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At a conference on Friday, the U.S. Supreme Court will consider the appeal of an Ohio man who was arrested and prosecuted for making fun of his local police department on Facebook. Well-known parody websites The Onion and The Babylon Bee offered their support for Anthony Novak’s First Amendment case, which was brought to the Court by the Institute for Justice (IJ). IJ’s appeal asks whether freedom of speech actually protects Americans or whether police can arrest you for what you post online.
“We are asking the Supreme Court to make it clear that qualified immunity does not trump free speech,” said IJ Senior Attorney Patrick Jaicomo. “The First Amendment protects the right of every American to poke fun at government officials. But if police can arrest you for your jokes, that right is meaningless.”
In March 2016, Anthony Novak created a parody Facebook page making fun of the Parma Police Department. Anthony’s page was modeled after the real department page. It had the same name and profile picture, but displayed the satirical slogan, “We no crime.” The posts were obvious parody and included things like the announcement of an “official stay inside and catch up with family day” to “reduce future crimes” during which anyone caught outside would be arrested.
The Parma Police Department did not appreciate Anthony’s criticism. Citing 11 calls made to a nonemergency line to either ask about or tattle on Anthony’s parody page, police spent weeks planning to arrest Anthony. Through a slow and deliberate process, police obtained a warrant for Anthony’s arrest, searched his apartment, seized his electronics, and charged him with a felony under an Ohio law that criminalizes using a computer to “disrupt” “police operations.” Anthony had to spend four days in jail before making bail. He was prosecuted, but after a full criminal trial, a jury found him not guilty.
But when Anthony tried to vindicate his rights by filing a civil rights lawsuit, the 6th U.S. Circuit Court of Appeals refused to hold the police officers accountable for their actions. Despite the clear violation of Anthony’s First and Fourth Amendment rights, the Sixth Circuit granted the officers qualified immunity.
Anthony’s case is not the only example of police using their power to punish a joke. IJ is also representing Waylon Bailey of Alexandria, Louisiana, in a suit against the Rapides Parish Sheriff and one of its detectives. In March 2020, Waylon posted a joke equating the developing COVID-19 pandemic to a zombie outbreak. His post included emoji and referenced Brad Pitt’s starring role in the movie World War Z. Sheriff’s deputies showed up at Waylon’s home, arrested him and charged him under an anti-terrorism law.
Like Anthony, Waylon sued over the violation of his constitutional rights. But, like the officers in Anthony’s case, the detective who arrested Waylon was granted qualified immunity by a federal trial court. IJ is now appealing Waylon’s case to the 5th U.S. Circuit Court of Appeals.
Anthony Novak was arrested and prosecuted for making fun of his local police department with a parody Facebook page. He was acquitted by a jury and sued the city and its officers over the violation of his First Amendment rights. That suit was denied after courts granted the officers qualified immunity. Today, the U.S. Supreme Court declined to hear Anthony’s appeal, which was filed by the Institute for Justice (IJ).
“Sadly, the U.S. Supreme Court decision today leaves in place a ruling that allows qualified immunity to override the free speech rights of every person in Ohio, Michigan, Kentucky, and Tennessee,” said IJ Senior Attorney Patrick Jaicomo. “Anthony’s Facebook page was the type of government parody that the founders intended to protect through the First Amendment, which is why The Onion and The Babylon Bee supported our appeal. That everyday people can see the inside of a jail cell for their jokes on Facebook is yet another reason why qualified immunity must come to an end.”
“I’m disappointed the Supreme Court won’t consider my case both because I won’t be able to hold the officers accountable for their violation of my rights, but also because I worry about what will happen to others who poke fun at the powerful,” said Anthony. “The government shouldn’t be able to arrest you for making a joke at its expense.”
Anthony’s case is not the only example of police using their power to punish someone for telling a joke. IJ is also representing Waylon Bailey of Rapides Parish, Louisiana, in a suit against the local sheriff’s office and one of its detectives. In March 2020, Waylon posted a joke equating the developing COVID-19 pandemic to a zombie outbreak. His post included emoji and referenced Brad Pitt’s starring role in the movie World War Z. Even though the post was obviously a joke, sheriff’s deputies showed up at Waylon’s home, arrested him and charged him under an anti-terrorism law.
