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Anthony Novak created a Facebook page parodying his local police department. The First Amendment right to lampoon the government is so rooted in our Nation’s tradition that the Supreme Court stated decades ago, “our political discourse would have been considerably poorer without [it].” Yet when Parma, Ohio police discovered Anthony’s  page, they couldn’t take the joke. Instead, they arrested Anthony, threw him in jail, and dragged him through a criminal trial (where he was acquitted, of course).  

When Anthony sued the officers responsible for violating his First Amendment right, both the trial court and the Sixth Circuit Court of Appeals let the officers off the hook. The reason? Qualified immunity, a judicial doctrine that routinely denies citizens a remedy for constitutional violations. Even for the most obvious First Amendment violations, courts often grant government officials qualified immunity just because they were the first official to behave so badly. That backwards outcome both chills protected speech and emboldens officials aiming to silence it. 

Thus, FIREis urging the Supreme Court to fix this problem. In an amicus curiae brief supporting Novak’s petition for certiorari, FIREshows a troublesome trend of officials—from police to college administrators—ignoring established First Amendment rights to punish and even criminalize protected expression. FIREargues that to deter these abuses and secure remedies for citizens who suffer them, the Supreme Court should make clear to courts that they should deny qualified immunity for officials who commit obvious First Amendment violations. As FIREpoints out, denying qualified immunity is especially important when officials have time to recognize the clear First Amendment principles limiting their acts, yet they still violate a citizen’s expressive rights. 

On February 21, 2023, the U.S. Supreme Court denied the petition for certiorari.