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SCOTUS declines to hear case of Qualified Immunity vs Free Speech

bernorange

By bernorange
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bernorange

bernorange 8348

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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.

Reference links included in source:

https://ij.org/press-release/will-the-supreme-court-take-up-facebook-police-parody-case/

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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.

https://ij.org/press-release/supreme-court-rejects-appeal-of-man-arrested-for-facebook-police-parody/

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TwiceHorn

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17 minutes ago, chainsaw said:

https://www.texastribune.org/2023/01/06/first-amendment-laredo-journalist/

That's pretty bizarre.  The three-judge panel, led by neofascist Trump appointee James Ho, ruled in her favor.

But in true Fifth Circuit fashion, fucking Priscilla Owen dissented.

Edith, Edith, and Priscilla.  Christ on a cracker.

 

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chainsaw

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6 minutes ago, TwiceHorn said:

That's pretty bizarre.  The three-judge panel, led by neofascist Trump appointee James Ho, ruled in her favor.

 

Maybe SCOTUS would prefer to take this one up than the hilarious Ohio prankster. I need a glimmer of hope here

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TwiceHorn

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2 minutes ago, chainsaw said:

Maybe SCOTUS would prefer to take this one up than the hilarious Ohio prankster. I need a glimmer of hope here

One of the things about the Novak case is that it involves a parody, which is sorf of a developing area of First Amendment law.

The gordiloca case is perhaps a little clearer cut in terms of traditional violation of First Amendment rights.

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chainsaw

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4 minutes ago, TwiceHorn said:

One of the things about the Novak case is that it involves a parody, which is sorf of a developing area of First Amendment law.

The gordiloca case is perhaps a little clearer cut in terms of traditional violation of First Amendment rights.

Novak supposedly caused "confusion" that "diverted resources" which is bullshit but is an argument I could see someone making with a straight face.

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bernorange

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5 minutes ago, bernorange said:

...

How long does it normally take for the court to issue a ruling after a hearing?

Different case, but sort of answers my question...

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... the Fifth Circuit ... would be hearing the appeal on the merits in July.  ...

Yet more than three months later the country, ... are still waiting for that decision.  The delay is almost as inexplicable as it is problematic.   

It’s inexplicable because the court surely could have issued an opinion by now.  The Fifth Circuit has said it “attempts to reach a decision within 60 days after” oral argument, and in 2014, it met that goal, with the median time between oral argument and opinion in civil cases just 1.8 months. ...

https://thehill.com/blogs/congress-blog/judicial/257487-time-for-the-fifth-circuit-to-rule/

So they can essentially take all the time they want?  What's to prevent them from waiting indefinitely to issue a ruling?  Seems like an administrative loophole that could be used to rathole cases they deem problematic.

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chainsaw

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3 minutes ago, horn4life said:

Qualified Immunity means, I woke up afraid, I was afraid for my life, I can do anything I want!

I am terrified of journalists. I need to spend six months deliberating over what excuse I can cook up to have them arrested. No, I don't care if it's an obviously unconstitutionally vague statute that we've never charged anyone under in the history of my office. I want the journalist cuffed and humiliated.

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TwiceHorn

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1 hour ago, bernorange said:

Different case, but sort of answers my question...

https://thehill.com/blogs/congress-blog/judicial/257487-time-for-the-fifth-circuit-to-rule/

So they can essentially take all the time they want?  What's to prevent them from waiting indefinitely to issue a ruling?  Seems like an administrative loophole that could be used to rathole cases they deem problematic.

That actually happens sometimes in the trial courts, especially at the state level (meaning tough case, long-delayed decision).  I have seen people try to go to the appellate courts to force a trial court to rule.

It's less common in the federal courts and less common still in the courts of appeal.  Sixty days is probably about right.

An en banc decision, where the whole court hears it and has to reach some kind of consensus, can be a little longer.

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DDD Dad

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28 minutes ago, TwiceHorn said:

That actually happens sometimes in the trial courts, especially at the state level (meaning tough case, long-delayed decision).  I have seen people try to go to the appellate courts to force a trial court to rule.

It's less common in the federal courts and less common still in the courts of appeal.  Sixty days is probably about right.

An en banc decision, where the whole court hears it and has to reach some kind of consensus, can be a little longer.

When I clerked on the 11th, the only real deadline was getting shamed by other members of the court.  GSA (I think, or it was administrative office of the federal courts) circulated a report showing how many cases each judge had and for how long (basically like an A/R aging schedule).  My judge was strict about us turning around opinions.  Barring some complication we were expected to have oral argument opinions drafted for circulation to the panel before we went to the next setting (which typically happened every six weeks or so).

He used to always say, "write fast."

/csb

After opinion is drafted it then depends on how quickly the other two panel members (or full court if en banc) take either to sign off on the opinion or draft concurrences or dissents.  Average cases would have opinions issued around 90 days after oral argument, sometimes sooner, but usually around 3 months.

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bernorange

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Not SCOTUS, not the cases mentioned already, but another case of 1st amenedment and qualified immunity...

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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.
...

https://www.eff.org/deeplinks/2023/02/fourth-circuit-individuals-have-first-amendment-right-livestream-their-own-traffic

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Pig Bellmont

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On 2/22/2023 at 10:46 AM, bernorange said:

So they can essentially take all the time they want?  What's to prevent them from waiting indefinitely to issue a ruling? 

Yes to the first question. And not much to the second question. Maybe case management statistics, internal pressure to resolve cases, or just decorum? Certainly nothing binding. 

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bernorange

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Yes another case (not SCOTUS) on the topic:

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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.

https://ij.org/press-release/gloucester-parent-threatened-with-legal-action-for-recording-interaction-with-school-officials-appeals-case-ij-submits-brief/

 

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