On a Friday in March 2020, a dozen sheriff’s deputies in bulletproof vests arrived at Waylon Bailey’s garage at his home in Forest Hill, Louisiana, guns drawn, and ordered him to kneel with his hands “on the damn head”. and he arrested him for a felony punishable by up to 15 years in prison. The SWAT-style raid was sparked by a Facebook post in which Bailey had made a zombie-themed joke about COVID-19. Recognizing the harm caused by that blatantly 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 news 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 charged Bailey as a terrorist based on constitutionally protected speech. “This verdict is a clear sign that the government cannot arrest someone simply because 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 vented his anger with a Facebook post that alluded to Brad’s film Pitt. World War Z. “THE RAPIDES PARISH SHERIFF’S OFFICE HAS ISSUED THE ORDER,” he wrote, that “IF THE DEPUTIES COME IN CONTACT WITH ‘THE INFECTED,'” they are to “SHOOT ON SIGHT.” And he added: “Lord have mercy on us all. #Covid9teen #weneedyoubradpitt.”
The Rapides Parish Sheriff’s Office sprang into action, assigning Iles the task of investigating what he perceived as “an attempt to hurt someone.” According to a local press report, authorities were alarmed by “a social media post promoting false information related to the ongoing COVID-19 pandemic.” In response, “detectives immediately launched 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 a charge of terrorizing.” William Earl Hilton, the sheriff at the time, explained why, saying he wanted to “instill in everyone that we are all in this together, as well as remind everyone that communicating false information to alarm or cause other serious disruption to the general public would not be tolerated.”
Bailey’s prank was deemed to pose such a serious and imminent threat that Iles didn’t bother getting an arrest warrant before catching him, just hours after Bailey’s mocking 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 is in progress or that a circumstance dangerous to human life exists or is about to exist, with the intent to cause members of the general public to constantly fear for their safety, or to cause the evacuation of a building, public structure or an transportation facility; or cause other serious disruption to the general public.”
Bailey apologized when sheriff’s deputies confronted him, saying he had “no ill will toward the Sheriff’s Office” and was “just saying it as a joke.” He agreed to remove the offending post after Iles said that otherwise he would ask Facebook to remove it. But that wasn’t enough for Iles, who took Bailey 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 prank was not covered by the First Amendment, that the arrest was based on a 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 a “clearly established” law. Joseph thought arresting someone for a Facebook gag didn’t meet that test. “Publishing misinformation during the early stages of the COVID-19 pandemic and (a) time of national crisis,” he said, “was remarkably similar in nature to falsely yelling fire in a crowded theater.”
That was a reference to Schenck v. United Statesa 1919 case in which the United States Supreme Court unanimously upheld the Espionage Act convictions of two socialists who had distributed anti-draft pamphlets during World War I. Writing for the Court, Justice Oliver Wendell Holmes Jr. said: “The strictest protection of free speech would not protect a man who falsely yells fire in a theater and causes panic.”
Holmes’ much-abused analogy, which had nothing to do with the facts of the case, was not legally binding. And in the case of 1969 Brandenburg vs. OhioThe Supreme Court modified the “clear and present danger” test that it had applied in Schenck—a point that Joseph somehow missed. Low Brandenburgeven the defense of criminal conduct is constitutionally protected unless it is “directed” to incite “imminent unlawful action” and is “likely” to do so, an exception to the First Amendment that Bailey’s joke clearly did not cover.
With the help of the Institute for Justice, Bailey asked the U.S. Court of Appeals for the Fifth Circuit to overrule Joseph, which it did last August. Writing for a unanimous Fifth Circuit panel, Judge Dana M. Douglas said Joseph “applied the wrong legal standard,” ignoring the Brandenburg evidence in favor of the Supreme Court’s previous, less speech-friendly approach.
“At most, Bailey ‘advocated’ that people share her post by writing ‘SHARE, SHARE
SHARE,'” Douglas wrote. “But your post did not advocate ‘illegal’ and ‘imminent’ action, nor was it ‘likely’ to produce such action. The post did not instruct any person or group to take any illegal actions immediately or in the near future, no one took such actions because of the post, and no such actions were likely to result because the post was clearly intended as a joke. Bailey also had no necessary intent to incite; At worst, his post was a joke in bad taste, but it cannot be read as intentionally aimed at incitement.”
Another possibly relevant exception to the First Amendment was “true threats,” defined as “statements in which the speaker purports to communicate a serious expression of an intention to commit an act of unlawful violence to a particular individual or group of individuals.” “. In a statement, Iles claimed that she considered Bailey’s post a threat because she was “meant to hurt police officers.” The prank was especially dangerous, she said, because there were “a lot of protests at the time regarding law enforcement.”
As Douglas noted, that claim was patently implausible “because Bailey was arrested in March 2020, while widespread protests related to law enforcement did not begin until after the murder of George Floyd in May 2020.” In any case, Bailey’s prank clearly did not constitute a real threat.
“At first glance, Bailey’s position is not a threat,” Douglas writes. “But to the extent that she can
possibly considered a ‘threat’ directed at the public (that RPSO officers would shoot them if they were ‘infected’) or at RPSO officers (that the ‘infected’ would shoot back) was not a ‘true threat’ based in context because it lacked credibility and was not serious, as clearly demonstrated by the calls to rescue Brad Pitt. For the same reason, Bailey did not have the intent necessary to make a ‘real threat.'”
Furthermore, the Fifth Circuit held, Iles should have known that Bailey’s position 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, such as incitement or actual threats.” Therefore, Iles 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 Louisiana’s terrorism statute in light of the facts, the text of the statute, and case law. state that he interprets.”
The Fifth Circuit also thought that Bailey plausibly claimed that Iles had retaliated against him for exercising his First Amendment rights. As Douglas noted, “Iles admitted that she arrested Bailey at least in part because of the content of her Facebook post, rather than any other conduct.” And it was clear that Bailey’s speech was cold, as he agreed to remove the post after Iles told him the sheriff’s office would otherwise “contact Facebook to remove it.”
That decision did not ensure victory for Bailey. He simply gave her the opportunity to persuade a jury that Iles had violated her First Amendment rights and the Fourth Amendment’s prohibition on “unreasonable searches and seizures.” The Fifth Circuit said it could also bring a state claim based on a false arrest.
Last week’s verdict against Iles and the sheriff’s office validated all of those claims. “It is telling that a jury of Mr. Bailey’s peers in western Louisiana took less than two hours 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 they understood how Mr. Bailey’s world was turned upside down when police wrongly labeled him a terrorist.”
Institute for Justice attorney Ben Field noted that “our First Amendment rights are worthless if courts do not hold the government accountable for violating them.” Bailey’s case, he said, “now represents a warning to government officials and a precedent that others can use to defend their rights.”
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