendment issue to rule on the parties’ motions for

summary judgment”). If the First Amendment does

not prevent the government from jailing its critic for

parody, this Court should say so.

Third, respondents claim (at 17–23) “there is no

considered reason” to revisit immunity doctrine, but

there are many. See, e.g., Pet. 34–35 nn.14–19)

(providing reasons). This Court’s “qualified immunity

jurisprudence stands on shaky ground.” Hoggard v.

Rhodes, 141 S. Ct. 2421, 2421 (2021) (mem.) (Thomas,

J., statement respecting denial of certiorari).

The Court should grant Novak’s petition because,

even after years of percolation, the important questions it presents cannot be resolved by the lower

courts.

I.

Respondents attempt to distinguish the

split but, instead, highlight the circuit

conflict over the first question presented.

Respondents try (at 27–28) to explain away the circuit split by pointing to picayune differences between

the conflicting cases. But whether “a lack of factually

analogous preexisting case law” shields police from liability for arresting individuals for exercising the

freedom of speech is the very issue over which the circuits are split. See Ballentine, 28 F.4th at 66 (citation

omitted). The Sixth, Eighth, and Eleventh Circuits

say no, but the Ninth and Tenth Circuits say yes. (Until recently, so did the Fifth Circuit. Now, it is up in

4

the air as the circuit prepares to issue its third opinion in Villarreal v. City of Laredo.)

A. When can government officials punish

individuals for their speech? The circuits cannot agree.

Three circuits agree with respondents (at 19) that

“unusual facts” in First Amendment cases require the

application of qualified immunity. In these circuits,

police who arrest individuals for their speech are immune from liability unless a court has previously

blessed the particular speech at issue. So, the Sixth

Circuit below granted respondents immunity because

Novak could not identify an earlier case involving the

deletion of comments and reposting of a government

notice on social media. Pet. App. 9a. The Eighth Circuit granted immunity to police who threatened to arrest a woman for filming in a public park because no

earlier case had invalidated the vague statute supporting the threat. Ness v. City of Bloomington, 11

F.4th 914, 921 (8th Cir. 2021). And the Eleventh Circuit granted immunity to an officer who arrested a

man for filming the aftermath of a traffic accident because no earlier case addressed that “specific situation.” Crocker, 995 F.3d at 1241. In these circuits, the

courts effectively permit police to arrest individuals

for their speech.

At least two circuits reject respondents’ argument.

In these circuits, basic First Amendment principles

provide fair warning to officials “even in novel factual

circumstances.” Ballentine, 28 F.4th at 66 (citation

omitted). So, the Ninth Circuit denied immunity to an

officer who arrested activists for chalking political

5

messages on sidewalks, id. at 58–59, and the Tenth

Circuit refused to shield a parole officer who had an

atheist parolee arrested for refusing to engage in

mandatory prayer and church attendance at a Christian halfway house, Janny v. Gamez, 8 F.4th 883

(10th Cir. 2021). See also Thompson v. Ragland, 23

F.4th 1252 (10th Cir. 2022) (denying immunity to a

college administrator who punished a student for

online speech); Williams v. Snyder, No. 20-1512, 2022

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

In line with the Sixth Circuit’s side of the split, respondents nowhere attempt to argue that their actions satisfy the First Amendment. Fair enough.

Freedom of speech cannot be squared with the ability

of government officials to jail their critics. All respondents offer instead (at 26–28) is the observation

that there are inconsequential factual differences between the type of speech Novak engaged in and the

types of speech at issue in the decisions of the Fifth,

Ninth, and Tenth Circuits. Respondents point out (at

27) that the Ninth Circuit addressed speech made in

sidewalk chalk and (at 26 n.10) the Fifth Circuit considered verbal speech, while Novak’s speech was

made online. But respondents do not explain why

those factual distinctions matter under the First

Amendment.

No case has cabined Cohen v. California, 403 U.S.

15, 18 (1971), to speech emblazoned on jackets, or restricted Hustler Magazine, Inc. v. Falwell, 485 U.S.

46, 54–55 (1988), to speech printed in adult magazines. Yet the aggressive form of qualified immunity

respondents advocate does just that. Besides

6

distinguishing chalk from talk, respondents try (at

25) to differentiate this case from Hustler because

Hustler involved parody in “a one-page advertisement

printed on the inside front cover of [a] magazine[,]”

whereas Novak’s parody “used a dynamic medium

which evolved as he added and deleted information

over time.”

The differences respondents identify are irrelevant to the First Amendment but—at least in the

Sixth, Eighth, and Eleventh Circuits—dispositive for

qualified immunity. In those circuits, little is left of

the free-speech protections our Constitution guarantees.

B. The Fifth Circuit’s recent grant of en

banc review in Villarreal v. City of Laredo further demonstrates the circuit

conflict.

