(CN) — It started as a joke, albeit not a particularly good one.
On March 20, 2020, as the Covid-19 pandemic was first sweeping across the nation, 27-year-old Waylon Bailey of Forest Hills, Louisiana, one of likely millions of people who regularly employ sarcasm or parody in their online comments, logged onto Facebook and authored a new post.
“SHARE SHARE SHARE,” he wrote, followed by four exclamation points. “JUST IN: RAPIDES PARISH SHERIFF’S OFFICE HAVE ISSUED THE ORDER, IF DEPUTIES COME INTO CONTACT WITH ‘THE INFECTED’ SHOOT ON SIGHT …. Lord have mercy on us all.”
Bailey followed it up with two hashtags, #Covic9teen and #weneedyoubradpitt, the latter being a reference to the 2013 dystopian zombie film “World War Z,” where humanity is decimated by a lethal virus. Then he added two emojis, a shocked face and a large red X, before pressing “post.”
Within a couple hours, a few friends chimed in, indicating they understood the humor. But at the Rapides Parish Sheriff’s Office — whose workload for the day was otherwise undisclosed in subsequent court documents — Detective Randell Iles quickly reviewed the post, determined it violated a state statute against terrorism and assembled a SWAT team to arrest Bailey.
The same day, without a warrant, the SWAT team arrived at Bailey’s house with guns drawn and took Bailey into custody, with one deputy remarking his next post “should be to not fuck with the police.” Bailey was charged with a felony and ordered to remove the post. The deputies falsely warned him the FBI was involved, while they also issued a news release about the arrest.
Bailey’s fiancé posted $1,200 bail, but after a review the district attorney refused to prosecute and the charge was dropped. Still, Bailey was left with expenses and emotional trauma. Afterward, he was diagnosed with anxiety.
In September 2020, Bailey filed a lawsuit against Iles and Rapides Sheriff Mark Wood, alleging violations of the First and Fourth amendments, plus false imprisonment and malicious prosecution.
In June 2022, U.S. District Judge David Joseph, a Donald Trump appointee, dismissed the complaint, finding Bailey’s speech wasn’t protected because it constituted “incitement” and both Iles and Wood were protected by qualified immunity.
On Wednesday, the parties appeared in the New Orleans-based Fifth Circuit, where Bailey’s attorney Benjamin Field argued the lower court should not have thrown out the case.
“The district court held that Bailey has no constitutional protection for his speech based on long discredited World War I-era cases that allowed jailing war protesters,” Field said.
Rather, Field provided decades of case law to argue Bailey’s speech was protected, while also testifying Louisiana’s anti-terror law “does not apply to a zombie joke.”
“The statute is targeted at true threats like bomb threats or hijacking hoaxes,” he said. “So there was no probable cause to arrest Bailey even setting aside the constitutional speech issues.”
Field cited cases including Hustler Magazine v. Falwell, Brandenburg v. Ohio and City of Houston v. Hill to illustrate decisions of the U.S. Supreme Court “which made clear that criticizing the government and police are protected.”
The only question for the Fifth Circuit, he suggested, was whether the First Amendment exemption for incitement was applicable. Incitement requires three elements: advocating lawlessness, directing or encouraging lawlessness and having the effect of lawlessness. Bailey’s speech, Field said, fails on all three counts.
U.S. Circuit Judge James E. Graves Jr., a Barack Obama appointee, asked whether the post could be viewed by anyone on Facebook. Field said he was unsure, but the facts were the post was actually seen by very few people and it received just a handful of sarcastic comments from Bailey’s friends.
Field also provided case law suggesting once the protected speech exemptions fail, “it’s pretty easy to overcome qualified immunity.”
Senior U.S. Circuit Judge Patrick E. Higginbotham, a Ronald Reagan appointee, asked Fields to elaborate on Bailey’s state law claims. Fields said the district court was not wrong to consider the context of Covid-19 pandemic, with a near constant torrent of misinformation and fear mongering, but there is “no case law whatsoever suggesting the Louisiana terrorism statute could ever be reasonably applied to speech like Mr. Bailey’s.”
“We have the fact that nobody was actually concerned,” he said of the post. “Detective Iles testified that nobody called the [sheriff’s] department concerned, no buildings were evacuated and … I think it’s critical to understand the officers were treating this as they just didn’t like being the butt of [Bailey’s] joke.”
The sheriff department's attorney, Harry Bradford Calvit, said Bailey did not present constitutional arguments until the appeal.
“We had an argument in a field that was set by the plaintiffs and they lost it,” Calvit said. “Then they come to appeal and they try to construct another argument from the bones of the case they lost.”
Calvit cited the Supreme Court case of Nieves v. Bartlett to suggest probable cause for Bailey’s arrest did indeed exist. Similarly, the Fifth Circuit has upheld arrests under nearly identical circumstances, namely a 2018 case in which a high school student drew a caricature of himself on a whiteboard along with the words “future school shooter.”
The latter example was exacerbated by local press and social media attention, so Graves asked whether there was a citizen complaint regarding Bailey’s post. Calvit admitted there was not a record of a citizen complaint, but suggested that Iles’ investigation was prompted by a supervisor’s reaction to the post. Either way, Calvit argued probable cause did exist.
“If there is probable cause under Nieves and in the cases in the Fifth Circuit that cite Nieves, that’s the end of it,” he said.
U.S. Circuit Judge Dana M. Douglas, an appointee of President Joe Biden, pressed Calvit on why Iles didn’t see the humor in the reference to "World War Z" actor Brad Pitt.
“I’ve read his deposition and [Iles] didn’t know who [Pitt] was,” Calvit said. “He’s a country boy, he’s the sheriff’s department.”
Graves could hardly believe it.
“He didn’t know who Brad Pitt was?” the judge asked.
“He didn’t know Brad Pitt in relation to the zombie movie in relation to that comment … he knew Brad Pitt in a general sense,” Calvit explained. “Yeah, he knew Brad Pitt, sure. But as far as the leaps between that and anything else, he didn’t make that connection.”
Organizations filing briefs in the case on Bailey’s behalf included the American Civil Liberties Union, Cato Institute, Electronic Frontier Foundation and the Foundation for Individual Rights.
The Fifth Circuit judges did not indicate when they would issue a ruling.Follow @gabetynes
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