Criminal - Novak v. City of Parma

Episode Date: February 17, 2023

In 2016, a man named Anthony Novak created a parody Facebook page of his local police department. "I just thought, 'That would be funny.'" About a month later, he was arrested. Novak is now petitioning the Supreme Court, and The Onion submitted an amicus brief in support of his case. Their brief is written as a parody of an amicus brief. Say hello on Twitter, Facebook and Instagram. Sign up for our occasional newsletter, The Accomplice. Follow the show and review us on Apple Podcasts: iTunes.com/CriminalShow. Listen back through our archives at youtube.com/criminalpodcast.  We also make This is Love and Phoebe Reads a Mystery. Artwork by Julienne Alexander. Check out our online shop.  Episode transcripts are posted on our website. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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involving homicide detectives, ghost hunters, and even psychic mediums, and leads him to a dark secret about his own family. Check out Ghost Story, a series essential pick, completely ad-free on Apple Podcasts. Hi, this is Phoebe.

Hi, Phoebe. Nice to meet you. How are you? I'm good. How are you? I'm fine, thank you. That's good. So, Anthony, tell me, what do you do? For a living? Yeah.

Oh, I work in sales. Do you like your job? It's good. And you like comedy? Yeah, yeah. I like comedy a lot. Anthony Novak was born in 1988 and grew up in Parma, Ohio. He says he's always really liked comedy.

He remembers his father showing him the movie Airplane when he was little. And as he got older, he and his friend would write comedy sketches and post them online. Then, one day in 2016, Anthony had an idea. He knew his local police department, the Parma Police, had a Facebook page. I left work and I was bored at the bus stop. And I just thought, oh, what if I made like a parody Facebook page of their Facebook account? That would be funny. And so as I'm getting on the bus, I'm writing the first post.

Anthony created a Facebook page that looked very similar to the real Parma Police Department's Facebook page. It had the same name and the same profile photos, but there were a few differences. For example, the real Parma Police page was designated as a police station on Facebook, while Anthony's was a community page. And the real Parma police page featured the department's slogan, We Know Crime. But the fake page's tagline was a little different. So it was, um, We Know Crime.

I wrote no as N-O. He immediately started writing posts. One described a new hiring process for police officers. All you had to do was complete a 15-question multiple-choice test and a hearing test. Anthony wrote, Parma is an equal opportunity employer, but is strongly encouraging minorities to not apply. One post announced a, quote, new temporary law against helping the homeless.

Another said that everyone in Parma had to stay inside and spend time with family. If you were seen outside your home between the hours of 12 p.m. and 9 p.m., you could be arrested. He wrote in another post that the police were offering free abortions to teenagers using an experimental technique in a police van in the parking lot of the Giant Eagle supermarket. I made them more ridiculous as it went on. Anthony put up six posts in total.

Really, I made it with the idea of making my friends on Facebook laugh. I didn't have this bigger idea. When did you start to realize that people were looking at this besides just, you know, your friends? I woke up the next day, and I noticed there was like, it wasn't like a ton. There was a little bit of traction on them. There was like more shares than I expected. It was like 100 or something. And then as my morning kept going on, as I was getting ready for work, it started to like go, go, go.

And so that's when I knew it started to pop off. People began leaving comments. Some were confused or angry. Others thought it was funny and pointed out that the page was clearly not real. I'm heading to work. It's blown up more and more. And so then I get to work, and as I'm taking breaks and stuff,

I'm watching it bigger and bigger, and then suddenly I see the actual Parma Police Department posted on their Facebook page warning residents about the page existence and how it's not the real police department. The post read, the Parma Police Department would like to warn the public that a fake Parma Police Facebook page has been created. This matter is currently being investigated by the Parma Police Department and Facebook. This is the Parma Police Department and Facebook. This is the Parma Police Department's official Facebook page. Anthony copied the text of that warning and posted it verbatim on his page.

And he deleted comments people left indicating that his page was fake. So it's just kind of ramping up more and more, and I'm posting as it goes, feeling a little nervous because they put that out, but they never explicitly say I'm doing anything wrong, just that they kind of don't like it. And then by the end of the day, my friend Seth texts me, and he said I'm on the local news, or at least the Facebook page is on the local news,

and the police are on there talking about it. Lieutenant Kevin Riley with the Parma Police Department says detectives contacted Facebook and asked them to remove the fake page as soon as possible. The postings and the materials on there, I don't want to get into discussing them in detail, but frankly, they're crude, they're demeaning, and they're very inflammatory. Our concern right now is public safety. The police also issued a press release and told reporters that the Facebook page crossed the line, quote, from satire to an actual risk to public safety. So I tried to delete it on my phone.

