Do not joke in the US about the police: even a humorous post on a social network can end in prison

When it comes to Internet humor, not everyone understands jokes. But when the cops don't get the joke, the consequences can be more dire. USAToday.

Photo: IStock

Two recent civil rights lawsuits illustrate the growing threat to free speech. The risk to our First Amendment rights because of these decisions is no joke.

Facebook parody leads to arrest

In the first case, Anthony Novak of Parma, Ohio, was arrested and spent four days in jail for creating and maintaining a Facebook account that mimics his local police department. To make his parody work and make the page look convincing at first glance, he copied the name and profile picture of the official Facebook account of the local police department.

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Although some people may have been deceived by a cursory glance, a closer reading revealed the page's frivolous nature. The parody page lacked the Facebook designations for the authenticated government-linked page, and in just 12 hours of existence, the page had only seven posts.

The first six posts touted outlandish initiatives such as a free abortion program offered by the Parma police and a modest proposal to rid the city of the homeless population through a fasting program. Despite the outwardly absurd nature of the posts, Novak was arrested and charged with "subverting police operations" under Ohio state law.

Sheriff's team arrests man for making jokes about zombies

In the second case, Waylon Bailey of Rapids County, Louisiana was arrested after posting a fake warning to his Facebook friends in the early days of the pandemic. Bailey wrote that the Rapids County Sheriff's Office was instructed to shoot the "infected" on the spot. His post was completed with caps text, emoji and a hashtag referring to Brad Pitt's zombie movie World War Z.

In addition, the exchange of views between Bailey and his friends in the comments made it clear that his audience was in awe of the zombie joke.

Despite all this evidence of the innocuous nature of the post, Bailey was arrested and charged with violating "terrorist" statute Louisiana.

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Fortunately, Novak was eventually acquitted and Bailey's charges were later dropped. Both defendants then sued to receive compensation for their ordeal. But in both cases, the police used a doctrine developed by judges that insulates government officials from liability for violating constitutional rights.

Plaintiffs can only overcome so-called qualified immunity if they can identify a case with nearly identical facts as precedent and prove that the constitutional right in question was "clearly established" at the time it was violated. In both cases, the courts found that these requirements had not been met and denied relief.

However, both decisions were wrong because humor and parody are clearly protected by the First Amendment, in line with longstanding precedent. And freedom of speech, protected by the First Amendment, cannot be grounds for arrest.

If an adequate reader understands the statement as a joke, the government cannot criminalize this message in accordance with general laws prohibiting "violence" or "threats." This simple standard can be adapted to new mediums such as social media posts. The fact that some online audiences may be temporarily deceived does not deprive parody of First Amendment protection.

In both cases, the sane reader had enough context to think about. For Novak, this included the absurdity of the posts, the page's brief period of activity, and the lack of a Facebook designation for a government account. For Bailey, this also included the absurd nature of his post and how others interacted with him in the comments.

These remarks should have been enough for any reasonable officer to admit that the statements in question are legal.

The officers' arguments that, in their subjective opinion, the posts were meant to disrupt police operations or cause injury were no excuse, given the absurdity of the posts. Qualified immunity should not protect the police from not seeing what should have been understood by everyone.

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Novak is now filing a petition with the Supreme Court for a review of the case, and Bailey is filing an appeal with the US Court of Appeals for the Fifth Circuit. Both courts should make it clear that online humor is protected by the First Amendment to the same extent as humor written in any other medium, by professionals and amateurs alike.

The future of online posts should not depend on whether the police get the joke.

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