IJ also advocates for a legislative solution to the problems caused by qualified immunity, the Protecting Everyone’s Constitutional Rights Act. In recent years, Colorado, New Mexico and New York City have enacted laws that ban qualified immunity as a legal defense for law enforcement officers.
In a partial victory for police accountability, the U.S. Court of Appeals for the Fourth Circuit held that the First Amendment protects a passenger who livestreams the traffic stop of the car he is traveling in. EFF filed an amicus brief in Sharpe v. Winterville in 2021 in support of the plaintiff. Unfortunately, the Fourth Circuit’s opinion is not a total win for First Amendment rights because the court curtailed the plaintiff’s ability to hold the individual officers accountable.
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ARLINGTON, Va.—Today, the Institute for Justice (IJ) submitted an amicus brief in a lawsuit before the 1st U.S. Circuit Court of Appeals. The case seeks to overturn a lower court’s ruling that shielded school administrators in Gloucester, Massachusetts, from accountability after they threatened a parent with legal action for recording and posting his public interaction with the school superintendent’s office.
In March 2022, Inge Berge wanted to buy tickets to attend his daughter’s middle school play, but he missed out on the tickets because the school was limiting capacity due to COVID-19. Upset that he might miss his daughter’s play, he went to the superintendent’s office—which was open to the public—to ask if there was any way to create an exception so he could buy a ticket. Berge openly and obviously recorded his visit to the superintendent’s office and his discussion with the officials. He remained calm as he spoke with the officials, two of whom refused to talk while being recorded, and a third who said he would look into the situation. But later that day, after Berge posted the interaction on Facebook, the superintendent’s office sent him a letter demanding he remove the video or face legal repercussions. This blatant effort to suppress Berge’s speech was based on a statute that only prohibits “secret” recordings—but the letter itself made clear that there was nothing secret about what Berge did.
Knowing his rights had been violated, Berge filed a First Amendment retaliation lawsuit. The school then rescinded its letter demanding he take the video down, but the district court dismissed Berge’s retaliation claims against the school administration. The court ruled that the officials were shielded by qualified immunity—a judicial doctrine that shields government officials from civil liability unless the unconstitutionality of their conduct was “clearly established”—because the facts of this case did not exactly match those of any prior case. As explained in IJ’s brief, that is not how the qualified immunity doctrine works, even in the face of its unjustified expansions.
“Some rights violations are so obvious that plaintiffs don’t have to go on scavenger hunts for previous cases with similar facts in order to move forward with a lawsuit,” said IJ Attorney Jaba Tsitsuashvili. “School officials knew their threat of legal action against Mr. Berge was baseless, which is why they immediately rescinded their threat once he fought back.”
IJ’s brief urges the First Circuit to overturn the lower court’s decision granting school officials qualified immunity and to allow Berge’s First Amendment retaliation claims to move forward.
“Premeditated retaliation against someone for their First Amendment-protected speech is not the type of ‘split-second’ decision that even proponents of qualified immunity ever contemplated the doctrine protecting,” added IJ Litigation Fellow Anna Goodman.
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Police officers have many reasonable protections from litigation. But qualified immunity extends protection to officers who violate the Constitution in ways that are objectively unreasonable even when viewed from an officer’s heat‐of‐the‐moment perspective.
The Fourth Amendment and its related jurisprudence already protect police officers (and other public officials) who make hair‐trigger mistakes or misjudgments that were reasonable at the time. That’s doubly true if an officer’s life is at risk. Most people would agree that these protections are both reasonable and warranted. And indeed, even without qualified immunity, police would still be shielded from liability for good‐faith mistakes—especially those made in violent encounters.
But the arbitrary, court‐invented doctrine of qualified immunity creates a means for departments and police officers to escape accountability for abhorrent acts via a standard that is completely divorced from any analysis of whether an officer’s actions are reasonable—or malicious.
