June 27, 2022

Volume XII, Number 178

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June 24, 2022

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July Wrap-Up: First Amendment Arrest Edition

The Sixth Circuit wrapped up July with two decisions addressing similar protest-arrest claims under the First Amendment.  But the panel opinions and outcomes looked quite different.

Parma police parody: 

Anthony Novak was fed up with the Parma Police Department. So he created a “farcical Facebook account” (i.e., “meme” page) designed to look like the police department’s official page. Novak polarized his audience with posts describing, say, rehabilitated sex-offender piglet-cops. Some “thought it was ‘the funniest thing ever.’”

Others less so. The police department investigated, issued a press release, subpoenaed Facebook, obtained a search warrant, and eventually nabbed the anonymous author. It arrested Novak for impairing police functions.  Ohio Rev. Code § 2909.04(B).

Novak stood trial and was acquitted. Then he unleashed a civil complaint that any professor who’s written a First Amendment exam would envy: retaliation, prior restraint, anonymous speech, malicious prosecution, Privacy Protection Act, conspiracy, supervisory liability. The works.

The district court denied the officers’ attempt to dismiss on qualified-immunity grounds. In Novak v. City of Parma, a unanimous Sixth Circuit panel (Thapar writing; Merritt and Readler joining) affirmed in part:

Novak’s page delighted, disgusted, and confused. Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a “most gullible person on Facebook” standard. The First Amendment does not depend on whether everyone is in on the joke.

The appeal implicates many fascinating First Amendment questions, and is well worth a read. Some questions are not yet squarely presented, given the motion-to-dismiss/qualified-immunity posture—such as whether public officials may delete Facebook posts (see, e.g., Morgan v. Bevin, 298 F.Supp.3d 1003 (E.D. Ky. 2018) (denying preliminary injunction)) and whether probable cause defeats a retaliation claim based solely on protected speech and/or an infrequently enforced statute.

For now, each side walks away with something: the anonymous-speech, public-censorship, and “right to receive speech” claims fail because the officers didn’t violate clearly established law, while the retaliation, prior-restraint, search-and-seizure, malicious prosecution, supervisory-liability, conspiracy, and privacy act claims survive.

Breakfast of champions (of free speech): 

In 2015, the Fairness Commission protested the Kentucky Farm Bureau’s ham breakfast at the State Fair in Louisville. Members wearing t-shirts enumerating allegedly discriminatory Farm Bureau policies stood up during the breakfast (outside a designated “protest zone”) and refused to leave.

As in Parma, officers arrested the protesters. But in Louisville, prosecutors dropped the charges. As in Parma, the arrested protesters sued. But in Louisville, the trial court held qualified immunity protected the arresting officers.

(But wait, there’s more!) As in Parma, the Sixth Circuit in Hartman v. Thompson took a close look at the Supreme Court’s recent decision in Nieves v. Bartlett (probable cause to arrest (usually?) defeats a claim for First Amendment retaliation claim). But unlike the unanimous Parma decision, Hartman resulted in a fractured decision.

Judge Suhrenreich’s majority opinion affirmed the district court’s judgment on qualified-immunity and merits grounds: probable cause existed to arrest the plaintiffs for disrupting a meeting, so the § 1983 claims failed.

Judge Bush concurred in part: probable cause should take into account “all the facts and circumstances within the officers’ knowledge” to evaluate whether “a man of reasonable caution [would] believe that an offense” had been committed. Because the Fairness Campaign also had stood in protest during the 2014 breakfast, the officers had probable cause in 2015.

Judge Moore, however, dissented: because accounts of the protesters’ arrest varied, genuine issues of material fact precluded summary judgment. She also disagreed that the officers’ restriction of the Fairness Campaigners to a protest zone had properly been deemed a viewpoint-neutral time/place/manner restriction.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 221
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About this Author

Benjamin Beaton Litigation Attorney Squire Patton Boggs Cincinnati, OH
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Benjamin Beaton is co-chair of the Appellate & Supreme Court Practice. He handles complex appeals, regulatory disputes and law-intensive trial proceedings. Ben has authored more than a dozen briefs at the US Supreme Court, where he previously served as a law clerk. He has drafted dozens more in the federal courts of appeal and state supreme courts, and regularly confers with trial and in-house counsel regarding appellate and motions strategy. Chambers has noted the firm’s “well-resourced appellate team, with notable experience in disputes heard before the Sixth Circuit.” The...

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Lauren S. Kuley Appellate & Supreme Court Attorney Squire Patton Boggs Cincinnati, OH
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Lauren Kuley is co-chair of the Appellate & Supreme Court Practice. She leads complex appeals and critical motions practice in courts nationwide. She simplifies complex issues and develops creative arguments to curtail legal disputes and overturn bad outcomes. Deploying this strategy, Lauren has argued and won reversals of significant verdicts on appeal and obtained dismissal of high-stakes claims at the pleading stage in federal courts. In the US Supreme Court, Lauren authored the briefs leading to a unanimous reversal for a Fortune 500 company. Lauren previously served in the Ohio...

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