Police Department: Rapides Parish Sheriff’s Office
In March of 2020, during the uncertainty of the early days of the COVID-19 pandemic, Waylon Bailey of Rapides Parish, Louisiana sought to make light of the situation by posting an obvious joke on his Facebook page. His post consisted of a faux‐urgent warning to his Facebook friends that the Rapides County Sherriff’s Office had been instructed to shoot “the infected” on sight. His over‐the‐top post was complete with all‐caps text, emojis, and a hashtag reference to Brad Pitt’s role in the zombie movie World War Z. Exchanges between Bailey and his friends in the comments on the post made it clear that Bailey was joking and that his friends and readers were in on the joke.
Despite all this evidence of the post’s innocuous nature, Bailey was arrested by a SWAT team and charged with violating Louisiana’s terrorizing statute. Fortunately the humorless nature of this absurd arrest was not lost on the prosecutor, who immediately dropped the charges as soon as he became aware of them. Bailey then sought to vindicate his First and Fourth Amendment rights by filing suit against the sheriff and arresting officer.
The district court granted the officers qualified immunity, however, and found that Bailey’s obvious joke on Facebook was not protected speech. In reaching its conclusion, the district court relied on outmoded World War I era Supreme Court precedents that permitted the government to jail speakers based on the remote possibility that their speech might lead to unlawful action.
Bailey, represented by the Institute for Justice (IJ), has appealed to the Fifth Circuit. Cato, joined by the Foundation for Individual Rights and Expression (FIRE) and the American Civil Liberties Union of Louisiana (ACLU-LA), has filed a brief urging the Fifth Circuit to reverse the district court. Our brief argues that the First Amendment protects online humor, including jokes posted on social media. The brief further argues that the district court erred in its application of discarded World War I era precedents. The court should have instead applied the modern, and more speech protective, test for incitement from Brandenburg v. Ohio (1969). Finally, the brief explains why Bailey’s innocuous joke cannot serve as the basis for probable cause to arrest.
If allowed to stand, the reasoning of the district court would place millions of present and future speakers in jeopardy of criminal sanctions. The Fifth Circuit needs to quarantine this decision before it further infects First Amendment jurisprudence.