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Judge Don Willett of the Fifth Circuit has long been one of the foremost judicial critics of qualified immunity and a leading voice urging the Supreme Court to reconsider this unjust and unlawful doctrine. In 2018, he wrote a separate opinion “concurring dubitante” in a decision granting immunity to register his concern with “the kudzu‐like creep of the modern immunity regime” and explaining how the doctrine “smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”
Over the last few years, Judge Willett has written several additional opinions elaborating on various concerns with the doctrine, both in terms of its underlying justifications and practical application. And last week, in a case called Rogers v. Jarrett, he added to this judicial anthology, with a concurring opinion highlighting Professor Alex Reinert’s recent scholarship, which explains how the legal justifications for qualified immunity are even weaker than previously believed.
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I wonder what she thinks of the ones who only violate the Constitution in the regular ways?“Officers who egregiously violate the constitution should not be shielded by qualified immunity,” said IJ Attorney Marie Miller.
Officers who violate the constitution should not be shielded by qualified immunity,
... in Judge Willett's dissent yesterday in Villarreal v. City of Laredo (en banc):[O]ne of the justifications so frequently invoked in defense of qualified immunity—that law enforcement officers need "breathing room" to make "split-second judgments"—is altogether absent in this case. This was no fast-moving, high-pressure, life-and-death situation. Those who arrested, handcuffed, jailed, mocked, and prosecuted Priscilla Villarreal, far from having to make a snap decision or heat-of-the-moment gut call, spent several months plotting Villarreal's takedown, dusting off and weaponizing a dormant Texas statute never successfully wielded in the statute's near-quarter-century of existence. This was not the hot pursuit of a presumed criminal; it was the premeditated pursuit of a confirmed critic.
Also, while the majority says the officers could not have "predicted" that their thought-out plan to lock up a citizen-journalist for asking questions would violate the First Amendment—a plan cooked up with legal advice from the Webb County District Attorney's Office, mind you—the majority simultaneously indulges the notion that Villarreal had zero excuse for not knowing that her actions might implicate an obscure, never-used provision of the Texas Penal Code. In other words, encyclopedic jurisprudential knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign) ignorance of bedrock constitutional guarantees.
In the upside-down world of qualified immunity, everyday citizens are demanded to know the law's every jot and tittle, but those charged with enforcing the law are only expected to know the "clearly established" ones. Turns out, ignorance of the law is an excuse—for government officials. Such blithe "rules for thee but not for me" nonchalance is less qualified immunity than unqualified impunity. The irony would be sweet if Villarreal's resulting jailtime were not so bitter, and it lays bare the "fair warning" fiction that has become the touchstone of what counts as "clearly established law."
Last week, a jury determined that Waylon Bailey’s constitutional rights had been violated and ordered the Rapides Parish Sheriff’s Office to pay $205,000 in compensatory and punitive damages. During the COVID-19 pandemic Waylon made a joke about the virus, zombies, and the sheriff’s department on Facebook. Hours later, a team of armed sheriff’s deputies, dressed in tactical gear, arrested Waylon.
The charges were later dropped, but when Waylon sued the department and deputy responsible for the arrest, a federal court granted qualified immunity and dismissed the suit. Waylon’s trial attorneys at Bizer & DeReus teamed up with the Institute for Justice (IJ), a national public interest law firm, and appealed to the 5th U.S. Circuit Court of Appeals. After argument by IJ, the 5th Circuit reversed the dismissal, saying Waylon’s speech was protected by the First Amendment. This cleared the way for a jury to consider the case and award damages.
“I feel vindicated that the jury agreed that my post was satire and that no reasonable police officer should have arrested me for my speech,” said Waylon Bailey. “This verdict is a clear signal that the government can’t just arrest someone because the officers didn’t like what they said. I’d like to thank my lawyers for their hard work and determination.”
“It is telling that it took less than two hours for a jury of Mr. Bailey’s peers in Western Louisiana to rule in his favor on all issues,” said Andrew Bizer, Bailey’s trial attorney. “The jury clearly understood that the Facebook post was Constitutionally protected speech. The jury’s award of significant damages shows that they understood how Mr. Bailey’s world was turned upside down when the police wrongly branded him a terrorist. We are delighted with this result.”
“Our First Amendment rights aren’t worth anything if courts won’t hold the government responsible for violating them,” said IJ Attorney Ben Field. “We are proud to have played a key part in ensuring that Waylon Bailey got justice at the appellate court after he was unconstitutionally arrested for his speech. His case now stands as a warning for government officials and as a precedent that others can use to defend their rights.”
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