My phone battery was low, so it wasn't working correctly. So I actually went to my apartment, or actually my friend's apartment, deleted the page. And then it was, I thought it was done at that point. So you didn't call the police and say, hey, I'm really sorry. This is, this was a joke. I thought it'd be funny. It's down now. No, no. Cause I figured I did what they wanted out of fear. I deleted the page. His page had been up for a total of 12 hours. Nearly a month passed. And he thought that things seemed to have died down. Then late one night, Anthony and his roommate went to the store. And so it had turned just past midnight.

It was Good Friday. And then I walk out of the store, and a cop pulls up into the parking lot while we're walking and I look at my friend Drew and I was like someone's in trouble and then the cop comes up to me and he says Anthony Novak and I say Actually, I don't even know if I said yes or not But I know he said my name a couple times and I eventually said yes, and then he said put your hands behind your back And I was like, what why am I being arrested? He said put your hands behind your back. And I was like, what? Why am I being arrested? He said, put your hands behind your back. So I did.

And then he said, fake Parma police Facebook page. And then he took me to jail. I'm Phoebe Judge. This is Criminal. We'll be right back. call these series essentials. This month, they recommend Wondery's Ghost Story, a seven-part series that follows journalist Tristan Redman as he tries to get to the bottom of a ghostly presence in his childhood home. His investigation takes him on a journey involving homicide detectives, ghost hunters, and even psychic mediums, and leads him to a dark secret about his own family. Check out Ghost Story, a series essential pick,

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How will AI affect both? And how are these tools changing the way we use our computers to make stuff, communicate, and plan for the future? In this three-part special series, Decoder is surveying the IT landscape presented by AWS. Check it out wherever you get your podcasts. So I went to jail, and they took me in, they booked me. I actually never really fully understood why I was in there at first, because they booked me, and I asked what I was charged with, and they just showed me the charge of disrupting public services.

I didn't really understand it, but I was a little thrown off, so I didn't really ask a whole lot of questions. So what did you end up being charged with? Disrupting public services? Essentially, I used a computer in any way that somehow interrupted the police department's functions. And that's a felony charge. Yeah, apparently.

Parma Police Lieutenant Kevin Riley later said that he came into work one morning and his supervisor told him that the police were getting phone calls from people asking about posts on the police Facebook page that seemed, quote, controversial and strange. Lieutenant Riley looked into it. He went to talk to Detective Thomas Connor, who had experience investigating Internet crimes. Detective Connor contacted Facebook

and asked them to remove the page, but to preserve and share its information so they could try to figure out who had made it. A few weeks later, Facebook shared nearly 3,000 pages of records, which included Anthony's name as the creator of the page. Detective Connor obtained an arrest warrant. The police said that during the 12 hours Anthony's page was live, they received 11 phone calls about it.

Some people called to let them know it existed. Some called to complain or ask questions about it. Because the people who answered the phone had to spend time interacting with the callers, the police argued that Anthony had disrupted police operations. A felony. After he was taken to jail, the police searched Anthony's apartment. They took all electronic devices, including his laptop and phone, his roommate's laptop and phone, a PlayStation, and an Xbox. So I woke up the next day in jail, and I was, like, staring at the, it was like a bunk bed thing.

So I'm staring at the top bunk bed, and then I'm looking at the walls, and I'm like, man, I did something wrong. And then I, like, had to think, and I'm like, wait, I didn't really do anything that doesn't make any sense. That I, all I did was make a Facebook page that was up for one day, not even. So, and I'm like, is this prison time? Like, what is this? Am I going to have, like, a felony on my record suddenly?

Anthony was arrested at midnight on Good Friday, and there weren't a lot of people around the courthouse that Easter weekend. He waited in jail for four days before he was released on bail. The story of his arrest was national news. Five months after he created the parody page, Anthony's trial began. Police officers Kevin Riley and Thomas Connor testified. The state presented evidence that Anthony's Facebook page had disrupted public services. The 11 recorded phone calls to the police about the page.

