The US Supreme Court agreed to hear an interesting case involving a familiar name “Anthony Novak”. Anthony Novak in Ohio was arrested, prosecuted and found not guilty of breaking local law for making Facebook posts that annoyed police. Now he wants to sue police but federal appeals court ruled that officers are protected by qualified immunity.
The case earned national media attention this week when The Onion filed a brief in support of Novak. The Onion argues that parody writers must be protected from an unjust prosecution and that a lawsuit is their only recourse, This may be only hype, but we probably would not have heard of the case without this distraction.
While this Anthony Novak in Ohio is not related to me in any way, I see three interesting personal parallels:
1) I was born “William Anthony Novak” and was listed as Anthony in my school records. I legally changed the name to “Tony” in 1995 after the Pennsylvania Securities Commission threatened criminal charges because I published under the “fictitious name” of Tony Novak. This was a ridiculous legal assertion and overreach by the government, not unlike the current Ohio case. In my case, changing my name immediately fixed the problem. It never crossed my mind to seek damages from the government for their ridiculous action, as my Ohio namesake did.
2) I was also prosecuted for misunderstood Facebook posts. That case was here in Cumberland County, New Jersey around 2019. My posts were not parody, as in the Ohio case. My posts were straightforward attempts to promote local businesses here at the bayshore within my social media circles in the Philadelphia are. I was living in PA at that time. But my posts annoyed a powerful local businessman, now deceased, who thought I was attempting to cut into his business. My posts were misconstrued by law enforcement and the local prosecutor as an attempt by me to sell products that I was not licensed to sell. The state spent an absurd amount on the criminal investigation. The local prosecutor then took a pre-internet era state law at face value and concluded that an a person promoting his clients and neighbors on Facebook could be held legally responsible for the record keeping requirements of those licensed businesses. Absurd. But it was cheaper to pay the small fine than to fight the charges. Sometimes, it is just too expensive to make these assertions in court to prove yourself innocent.
3) Over the years, our local government in Downe Township, NJ has faced several cases of freedom of expression. One of those cases involved me years ago, around 2005. In each case, residents complained about a neighbor who expressed an unpopular opinion. In each case, the mayor, now former mayor, showed restraint in upholding first amendment rights to free expression of locally unpopular opinions. I commend government’s restraint, despite what I assume was a high level of stress and annoyance that they faced.
FWIW, I think that SCOTUS will allow the immunity from prosecution for police to stand in the Anthony Novak case. It’s not the officers’ fault that the law they were enforcing was poorly drafted and probably unconstitutional. The police were not alone in their misinterpretation of the defendant’s legal rights. The prosecutor and the judge were also wrong. That’s why we have laws to protect police from civil lawsuits. Notwithstanding any maligned behavior by the officers (I’m not familiar with this aspect of the case if it is even an issue), then federal appeals court should be affirmed and Novak does not get to sue.
The appeals court opinion sums it well in its opening paragraph: “Anthony Novak thought it would be funny to create a Facebook page that looked like the Parma Police Department’s. The Department was not amused. In fact, officers arrested Novak and prosecutors charged him with a state crime. Novak was acquitted at trial, and he now argues his constitutional rights were violated in the ordeal. But because the officers reasonably believed they were acting within the law, Novak can’t recover.”
NPR after The Onion filing: https://www.npr.org/2022/10/04/1126699814/the-onion-supreme-courts-parody-law-enforcement-anthony-novak-parma