This Just In: Sixth Circuit Declares Laughter Unconstitutional

Jared Hopper

If you fell for the title of this article, then you might just have fallen for Anthony Novack’s parody of his local police department’s Facebook page. Novack admits that his knockoff “looked like” the real thing, but he insists that “the posts . . . were clearly satire” and that he intended only to mock public officials in creating it.[1] How Novack views his own work, however, will not do much to protect him. The First Amendment undoubtedly protects parody, but whether speech can be classified as such “depends on somebody getting the joke; parody succeeds only by its recognition as parody.”[2] For courts, “somebody” is a reasonable person, but how exactly can we assess whether that person would classify something as parodic within a context like Facebook that is not historically linked to, nor inherently evident as, parody? This jurisprudence begs for uniform guidance from the Supreme Court on this standard as it relates to social media, particularly considering how Facebook parody is shaped over time by those interacting with it, and what lampooners like Novack can do to protect themselves without ruining the punchline.

On October 3, 2022, The Onion, the satirical website that describes itself as “America’s Finest News Source,” filed an amicus brief in support of Novack’s petition for certiorari to the Supreme Court to hear his § 1983 civil rights claims against the police officers who arrested and prosecuted him for his Facebook page.[3] The brief frames the alleged police retaliation as intuitively wrong, questioning whether, “Americans can be put in jail for poking fun at the government?”[4] At the motion to dismiss stage in 2019, the Sixth Circuit had no problem classifying the page as pure parody, recognizing that probable cause is essentially irrelevant in cases like Novack’s where protected speech is the “sole basis” for police action and finding for the parodist. In the more recent appeal, however, the Sixth Circuit dismissed Novack’s claims on the basis of qualified immunity because “the officers could reasonably believe that some of Novack’s Facebook activity was not parody, not protected, and fair grounds for probable cause.”[5] So which is it? Can someone be arrested for poking fun at the government, or can’t they?

The Sixth Circuit’s surprising pivot can perhaps be justified by making a distinction between Novack’s creation of the page itself and his conduct in response to others on his page, namely deleting user comments identifying it as parody and posting, verbatim, the police department’s warning of the knockoff, both supposedly part of an effort to “deepen his satire.”[6] But is this a good place to draw the line between protected and unprotected speech? After all, social media, as is clear in this case, is a unique platform in that audience members can spoil parody for others, so shouldn’t the Court’s analysis account for that? If “parody functions by tricking people into thinking that it is real,” as The Onion suggests, Novack’s responsive conduct can be seen as part of the work as a whole and therefore should not be treated separately from the initial creation of the page for the sake of the analysis. [7] He merely attempted to ensure that viewers’ interactions with his work did not unmask it as parody, thereby ruining its effect for future audience members. Especially considering that the Sixth Circuit characterized the Facebook page itself as parody without hesitation, it is hard to accept the Court’s finding that suddenly Novack’s activity became so clearly a departure from the evident nature of the page that one could reasonably believe that the jokester was actually trying to impersonate the cops.

Can the Sixth Circuit just not take a joke? Can parody only exist in static form? We need answers. SCOTUS, let’s, for once, take The Onion seriously and save the fundamental liberty to tell “a joke with a straight face.”[8]


[1] Institute for Justice, Facebook Jokester Hit with a FELONY for Police Parody–Onion Amicus, YouTube (Sept. 27, 2022), [] [] (last accessed Nov. 2, 2022).

[2] See Golb v. Attorney General of the State of New York, 870 F.3d 89, 102 (2d Cir. 2017); see also Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (standing for the general proposition that the parody is protected speech).

[3] Onion, [] [] (last accessed Nov. 2, 2022).

[4] Brief of The Onion as Amicus Curiae in Support of Petitioner at 2, Novack v. City of Parma, petition for cert. pending, No. 22-293, (filed Sept. 26, 2022).

[5] Novack v. City of Parma, 932 F.3d 421, 431 (6th Cir. 2019); Novack v. City of Parma, No. 22-293, slip op. at 6 (6th Cir. Apr. 29, 2022).

[6] Novack, No. 22-293, slip op. at 2.

[7] Brief of The Onion as Amicus Curiae in Support of Petitioner at 4, Novack v. City of Parma, petition for cert. pending, No. 22-293, (filed Sept. 26, 2022).

[8] Id. at 15.