While the other circuits are divided over Novak’s

first question presented, the Fifth Circuit cannot

seem to make up its mind at all. As Novak’s petition

explained, the Fifth Circuit’s decision in Villarreal v.

City of Laredo, 44 F.4th 363 (5th Cir. 2022) (Villarreal II), contrasted with the Sixth Circuit’s decision

below, exemplifying the circuit split. But as respondents note (at 26), a month after Novak filed his petition, the Fifth Circuit granted en banc review, vacating Villarreal II. 52 F.4th 265 (5th Cir. 2022) (mem.).

Now, rather than exemplifying the circuit split over

Novak’s first question presented, Villarreal exemplifies the sheer confusion over that issue among the circuit bench.

7

Villarreal involved very similar facts to those here.

Annoyed with a local critic, police concocted a pretext

to arrest her under a broadly written Texas statute,

relying on her speech as the basis for probable cause.

Villarreal II, 44 F.4th at 368–369. When the case arrived at the Fifth Circuit, the Court denied qualified

immunity in a decision written by Judge Ho and

joined by Judge Graves. Villarreal v. City of Laredo,

17 F.4th 532 (2021) (Villarreal I). Villarreal I held

that the arrest represented an obvious violation of the

First Amendment for which the officers were not entitled to qualified immunity. Id. at 540. The court

went further and invalidated the Texas statute as unconstitutional. Id. at 541. Chief Judge Richman dissented but did not release an opinion at the time of

publication. Id. at 536 n.*.

Ten months later, Judge Richman issued her dissent. The panel simultaneously withdrew and replaced its decision in Villarreal I. See Villarreal II, 44

F.4th at 367. Again joined by Judge Graves, Judge Ho

authored Villarreal II, which tracked closely with Villarreal I. This time, however, the Fifth Circuit

stopped short of invalidating the Texas statute, concluding that it was only unconstitutional as applied.

Villarreal 2, 44 F.4th at 372. Judge Ho separately concurred to more thoroughly address Judge Richman’s

dissenting arguments. See Pet. 17–20 (discussing Villarreal II at length).

Two months later (and one month after Novak

filed this petition), the Fifth Circuit granted en banc

review, vacating Villarreal II, and the State of Texas

has intervened to defend the constitutionality of its

8

statute. Tex. Br., Villarreal v. City of Laredo, No. 2040359 (5th Cir. Jan. 11, 2023).

The Fifth Circuit’s grant of en banc review removed Villarreal II from the circuit split Novak originally identified, but not from this Court’s consideration of whether to grant certiorari in this case. No

matter the outcome of Villarreal III, the arguments

between Judges Ho and Richman will continue to parallel the arguments made by the circuits on either

side of the split. Because they represent the clash between competing lines of this Court’s cases, they are

irreconcilable without this Court’s guidance. And the

fact that the Fifth Circuit will ultimately require three

decisions to determine whether police can arrest a

critic for her speech only underscores the need for the

Court to grant review here and settle the conflict.

Indeed, Texas’s intervention in Villarreal to defend the constitutionality of its statute will only

muddy issues that are clean here because Novak does

not challenge the constitutionality of the Ohio statute

under which respondents arrested him. See Tex. Br.,

supra, at 16–19 (discussing how Texas courts would

interpret the word “solicit” to mean an inchoate offence under Texas Penal Code § 39.06(c)), 30–39 (detailing what would support probable cause under the

statute considering other unique features of Texas

law).

9

II.

Respondents attempt to introduce vehicle

problems but only illustrate how courts

are using qualified immunity to avoid

simple free-speech questions.

Respondents contend (at 23–25) that since the

Sixth Circuit declined to answer “whether Novak’s

speech was entitled to First Amendment protection,”

this case is an inappropriate vehicle for certiorari.

Quite the opposite. This case involves a simple constitutional question: Can police arrest an individual

based solely on speech parodying the government, so

long as no case has previously held the particular

speech is protected? To resolve it, this Court need only

apply the law to uncontested facts, which makes this

case a good vehicle to address the questions presented.

Respondents claim (at 24) that “whether Novak’s

speech was entitled to First Amendment protection”

is an unresolved issue of fact. It is not. It is a dispute

of law, and the parties agree on the facts necessary to

decide it. See, e.g., Pet. App. 51a n.7 (district court

noting this agreement). Novak created a Facebook

page mocking the Parma Police Department, where

he published six parody posts. Pet. App. 139a–141a.

When commenters and the department tried to spoil

the joke by disclaiming it as fake, Novak deleted those

comments and reposted the department’s notice. Id.

at 3a. For his speech, respondents searched, arrested,

jailed, and prosecuted Novak for a felony. Id. at 2a–

5a.