About half of the callers knew that the page was fake. Anthony's defense attorney told the jury, This case is solely about the content of the posts. They got mad. That's why they prosecuted him. Not because he disrupted anything. The jury, quite frankly, looked confused at Parma's case most of the time. And then pretty quickly after the end of the trial, I was found not guilty. And what was the reaction from your friends, your family, when they found out that this was over,

that you weren't going to prison, that this was going to be? Relief. Yeah, everyone was relieved. I felt like a weight had been taken off of my shoulders, and I think it was a lot of people stressed out for me. Anthony told a reporter, I didn't realize how much stress this was creating in my life until it was over. I was pretty much nervous for five months. Anthony is not some sort of criminal mastermind. He's just a very regular guy. He didn't have some sort of long criminal record or a bunch of run-ins with police.

This was purely an act of comedy on his part. This is attorney Patrick Giacomo. This is a start Giacomo. and to have a whole criminal trial, you hardly see these actions taken in sort of serious crimes that fall below murder or rape. And so for them to expend this much police resources in a relatively small jurisdiction is just shocking. And I really cannot wrap my mind around what the thought process was here. I mean, I wonder if there is, though, an idea that, you know, you can't impersonate a police officer in real life that could cause harm. Maybe that also extends to online, where people believe this is a law enforcement agency providing critical information to the public, and that Anthony was violating in some way the trust

that the public has with this law enforcement body. On the issue of impersonating police, if that's what the police were concerned about here, presumably then they would have charged Anthony and searched him under a police impersonation statute, but they didn't do that. And the reason's obvious, because nobody really thought that this was someone trying to hold themselves out as being a real police officer any more than someone trick-or-treating on Halloween dressed up in a police outfit. This is not a situation where you have some weirdo who's pulling people over at night and pretending to be a police officer here, the gag was pretty obvious.

You could just read the posts. In 2017, Anthony Novak filed a lawsuit against the city of Parma and the police officers who investigated him. Anthony brought a number of claims. He argued that the police were retaliating against him for creating the Facebook page, and that he had a right to create the page because parity is protected under the First Amendment. The city moved to dismiss his lawsuit, but a district court allowed Anthony to go ahead with most of his claims. The city and the Parma police officers

then appealed the case to the Sixth Circuit Court of Appeals, but that court also allowed Anthony's case to move forward. A Sixth Circuit judge wrote, Apple pie, baseball, and the right to ridicule the government, each holds an important place in American history and tradition. Their opinion also said, a parody need not spoil its own punchline by declaring itself a parody.

Imagine if The Onion were required to disclaim that its headlines are false. What are some examples of Onion headlines that have been taken seriously? We named Kim Jong-un the sexiest man alive in the early aughts, and that was published unedited by the Chinese state news agency with a slideshow showing the dictator in all his sexy glory. Domestically, the $8 billion abortion plex opened by Planned Parenthood was picked up by a Republican congressman who warned his followers that this was a dangerous escalation of the pro-choice movement. This is Mike Gillis. He's the head writer for The Onion. Their slogan is America's finest news source.

You have trillions of readers, apparently. That's right. And we hope to have quadrillions by the end of the year. I think we're rapidly escalating our viewership. Mike Gillis says he was shocked to learn that Anthony Novak had been arrested for creating an online parody. I think that's such a testament to why parody law is important, because this is a natural instinct of a lot of people. Once they've been duped by something that resembles a form that they hold sacred, their first instinct is, oh, we've got to go on the attack here and shut

this down because it's starting to eat into our authority and make people question our ability to maintain order. Kind of the idea of the feeling of being duped. You know, people can't handle it. Right. The Onion's motto is to stoltus es, which means you are dumb in Latin. And that's because what we've been doing for so long is pulling this rhetorical sleight of hand where we dupe the gullible reader into thinking they're seeing a above the fold, real authoritative AP News headline. And then we get to the punchline, which is the ridiculous twist where people realize, oh, no, no, no, that can't possibly be, you know, so much of parody depends on this idea of a reasonable reader, someone who can look at The Onion declaring Kim Jong-un the sexiest man alive and say, that's not right. There have to be some sexier men than Kim Jong-un in the world right now. We'll be right back. Hey, it's Scott Galloway. And on our podcast, Pivot, we are bringing you a special series Thank you. the senior AI reporter for The Verge, to give you a primer on how to integrate AI into your life.

