petitions of the week
on Oct 14, 2022
at 6:10 pm
The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.
In a case that prompted satirical news outlet The Onion to file its first-ever amicus brief in the Supreme Court, an Ohio man sued police for violating his constitutional rights when they arrested him for creating a Facebook page parodying the local police department. This week, we highlight cert petitions that ask the court to consider, among other things, whether those officers are entitled to qualified immunity.
Anthony Novak, a resident of Parma, Ohio, created a Facebook page with the same name, cover photo, and profile picture as the city police department’s page. In the 12 hours Novak’s page was live, it went viral thanks to six satirical posts announcing, for example, a new hiring initiative “strongly encouraging minorities not to apply” and a “no means no” fair at which residents could remove their names from the sex-offender registry by completing a series of puzzles.
After obtaining a warrant to investigate the owner of the page, police arrested Novak under an Ohio law that makes it a felony to “disrupt, interrupt, or impair” police operations. Novak was acquitted at trial. He then sued the officers who arrested him for violating his First Amendment right to freedom of speech and his Fourth Amendment right to freedom from unreasonable searches and seizures.
The U.S. Court of Appeals for the 6th Circuit granted the officers qualified immunity. Before taking down the page, Novak had copied a disclaimer posted on the department’s real Facebook page decrying the fake account and deleted user comments that his own page was a parody. Because no court case has “clearly established” that those actions are protected speech, the 6th Circuit held, the officers “could reasonably believe that some of Novak’s Facebook activity was not parody” protected under the First Amendment.
In Novak v. City of Parma, Ohio, Novak asks the justices to clarify when qualified immunity is available if the justification for probable cause relies on speech. He argues that his arrest was retaliation for his speech, and that the officers’ conduct was an obvious constitutional violation not entitled to qualified immunity. Novak also points out that the 6th Circuit originally sided with him at an earlier stage in the case: “Imagine if The Onion,” Judge Amul Thapar wrote, “were required to disclaim that parodical headlines … are, in reality, false.”
Answering that call, The Onion filed an amicus brief in support of Novak’s petition from the court of appeals’ subsequent ruling for the officers. In urging the court to take up the case, the magazine tells the justices that the 6th Circuit’s ruling “threatens to disembowel a form of rhetoric that has existed for millennia, that is particularly potent in the realm of political debate, and that, purely incidentally, forms the basis of The Onion’s writers’ paychecks.”
A list of this week’s featured petitions is below:
Donziger v. United States
Issues: (1) Whether Federal Rule of Criminal Procedure 42(a)(2) authorizes judicial appointments of inferior executive officers; and (2) if so, whether such appointments violate the appointments clause in Article II, Section 2 of the Constitution.
Pavlock v. Holcomb
Issues: (1) Whether a “judicial taking” under the Fifth and 14th Amendments is a cognizable cause of action; and (2) whether a property owner who is deprived of property under the authority of a state court decision may seek prospective injunctive relief in federal court to halt encroachment on their property by state officials acting under the authority of that decision.
Novak v. City of Parma, Ohio
Issues: (1) Whether an officer is entitled to qualified immunity for arresting an individual based solely on speech parodying the government, so long as no case has previously held the particular speech is protected; and (2) whether the court should reconsider the doctrine of qualified immunity.
County of Ontario, New York v. Gunsalus
Issue: Whether the U.S. Court of Appeals for the 2nd Circuit erred in refusing to extend the holding of BFP v. Resolution Trust Corp. to a lawfully conducted tax foreclosure, where New York tax foreclosure law provides for ample notice, opportunity to cure and judicial oversight of the process, and where there is no evidence of a clear and manifest intent by Congress to allow 11 U.S.C. § 548 to impinge upon the important state interests in securing real estate titles and collecting real property taxes.