In the early days of the COVID-19 pandemic, Waylon Bailey, a resident of Rapides Parish, Louisiana, made a joke on Facebook that alluded to the 2013 Brad Pitt zombie movie World War Z. "RAPIDES PARISH SHERIFFS OFFICE HAVE ISSUED THE ORDER," he wrote, that "IF DEPUTIES COME INTO CONTACT WITH 'THE INFECTED,'" they should "SHOOT ON SIGHT." He added: "Lord have mercy on us all. #Covid9teen #weneedyoubradpitt."
That post went up on March 20, 2020. The Rapides Parish Sheriff's Office (RPSO) was not amused. 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.
For very good legal reasons, the Rapides Parish District Attorney's Office declined to prosecute Bailey. But when Bailey sued Iles and Sheriff Mark Wood for violating his constitutional rights and making a false arrest, U.S. District Judge David C. Joseph dismissed his claims with prejudice, concluding that his joke was not covered by the First Amendment, that the arrest was based on probable cause, and that Iles was protected by qualified immunity. On Friday, the U.S. Court of Appeals for the 5th Circuit ruled that Joseph was wrong on all three counts.
"I'm relieved that the court recognized that the deputies were wrong to arrest me for making a joke on Facebook," Bailey said in a press release issued by the Institute for Justice, which represented him when he appealed Joseph's decision. "I'm glad that I will be able to hold the detective and sheriff accountable, and hopefully my case will stand as a strong statement to officers about what the First Amendment protects."
Joseph thought Bailey's joke was not constitutionally protected because it posed a "clear and present danger." The judge said "Bailey's post publishing misinformation during the very early stages of the COVID-19 pandemic and [a] time of national crisis" was "remarkably similar in nature to falsely shouting fire in a crowded theatre." That was a reference to the much-abused analogy that Justice Oliver Wendell Holmes drew in the 1919 case Schenck v. United States, in which the U.S. Supreme Court unanimously upheld the Espionage Act convictions of two anti-draft activists.
Writing for a unanimous 5th Circuit panel, Judge Dana M. Douglas says Joseph "applied the wrong legal standard," overlooking the well-known fact that the Supreme Court modified the "clear and present danger" test in the 1969 case Brandenburg v. Ohio. Under Brandenburg, even advocacy of criminal conduct is constitutionally protected unless it is "directed" at inciting "imminent lawless action" and "likely" to do so. Bailey's joke plainly did not satisfy either of those prongs.
"At most, Bailey 'advocated' that people share his post by writing 'SHARE SHARE
SHARE,'" Douglas writes. "But his post did not advocate 'lawless' and 'imminent' action, nor was it 'likely' to produce such action. The post did not direct any
person or group to take any unlawful action immediately or in the near future,
nobody took any such actions because of the post, and no such actions were
likely to result because the post was clearly intended to be a joke. Nor did
Bailey have the requisite intent to incite; at worst, his post was a joke in poor
taste, but it cannot be read as intentionally directed to incitement."
Another possibly relevant exception to the First Amendment is the one for "true threats," defined as "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." In a deposition, Iles claimed to view Bailey's post as threatening because it was "meant to get police officers hurt." The joke was especially dangerous, he said, because there were "a lot of protests at the time in reference to law enforcement."
As Douglas notes, that claim was patently implausible "because Bailey was arrested in March 2020, while widespread protests concerning law enforcement did not begin until after George Floyd's murder in May 2020." In any case, Bailey's joke clearly did not amount to a true threat.
"On its face, Bailey's post is not a threat," Douglas writes. "But to the extent it could
possibly be considered a 'threat' directed to either the public—that RPSO deputies would shoot them if they were 'infected'—or to RPSO deputies—that the 'infected' would shoot back—it was not a 'true threat' based on context because it lacked believability and was not serious, as evidenced clearly by calls for rescue by Brad Pitt. For the same reason, Bailey did not have the requisite intent to make a 'true threat.'"
