Facebook jokester's COVID post invoking Brad Pitt zombie movie 'World War Z' was free speech, not 'terrorism': Court

The nation's most conservative circuit court ruled against a Louisiana cop for arresting a man over a COVID-19 Facebook joke in 2020, revived the man's civil lawsuit, and said a reference to actor Brad Pitt made the case an easy call.

Waylon Bailey, a resident of Rapides Parish in central Louisiana, was arrested for posting "terroristic threats" on Facebook on March 20, 2020, just as the COVID-19 pandemic was unfolding.

Bailey's post had been intended as a joke.

"Rapides Parish Sheriffs Office have issued the order, if deputies come into contact with 'the infected' shoot on sight," he wrote. The post, which began with the words "SHARE SHARE SHARE," is shown below.

The hashtag "#weneedyoubradpitt" was a reference to the 2013 zombie movie "World War Z," which starred Brad Pitt. Bailey's post had been responding to another light-hearted post made by a friend, and the two commented back and forth, joking about their posts getting "flagged" or being "reported."

The Rapides Parish Sheriff's Office (RPSO), however, did not interpret the post as humorous and began an official investigation. SWAT Commander Randell Iles said he felt the post was a "legitimate threat" to harm police officers, and concluded that Bailey had committed the crime of "terrorizing" in violation of Louisiana state law.

Despite the officer's personal take on the post, no member of the public had complained nor had any disruption occurred because of the post. Nevertheless, RPSO deputies went to Bailey's home wearing bulletproof vests, drew their weapons, ordered Bailey to his knees, and then handcuffed, arrested, and jailed him.

During the arrest, one deputy told Bailey, "next thing [you] put on Facebook should be not to f— with the police," while others laughed. Bailey explained to officers that his post was intended as a joke, apologized, and deleted the post. Still, Bailey was booked and held in jail until his wife paid a bond. The RPSO announced Bailey's arrest on its Facebook page.

Prosecutors, however, declined to prosecute the case.

After charges were dropped, Bailey sued both Iles and Sheriff Mark Wood for malicious prosecution and false arrest under state law and violation of his First and Fourteenth Amendment rights under 42 U.S.C. § 1983.  At the district court level, Donald Trump appointee U.S. District Judge David C. Joseph dismissed Bailey's claims with prejudice on the grounds that the timing of the post — during the highly sensitive early days of the pandemic — made it reasonable for Iles to assume it constituted a real threat intended to harm.

Although neither party actually made the argument, Joseph ruled that the post was not constitutionally protected speech under the First Amendment because it created a "clear and present danger." Further, Joseph found that Iles was protected by the highly controversial doctrine of qualified immunity.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled Friday that Joseph had been wrong on both accounts. Bailey's appeal was presided over by U.S. Circuit Court Judges Patrick Higginbotham, a Ronald Reagan appointee, James Graves, a Barack Obama appointee, and Dana Douglas, a Joe Biden appointee.

Douglas penned the 19-page opinion for the unanimous panel in which the circuit judges slammed Joseph for applying the wrong legal standard to the constitutional analysis. It was not a close call, said Douglas; Bailey's post did not present an immediate safety issue, and his speech was indeed protected by the First Amendment

"A comparison with Supreme Court precedent makes clear that Bailey's post was not 'advocacy . . . directed to inciting or producing imminent lawless action' nor 'likely to incite such action,'" the judge wrote.

The panel said that "the post was clearly intended to be a joke," and that "at worst, his post was a joke in poor taste, but it cannot be read as intentionally directed to incitement."

The panel found that the post could not have been a "true threat" which lacked First Amendment protection, particularly because of the reference to the famous actor. Contrary to what Iles argued, Douglas said the post was "absurd," "lacked believability," and was "not serious, as evidenced clearly by calls for rescue by Brad Pitt."

The panel found that in addition to the First Amendment violations, officers also violated Bailey's Fourth Amendment rights by arresting him for "terrorism" without probable cause.

"[T]here were no facts that would lead a reasonable person to believe that Bailey's post caused sustained fear," wrote Douglas, "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.'" Because the arrest was not supported by reasonable inferences, Bailey's arrest failed to meet the necessary legal standard, the judges found.

Douglas acknowledged that "the social context of COVID-19 is certainly a relevant consideration," but said that "the general fear and uncertainty around COVID-19 does not turn Bailey's otherwise-inane Facebook post into a terroristic threat under Louisiana law."

Iles' unreasonable actions prevent him from relying on the doctrine of qualified immunity to shield him from Bailey's lawsuit, said the panel. In many controversial qualified immunity cases, courts have ruled that even officers who have appeared to act egregiously are entitled to immunity on the basis that the particular violation was not based on a "clearly established right" that was raised in a similar prior case.

The court ruled that Bailey's case, however, does not require a similar prior case, because it is "beyond debate" that an illegal arrest violates the Fourth Amendment. Further, the court said that Iles' comment — "next thing [you] put on Facebook should be not to f— with the police" — was a clear indication that the illegal arrest had been indeed based on Bailey's post.

Bailey's attorney, Ben Field, called the ruling "a terrific victory for Waylon and for the Constitution."

"The court's ruling makes clear that the First Amendment applies with full force to online speech and that government officials cannot stretch the law to target people who make jokes about them," said Field. "This is a victory for free speech and common sense and against the pernicious doctrine of qualified immunity."

Defense counsel did not respond to request for comment.

You can read the full ruling here.