Fake Parma Facebook

Here's a side-by-side comparison of the Parma Police Department's official Facebook page, and a parody site, the creator of which was arrested and is charged with a felony.

(Facebook)

Anthony Novak

CLEVELAND, Ohio -- The 27-year-old charged with a felony for creating a fake City of Parma Police Facebook page was in jail for less than a day when the comments started on the department's real page.

"LOL you are a joke, arresting someone for speaking the truth," Litos Jose wrote on March 26 at 10:51 a.m.

"This is not 1984. Lawsuit coming," Shawn Nee wrote three minutes later.

Within days, over 300 comments appeared and that number would double.

Meanwhile, Anthony Novak, the 27-year-old who lives in Parma, was charged with a felony and had his electronics seized for making a fake Facebook page that had fewer than 100 followers and was active for less than a day.

"Wow...in a time when police have a bad enough image, you all make it worse. Actually you've given him grounds for a countersuit for restricting his First Amendment Rights," Kent Goertzen writes.

If history holds, and if a local American Civil Liberties Union attorney is correct, Goertzen's comment might actually hold merit.

Novak's due back in court Thursday.

How did police arrest a man for a Facebook page?

The police department says Novak's page affected the department's ability to provide public service.

He's charged with interfering with public service, a law that prohibits behavior that "does interrupt or impair television, radio, telephone, telegraph, or other mass communications service; police, fire, or other public service communications ... being used for public service or emergency communications."

The charge is often filed against people who cut phone lines or internet connections in course of other crimes like kidnappings or burglaries.

But if Cuyahoga County Prosecutor Timothy J. McGinty's office decides to pursue the case, it has a high bar to clear in the form of the U.S. Constitution, ACLU Attorney Elizabeth Bonham said.

The Cleveland branch of the American Civil Liberties Union is watching Novak's case. Bonham believes the Parma Police Department "quite clearly" infringed on Novak's First Amendment rights.

"The ability to make commentary using satire and parody is so important to our ability to express ourselves and hold the state accountable for its actions," Bonham said. "To show that speech can be unprotected, the state has a very, very high burden to show that it was actually and imminently going to cause harm.

Neither Parma Police spokesman Lt. Kevin Riley, nor Parma Mayor Timothy DeGeeter returned voice mails inquiring about the page.

Has this happened before?

Parma police aren't the first public organization to pursue criminal charges against someone for creating a look-alike social media account that skewers a public official or a government agency.

In 2014, 22-year-old Jon Daniel began posting messages using a twitter account featuring the mayor of his hometown of Peoria, Illinois.

Mayor Jim Ardis convinced the police chief to open a criminal investigation that led to a raid on Daniel's home.

The police charged Daniel with impersonating a public official, but a county prosecutor declined to prosecute the case, pointing out that the law requires a person to physically impersonate the official, not merely create an online account.

"He didn't try to pass any laws, he didn't try to get the wheels of government to turn or twist, he simply said some goofy stuff on twitter," Ed Yohnka, a spokesman for the ACLU of Illinois said. "One of the great lines of all time I thought, one of our briefs in our case opened with the line 'John Daniel hurt the mayor's feelings.'"

Daniel sued the city with support from the ACLU, eventually coming away with $125,000 in a settlement.

The damage didn't stop at the courthouse, though. Jim Ardis, the mayor who told police to arrest Daniel, became the subject of international attention.

Dozens of new parody accounts, featuring Ardis' name and likeness drew thousands of followers (Daniel's first account had fewer than 100 followers).

He was openly ridiculed by the Washington Post, which called the mayor someone "with apparently little understanding of how the Internet works..."

"I'm just floored," an at-large councilwoman said after Daniel's arrest. "When the mayor didn't want to have that kind of commentary going on ... it was crass, totally impolite -- but that's what our country is all about."

Ardis is up for reelection in 2017.

Is Novak protected by the First Amendment?

The police department says that Novak's fake Facebook page damaged the department and caused confusion among residents who rely on the page for information about public safety.

"Numerous complaints regarding the content of this page were made with Parma City Hall, Parma Law Department and Parma Police Department," a court report reads. "The fake Facebook page mirrored the real page which is used by the Parma Police to notify the public about issues regarding public safety."

Courts have historically gone to great lengths to protect speech, Bonham said, even in the face of potential criminal charges. The Supreme Court has ruled in the past that offensiveness is not sufficient cause to override First Amendment protections.

"The state has an extremely high burden to show that something like that is actually dangerous," Bonham said.

Novak did not label his Facebook page a parody. The page very nearly mimicked the active police department's page and featured slightly modified posts. One, for instance, mimicking a job posting, was modified to read "Parma Police Department is an equal opportunity employer, however, minorities are strongly encouraged not to apply."

But courts have found in other cases that parody doesn't have to explicitly include labels to earn constitutional protection, Bonham said. Sometimes the value of the parody is its likeness to its subject.

"Parody is a way of criticizing something, exposing something or communicating some message. In that way it is sort of comparable to art," Bonham said. "In that way it is also very different than shouting fire in a crowded theater because it is not dangerous."

Is Barbra Streisand involved?

One Facebook user posted to the Parma police page, asking if the department was aware of the "Streisand effect," a euphemism for a phenomenon that follows attempts to suppress internet speech.

In 2003, the actress and singer Barbra Streisand sued the California Coastal Records Project on grounds that public photos of her home on the Malibu coast was a violation of her privacy.

She lost the lawsuit, but not before photos of her home had been spread across the internet millions of times over.

Others have since been caught off guard.

Two years ago, in Washington state, police in the City of Renton sought a warrant to access information from a YouTube account that posted cartoon videos depicting a fictional police force.

The city and its police department claimed the videos mocked the department and revealed personnel issues, even though the videos did not name the department or any officers. A judge withdrew the warrant.

Former University of Northern Colorado Thomas Mink also wrote the blog Howling Pig which mocked economics professor Junius Peake. He created a fictional editor-in-chief for the blog named Junius Puke. Peake called police, who raided Mink's home and seized property.

Charges were dropped when Mink filed a civil rights lawsuit and eventually won a $425,000 settlement from the department that raided his home.

In both cases, the attempt to prosecute the individual content creators served only to attract further mockery.

It appears that Parma's Police Department may already be in the throws of a so-called Streisand Effect.

In response to Novak's arrest, an "Official City of Parma Police Department Press Release" was published online (it's fake), naming its author as Parma Police Lt. Kevin Riley, who did not return two voicemails on the subject.

The press release includes directives such as, "Motorcycle officers will not give you a coupon if you slap their helmets in traffic." and "Lick it or ticket" is not a genuine or authorized City of Parma Police Department public information campaign.

"To avoid criminal prosecution, any future "parodies" must be labeled prominently and expressed in language reasonably calculated to be understood easily by a City of Parma Police Department officer," the fake news release says.

The release did not specifically say whether or not it was, in fact, a parody.