On a Friday in March 2020, a dozen or so sheriff’s deputies wearing bulletproof vests descended upon Waylon Bailey’s garage at his home in Forest Hill, Louisiana, with their guns drawn, ordered him onto his knees with his hands “on your fucking head,” and arrested him for a felony punishable by up to 15 years in prison. The SWAT-style raid was provoked by a Facebook post in which Bailey had made a zombie-themed joke about COVID-19. Recognizing the harm inflicted by that flagrantly unconstitutional arrest, a federal jury last week awarded Bailey $205,000 in compensatory and punitive damages.
“I feel vindicated that the jury agreed that my post was satire and that no reasonable police officer should have arrested me for my speech,” Bailey said in a press release from the Institute for Justice, which helped represent him in his lawsuit against the Rapides Parish Sheriff’s Office and Detective Randell Iles, who led the investigation that tarred Bailey as a terrorist based on constitutionally protected speech. “This verdict is a clear signal that the government can’t just arrest someone because the officers didn’t like what they said.”
On March 20, 2020, four days after several California counties issued the nation’s first “stay-at-home” orders in response to an emerging pandemic, Bailey let off some steam with a Facebook post that alluded to the Brad Pitt 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.”
The Rapides Parish Sheriff’s Office snapped into action, assigning Iles to investigate what he perceived as “an attempt to get someone hurt.” According to a local press report, the authorities were alarmed by “a social media post that promoted false information related to the ongoing COVID-19 pandemic.” In response, “detectives immediately initiated an investigation,” and as a result, Bailey, then 27, was “arrested for terrorism.”
Another news story reported that Bailey “was booked into the Rapides Parish Detention Center on one count of terrorizing.” William Earl Hilton, the sheriff at the time, explained why, saying he wanted to “impress upon everyone that we are all in this together, as well as remind everyone that communicating false information to alarm or cause other serious disruptions to the general public will not be tolerated.”
Bailey’s joke was deemed to pose such a grave and imminent threat that Iles did not bother to obtain an arrest warrant before nabbing him, just a few hours after Bailey’s facetious appeal to Brad Pitt. But in a probable cause affidavit that Iles completed after the arrest, the detective claimed that Bailey had violated a state law against “terrorizing,” defined 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.”
Bailey was apologetic when the sheriff’s deputies confronted him, saying he had “no ill will towards the Sheriff’s Office” and “only meant it as a joke.” He agreed to delete the offending post after Iles said he otherwise would ask Facebook to take it down. But that was not good enough for Iles, who hauled Bailey off to jail anyway.
For very good legal reasons, the Rapides Parish District Attorney’s Office declined to prosecute Bailey. But when Bailey sued Iles 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.
That doctrine allows civil rights claims against government officials only when their alleged misconduct violated “clearly established” law. Joseph thought arresting someone for a Facebook gag did not meet that test. “Publishing misinformation during the very early stages of the COVID-19 pandemic and [a] time of national crisis,” he averred, “was remarkably similar in nature to falsely shouting fire in a crowded theatre.”
That was a reference to Schenck v. United States, a 1919 case in which the U.S. Supreme Court unanimously upheld the Espionage Act convictions of two socialists who had distributed anti-draft leaflets during World War I. Writing for the Court, Justice Oliver Wendell Holmes Jr. said, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
Holmes’ much-abused analogy, which had nothing to do with the facts of the case, was not legally binding. And in the 1969 case Brandenburg v. Ohio, the Supreme Court modified the “clear and present danger” test it had applied in Schenck—a point that Joseph somehow overlooked. Under Brandenburg, even advocacy of criminal conduct is constitutionally protected unless it is “directed” at inciting “imminent lawless action” and “likely” to do so—an exception to the First Amendment that plainly did not cover Bailey’s joke.
With help from the Institute for Justice, Bailey asked the U.S. Court of Appeals for the 5th Circuit to overrule Joseph, which it did last August. Writing for a unanimous 5th Circuit panel, Judge Dana M. Douglas said Joseph “applied the wrong legal standard,” ignoring the Brandenburg test in favor of the Supreme Court’s earlier, less speech-friendly approach.
“At most, Bailey ‘advocated’ that people share his post by writing ‘SHARE SHARE
SHARE,'” Douglas wrote. “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 was 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 noted, 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 said, “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.
The appeals court rejected Iles’ claim that he had probable cause to arrest Bailey, whose conduct clearly did not fit the elements of the crime with which he was charged. “Iles is not entitled to qualified immunity,” Douglas wrote, “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.”
The 5th Circuit also thought Bailey plausibly claimed that Iles had retaliated against him for exercising his First Amendment rights. As Douglas noted, “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 sheriff’s office otherwise “would contact Facebook to remove it.”
That decision did not assure Bailey of victory. It merely gave him the opportunity to persuade a jury that Iles had violated his First Amendment rights and 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.
Last week’s verdict against Iles and the sheriff’s office validated all of those claims. “It is telling that it took less than two hours for a jury of Mr. Bailey’s peers in Western Louisiana to rule in his favor on all issues,” said Andrew Bizer, Bailey’s trial attorney. “The jury clearly understood that the Facebook post was constitutionally protected speech. The jury’s award of significant damages shows that they understood how Mr. Bailey’s world was turned upside down when the police wrongly branded him a terrorist.”
Institute for Justice attorney Ben Field noted that “our First Amendment rights aren’t worth anything if courts won’t hold the government responsible for violating them.” Bailey’s case, he said, “now stands as a warning for government officials and as a precedent that others can use to defend their rights.”
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