So tune into AI Basics, How and When to Use AI, a special series from Pivot sponsored by AWS, wherever you get your podcasts. Are you looking to eat healthier, but you still find yourself occasionally rebounding with junk food and empty calories? You don't need to wait for the new year to start fresh. New year, new me? How about same year, new me? You just need a different approach. Thank you. lifestyle. And since everyone's journey is different, so are your daily lessons. They're personalized to help you reach your goal. Stay focused on what's important to you with Noom's psychology and biology-based approach. Sign up for your trial today at Noom.com. When Anthony Novak initially sued the Parma police officers and the city of Parma, the police responded that they could not be sued

because they are protected by qualified immunity. If government workers believe that they're acting within the law, in some cases, they can be protected from lawsuits. Patrick Giacomo, Anthony's lawyer. Qualified immunity is a doctrine that applies to all government workers, and that doctrine was created by the U.S. Supreme Court in 1982 for policy reasons. They were concerned that if people could sue government workers, it might make the government workers reluctant to do their government jobs. Police are government workers, but this is not a police-only

doctrine. The police officers tried to prove that they believed they were following the law when they arrested Anthony, and eventually a district court agreed. Anthony appealed, and in 2022, the case went back before the Sixth Circuit for a second time. This time, the judges decided to reject Anthony's claims. They found that the officers were protected by qualified immunity. The court said that Anthony didn't just write fake posts. He made his page look similar to the police department's Facebook page.

He deleted comments that pointed out that the page was fake. And when the police department issued a warning about Anthony's page, he copied and posted that statement verbatim. In a case like Anthony's, things like parity, generally speaking, are protected by the First Amendment. There's no question about that. But the reason why Anthony's case got thrown out, why it wasn't clearly established, is that the court said, there's no earlier case, however, that specifically says that deleting comments saying that your parody is fake, which Anthony did, or copying and pasting the official warning that the police department posted, there's no case saying that doing those things are protected by the First Amendment.

So we're not going to even decide if they were, but instead we're going to say it's not clearly established and therefore Anthony's case has to be thrown out. Even though the judges granted the police officers immunity, they were still critical of the officers' behavior. One of the judges wrote, granting the officers qualified immunity does not mean their actions were justified or should be condoned. Was Novak's Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak's in the government's time? We have our doubts. But what we're seeing and what this case illustrates is that the doctrine of qualified immunity,

where the court attempted to create breathing room for government workers, has come into conflict with the First Amendment and its presumption against chilling speech. A so-called chilling effect on speech means that government actions or rules can end up discouraging free speech. So what are we to make of a situation where, on the one hand, the law is supposed to presume that Anthony can speak without being chilled, but on the other, qualified immunity gives police officers, in this case, the breathing room to arrest someone for making fun of them? Anthony isn't dropping his lawsuit. He has one last option. Here, the Supreme Court is the only court that will be able to settle that question once and for all

and to do so across the United States. So at this point, we're waiting to hear whether the United States Supreme Court will hear Anthony's case. We contacted the Parma Police Department, and their lawyer sent us a statement. It reads in part, They went on to say, the courts have held that his suit is groundless. What's your favorite lawyer joke? I hate lawyer jokes. I do not have a favorite lawyer joke.

You hate them. I don't think they're very funny. I think they're, funny. I think they're anthropologically interesting in terms of how society views lawyers and why society wants to ridicule lawyers so much and the like. But I think they're very worn out. I mean, do you have one just in the back of your head that you don't like, but you know? How can you tell if a lawyer is is is lying answer her lips are moving law professor laura e little studies comedy and the law it's really interesting to see how pervasive something that is within the realm of comedy does make its way into law. It's not only what seems to be a straightforward joke, a knock-knock joke or whatever,

but it's also more subtle ways of making humor that perhaps someone puts in their will, someone puts in their will. Someone puts in a contract. Have you seen jokes in a will before? Yes, I've studied that. One example that's pretty pervasive is the last laugh will, where someone, the testator, the deceased person, has a bone to pick with a member of their family. And they use the will as that final spizzle to get the person back.

So something like, to Susie, my daughter, I give one dollar for all the love she did not give me. That's a quote from a will. There was a German poet that provided for his wife to inherit his full estate so long as she married within two years of his death. And when he was asked why he put that in the will, he said, well, at least there will be one man that will regret my death. I mean, that's pretty subtle, but I think that's a form of humor. I mean, the thing about law, it's you could say it's a very literal thing. And so how does the law treat something like parody?

I think you've hit on the real challenge of humor in the law and probably also the intrigue. I agree with you that the law tends to be very literal. It loves three-part tests. It loves balancing one interest versus another interest. And humor is mysterious. It doesn't distill to a three-part test. What the courts do is they try as hard as they can to retreat to nice, bright-line tests, and parody is a good example of that.