Furthermore, the 5th Circuit held, Iles should have known that Bailey's post was protected speech. "Based on decades of Supreme Court precedent," Douglas says, "it was clearly established that Bailey's Facebook post did not fit within one of the narrow categories of unprotected speech, like incitement or true threats." Iles therefore could not find refuge in qualified immunity, which shields police officers from civil liability only when their alleged misconduct does not violate "clearly established" law.
Joseph interpreted Bailey's First Amendment claim as a complaint that Iles had retaliated against him for his constitutionally protected speech. Such a claim requires plaintiffs to show that "they were engaged in constitutionally protected activity," that "the defendants' actions caused them to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity," and that "the defendants' adverse actions were substantially motivated against the plaintiffs' exercise of constitutionally protected conduct."
According to the 5th Circuit, Joseph erroneously concluded that Bailey did not meet the first element of that test. Even if Bailey's post was constitutionally protected, Joseph said, he had not adequately alleged a "retaliatory motive." But as Douglas notes, "Iles admitted that he arrested Bailey at least in part because of the content of his Facebook post, rather than for some other conduct." And it was clear that Bailey's speech was chilled, since he agreed to delete the post after Iles told him the RPSO otherwise "would contact Facebook to remove it."
What about Iles' claim that he had probable cause to arrest Bailey? Louisiana defines "terrorizing" as "the intentional communication of information that the commission of a crime of violence is imminent or in progress or that a circumstance dangerous to human life exists or is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety; or causing evacuation of a building, a public structure, or a facility of transportation; or causing other serious disruption to the general public."
State courts have made it clear that the crime requires both "false information intentionally communicated" and "an immediacy element concerning the false information or threat that causes sustained fear or serious public disruption." It also requires "specific intent" to "cause members of the general public to be in sustained fear for their safety, or to cause evacuation of a public building, a public structure,
or a facility of transportation, or to cause other serious disruption to the general public."
When he decided to arrest Bailey, Douglas notes, Iles had read the Facebook post along with the comments below it, which confirmed that it was meant in jest. According to Iles, Bailey, when confronted by the sheriff's deputies, apologized, saying he had "no ill will towards the Sheriff's Office" and "only meant it as a joke." Iles also knew that "nobody reported the post to law enforcement." The only basis for the arrest was the content of the post, combined with the fact that the detective's supervisors had asked him to investigate it and "the general social conditions" at the beginning of the pandemic.
"These facts and circumstances are not sufficient for a reasonable person to believe that Bailey had violated the Louisiana terrorizing statute," Douglas writes. "The statute's requirement that the communication have 'an immediacy element concerning the false information' is lacking. Moreover, 'causation of "sustained fear"' is clearly an essential element of this part of the statute. Here, however, there were no facts that would lead a reasonable person to believe that Bailey's post caused sustained fear. No members of the public expressed any type of concern. Even if the post were taken seriously, it is too general and contingent to be a specific threat that harm is 'imminent or in progress.' Nor would a reasonable person believe, based on these facts, that Bailey acted with the requisite 'specific intent' to cause sustained fear or serious public disruption."
As with the question of whether Bailey's post was constitutionally protected, the 5th Circuit held that Iles should have recognized that he did not have probable cause to arrest Bailey. "Iles is not entitled to qualified immunity," Douglas writes, "because no reasonable officer could have found probable cause to arrest Bailey for violating the Louisiana terrorizing statute in light of the facts, the text of the statute, and the state case law interpreting it."
In addition to resuscitating Bailey's claims under the First Amendment's speech protections and under the Fourth Amendment's prohibition of "unreasonable searches and seizures," the 5th Circuit said he also could pursue a state claim based on false arrest. "The parties agree that Bailey's state law false arrest claim turns on whether there was probable cause for his arrest and that the Fourth Amendment probable cause analysis is thus determinative of this claim," Douglas writes. "Further, the parties agree that if Iles is liable for false arrest, then Wood is vicariously liable under Louisiana law for the tort of his employee."
The 5th Circuit's decision in Bailey v. Iles "makes clear that the First Amendment applies with full force to online speech," said Institute for Justice attorney Ben Field. "Government officials can't get away with stretching criminal laws to go after people who make jokes at their expense. This is a victory for free speech and common sense and against the pernicious doctrine of qualified immunity."