Because Novak’s parody is protected speech, the

lower courts faced a straightforward First Amendment question. But the Sixth Circuit used qualified

10

immunity to dismiss Novak’s case without addressing

respondents’ constitutional violations. Respondents

defend this (at 23–24) because the “reasonable

reader” standard for parody is a fact-bound one that

must go to a jury. See Pet. App. 88a–91a. But the reliance on qualified immunity to evade even the easiest

First Amendment issues does not provide a reason for

the Court to deny certiorari; it emphasizes the need

for this Court to intervene.

Respondents’ observation that the lower courts refused to decide whether Novak’s speech was constitutionally protected before tossing his case crystalizes

the circuit split. While the Eighth and Eleventh Circuits may have also thrown out Novak’s case without

considering the First Amendment, the Ninth and

Tenth Circuits would not have. That’s because, in the

Ninth and Tenth Circuits, First Amendment plaintiffs are not forced to engage in “a scavenger hunt for

prior cases with precisely the same facts,” see Janny,

8 F.4th at 915, while plaintiffs in the Sixth, Eighth,

and Eleventh Circuits are, see Pet. App. 9a (“Novak

has not identified a case that clearly establishes deleting comments or copying the official warning is protected speech.”).

The need for plaintiffs like Novak to find identical

precedent or else have the merits of their constitutional claims ignored is a feature unique to qualified

immunity. The only reason why the Sixth Circuit

could sidestep the constitutional issues at summary

judgment is because qualified immunity empowered

it to do so. See Pearson v. Callahan, 555 U.S. 223, 236

(2009) (allowing courts to skip the constitutional merits under the clearly established test). Cases involving

11

clear First Amendment violations like this one—especially those that do not involve split-second decision

making or dangerous situations—illustrate how some

circuits are using qualified immunity as a constitutional escape hatch. See, e.g., Pet. App. 9a (“[W]hile

probable cause here may be difficult, qualified immunity is not.”). Situations like Novak’s also demonstrate why Pearson’s permission to skip constitutional

questions should not apply in obvious cases. See 555

U.S. at 237 (suggesting that courts should not skip the

constitutional merits where it is “obvious * * * there

is such a right”).

At bottom, the circuit split this case identifies

rests on the irreconcilable conflict between this

Court’s speech and immunity doctrines. See Pet. at

25–32. In its cases addressing free speech, the Court

has repeatedly warned lower courts they must defer

to speech. See, e.g., Americans for Prosperity Found.

v. Bonta, 141 S. Ct. 2373, 2384 (2021) (citation omitted) (“First Amendment freedoms need breathing

space to survive[.]”). In its cases addressing qualified

immunity, the Court has also repeatedly warned

lower courts they must defer to immunity. See, e.g.,

Ashcroft v. al-Kidd, 563 U.S. 731,743 (2011) (“Qualified immunity gives government officials breathing

room[.]”). So, when a case like Novak’s pits speech

against immunity, the circuits are split over what to

do. In the Ninth and Tenth Circuits, speech gets the

breathing room, but in the Sixth, Eighth, and Eleventh, immunity does. Only this Court can decide

which is correct.

12

III.

There are many reasons to reconsider or

recalibrate qualified immunity.

Finally, constitutional scholars and jurists across

the ideological spectrum—including members of this

Court—disagree with respondents’ unsupported assertion (at 16, 17, 23, 31) that there is no “compelling

or considered reason” to revisit the doctrine of qualified immunity. There are many.

Justice Thomas, for instance, has expressed

“strong doubts about [the] qualified immunity doctrine.” See Baxter v. Bracey, 140 S. Ct. 1862, 1864–

1865 (2020) (mem.) (Thomas, J., dissenting from denial of certiorari). Justice Sotomayor has likewise objected that qualified immunity guts constitutional

protections. Kisela v. Hughes, 138 S. Ct. 1148, 1162

(2018) (per curiam) (Sotomayor, J., dissenting). Accord Dobbs v. Jackson Women’s Health Org., 142 S.

Ct. 2228, 2265–2278 (2022) (citing bases for overruling harmful precedent).

In the face of these and the many other reasons

Novak has provided, see, e.g., Pet. 34–35 nn.14–19,

perhaps the Court should reconsider qualified immunity entirely. Or perhaps it should simply recalibrate the doctrine in one or more targeted ways. See,

e.g., Pearson, 555 U.S. at 236 (merits skipping);

Mitchell v. Forsyth, 472 U.S. 511, 524–530 (1985) (interlocutory review); Taylor v. Riojas, 141 S. Ct. 52

(2020) (per curiam) (obvious violations).

Regardless, the two questions Novak presents are

independent. If the Court chooses to grapple with

broader objections to its qualified immunity doctrine,

this case is a suitable vehicle. If the Court chooses not

13

to, this case is still a suitable vehicle to resolve the

intractable split over how to reconcile its free-speech

cases with its qualified-immunity cases. The petition

for certiorari should therefore be granted.

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

JANUARY 24, 2023