by Dennis Crouch
I assume that you have read The Onion amicus brief in Novak v. City of Parma Ohio. If not, please do it is a total classic.
The case involves Anthony Novak who created a parody Facebook page to mock his the local police department in Parma, Ohio. The posts were clearly parody after perhaps a bit of initial confusion. Once Novak heard that the police were upset, he took down the posts (after 12 hours online). Still, Novak was eventually arrested, jailed, and prosecuted for disrupting police functions. His home was searched, and all of his electronic equipment was seized. A jury eventually acquitted Novak. He then turned around and sued for violation of his constitutionally protected civil rights. But, the courts found the arresting officers entitled to qualified immunity. Novak v. City of Parma, Ohio, 33 F.4th 296 (6th Cir. 2022).
The petition for certiorari asks two questions:
- 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.
- Whether the Court should reconsider the doctrine of qualified immunity.
Novak Petition. Novak’s basic position is that the “police shouldn’t be able to arrest you for making a joke at their expense.”
One problem with Novak’s posts is that over the past few years it has become more and more difficult to tell the difference between satire and reality. The Sixth Circuit suggested a preemptive “THIS IS PARODY” warning, but that doesn’t seem quite right. For parody to really work, there needs to be some initial source confusion — the parody has to be initially plausible to get full comedic effect.
Over at The Onion, journalists are sad-proud about the fact that they regularly forecast future events with their “reporting.” They give the example of their 2017 post on nuclear codes sitting around at Mar-A-Lago. Those folks are obviously concerned that their work may also be held
The Onion files this brief to protect its continued ability to create fiction that may ultimately merge into reality. As the globe’s premier parodists, The Onion’s writers also have a self-serving interest in preventing political authorities from imprisoning humorists. This brief is submitted in the interest of at least mitigating their future punishment.
Onion Brief. According to the Supreme Court docket, the court has twice rejected the Onion Brief, but I’m confident that the court went ahead and read the thing.
Let me know what you think.
= = =
I feel compelled to mention that I spent a summer living in Parma Ohio (in one of the houses below). I was 19 and just had a 10-speed bicycle that I rode to work each day. As far as I recall, there was nothing good in that town; and it was worse for someone without a car. I also spent an afternoon in Parma Italy. This was after a month tooling around northern Italy, and we were craving something American. So, we stopped at the Parma Ikea and had Swedish Meatballs.
Pierogies, kielbasa, white socks, t-shirts, Polish Polka accordion bands, and cheap cigars. Whole stole the Kieshka?
Saw recently in the third circuit a case where a judge gave a county engineer qualified immunity, after the engineer had pulled over and detained two trucks for a whole afternoon.
I wonder about the whole state.
In contrast to states like California, New York, and Illinois, you mean?
Can one of the Constitution lovers on this site remind me again where qualified immunity is in the Constitution. Thanks.
Not only is it nowhere in the Constitution, the Court does not even pretend to ground qualified immunity in Constitutional law. Rather, the grounding of the qualified immunity doctrine derives from an implicit exception to §1983 tort liability that accords with the common law doctrines of officer immunity. Imbler v. Pachtman, 424 U.S. 409, 418 (1976).
In other words, Congress does not need to amend the Constitution to change qualified immunity. A simple revision to the §1983 statutory text would be enough.
I am out of my depth. When I read 1983 the only exception I see is “ except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity”. Are police judicial officers?
Police officers are definitely not judicial officers. The logic of qualified immunity is not that §1983 explicitly immunizes officers, but rather that the Court was just sure that Congress must have meant to include that common law immunity in the statute. In other words, it depends on a sort of hermeneutic of statutory construction that should be depressingly familiar to those familiar with patent law.
In any event, the important bit is that qualified immunity is not grounded in the constitution. It would not require a constitutional amendment to abrogate it.
Ohio is a hell hole of a state , and this case proves it. Shocking that the city would do something like that; we really have turned into the USSR.
“ One problem with Novak’s posts is that over the past few years it has become more and more difficult to tell the difference between satire and reality. ”
That’s not a “problem with Novak’s post.” That’s a problem with our media/journalism/pundit class treating the massive incessantly flowing river of rightwing b.s. like it’s NOT b.s. (because “that’s only fair”) and a problem with failing to call out fascist propaganda for what it plainly is.
I know this is probably difficult for someone embedded in Missouri, a state where a pathological liar who told people with covid to drink bleach is both popular and respected.
Could you be any more tone deaf to the issue at hand?
The Prophet is not tone deaf. he is blinded by hate.
Can you provide the quote regarding the “drinking” of “bleach?” There is no such quote. People who live in glass houses should not throw stones.
Parma: the land of pink plastic flamingos and inscrutable garage door appliques…
Comments are closed.