A Louisiana man who was arrested in March 2020 over a COVID-19-related joke he made on Facebook may finally see justice after winning big in court this week.
Here’s the post that got that man, Waylon Bailey, into so much trouble:
“SHARE SHARE SHARE ! ! ! ! JUST IN: RAPIDES PARISH SHERIFFS OFFICE HAVE ISSUED THE ORDER, IF DEPUTIES COME INTO CONTACT WITH ‘THE INFECTED’ SHOOT ON SIGHT….Lord have mercy on us all. #Covid9teen #weneedyoubradpitt1”
This was clearly a joke, as evidenced by the hashtag “we need you Bratt Pitt,” a reference to the movie World War Z. But, as Reason’s Jacob Sollum reports, the Rapides Parish Sheriff’s Office did not find it funny:
“Detective Randell Iles was immediately assigned to investigate the matter. That same day, about a dozen deputies wearing bulletproof vests descended upon Bailey’s home with their guns drawn. They ordered him to ‘put your hands on your fucking head’ and get on his knees, handcuffed him, and arrested him for violating a state law against ‘terrorizing,’ a felony punishable by up to 15 years in prison. While Bailey was being handcuffed, one of the deputies elicited laughter from his colleagues by advising the perpetrator that his next Facebook post should be not to fuck with the police.’ The RPSO announced the arrest on Facebook, and local news outlets reported that Bailey had been charged with terrorism.”
Thankfully, local prosecutors had the common sense to drop the charges and not further persecute Bailey. After all, whether you like his post or not, it is free speech protected under the First Amendment.
There is a long established precedent that satire, parody, and even “misinformation” are all protected categories of free speech. The only potentially relevant exceptions here are for “incitement of violence” or “true threats,” but each narrow carveout has a very high bar for what qualifies and Bailey’s post does not come even close. (Nothing in it actually advocates violence or threatens anyone, let alone doing so in a way that’s likely to produce “imminent” and “lawless” action.)
So, Bailey was arrested, threatened, potentially traumatized, and smeared in the media, all due to a government crackdown on constitutionally-protected free speech. That kinda sounds like lawsuit material, doesn’t it?
Hence why Bailey, represented by the Institute for Justice, filed a lawsuit against the sheriffs who violated his rights. Initially, a district judge rejected Bailey’s claim. Yet this week, a federal appeals court reversed this decision and ruled in Bailey’s favor.
“The First Amendment’s protections apply to jokes, parodies, satire, and the like, whether clever or in poor taste,” the judge wrote.
Indeed it does. So, this is a win not just for amateur comedians, but for any American who values the First Amendment.