Since 1988, one particular Supreme Court case has set the precedent for how parity is protected by the First Amendment. Hustler v. Falwell, I think, is probably, at this point, one of the most important cases dealing with humor in the law. Reverend Jerry Falwell, the famous televangelist, sued Hustler Magazine after they ran a fictionalized interview with him. It was a spoof of a popular advertising campaign by Campari, an Italian liqueur. In the ads, various celebrities were asked about their, quote, first time. And it always had a picture of the Campari bottle and a picture of the celebrity and a description, a narrative of how the celebrity describes, you know,

their first experience with this aperitif that has an acquired taste. It has a bitterness to it. So Hustler magazine decided to do a parody of these particular advertisements and ran an advertisement featuring Reverend Jerry Falwell discussing his first time having sex with his mother in an outhouse. Jerry Falwell sued the magazine for libel, invasion of privacy,

and infliction of emotional distress. The case went all the way to the Supreme Court. And the United States Supreme Court went about the project of deciding whether or not this is something that should be protected by freedom of expression principles in the First Amendment to the United States Constitution. The Supreme Court sided with Hustler magazine. Their opinion made it clear that Hustler's parody was, in fact, protected speech.

It reads like a love letter to parity. That is, it sort of shows that the court viewed parity as a crucial part of U.S. culture, U.S. history, and a crucial instrument in our debate. Hustler v. Falwell became a landmark case. There's even a movie about it from 1996 featuring Woody Harrelson as Larry Flint, the founder of Hustler magazine. The movie's called The People vs. Larry Flint. Professor Little says law treats parody like a, quote, favored child. And what you see is a pattern that if a particular type of humor can be fit into the concept of a parody, then it's much more likely that whoever made the parody joke will be insulated from legal liability. If in fact we accept what the Supreme Court told us, which is that parity is an important instrument for public debate and for sort of ensuring that official

conduct is appropriate, that when you're talking about law enforcement, that should be a ready target for humor and one should evaluate very carefully whether it, in fact, should lead to legal liability. The Supreme Court only hears about 1% of the cases they receive. So legal teams collect letters of support from people or organizations. One of these so-called friend-of-the-court briefs, filed in support of Anthony Novak's petition, reads, Americans can be put in jail for poking fun at the government? This was a surprise to America's finest news source and an uncomfortable learning experience for its editorial team.

For someone who hasn't seen it, can you describe the Onion Brief? Well, it looks from beginning to end like any run-of-the-mill Supreme Court brief that's filed with the court. And it's written in sufficiently formal terms and form that you start, you take it seriously. But then once you get in the thick of reading it, you can see that, in fact, it's using the instrument of parody to make an important point about the importance of parody in society. I mean, you used to be a clerk at the Supreme Court. Did you have the occasion to read a lot of funny briefs? No. I mean, I've read that the Onions brief is the first brief that's been filed in parody form.

I will take that as correct. I mean, I've certainly read a lot of briefs, Supreme Court briefs in my day. And I've read maybe little clever twists, but nothing of that level of comedy from beginning to end. On the 15th page of the Onion's brief, it reads, this is a convoluted legal filing intended to deconstruct the societal implications of parody. So the reader's attention is almost certainly wandering. And then we just list dozens and dozens of Latin legal terms. Mike Gillis, head writer for The Onion. That joke doesn't work.

If we say, buckle up, we are going to make fun of the form of an amicus brief, it really requires you to be Wile E. Coyote treading on air for a little bit. And then you look down and realize, oh no, this is not actually just an amicus brief. This is a parody of an amicus brief. The Onion's brief references Hustler v. Falwell a few times. For example, pointing out that not all humor is equally transcendent, but the quality and taste of the parody is irrelevant. The Onion's writers make an observation about Anthony Novak's case against the Parma Police Department and its officers. They write, This was only the latest occasion on which the absurdity of actual events managed to eclipse what the Onion staff could make up.

Ohio police officers arrest, prosecute man who made fun of them on Facebook might sound like a headline ripped from the front pages of The Onion, albeit one that's considerably less amusing because its subjects are real. The Supreme Court is expected to review Anthony Novak's case this month. Thank you. at criminal underscore podcast. Criminal is recorded in the studios of North Carolina Public Radio, WUNC. We're part of the Vox Media Podcast Network. Discover more great shows at podcast.voxmedia.com. I'm Phoebe Judge. This is Criminal. The number one selling product of its kind with over 20 years of research and innovation,

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