Case Overview

FIRE Victory closed

The Rapides Parish Sheriff's Office can’t take a joke. That became clear when one of its detectives, supported by a fully-armed SWAT team, arrested Waylon Bailey for domestic terrorism. His crime? A Facebook post comparing the March 2020 Covid lockdowns to a zombie apocalypse, complete with all-caps text, emojis, and the hashtag “#weneedyoubradpitt”. 

When Bailey brought a civil rights lawsuit against the arresting detective and sheriff, the judge erroneously granted the officers qualified immunity by applying a long-since discredited legal standard to conclude that Bailey’s obvious joke on Facebook was not protected speech. The court applied the now 100-year-old “clear and present danger” test from Schenck v. United States, 249 U.S. 47 (1919), to wrongly conclude Bailey’s speech was beyond the reach of the First Amendment because of its serious implications in light of the pandemic. This reasoning ignores the clearly established protections for humor in the First Amendment and puts millions of present and future speakers in jeopardy of criminal sanctions.

On November 14, 2022, FIRE joined the ACLU of Louisiana in a brief authored by the Cato Institute to remind the United States Court of Appeals for the Fifth Circuit that the First Amendment protects humor, online or off.

On August 25, 2023, the Fifth Circuit ruled for Bailey, holding that his Facebook joke was protected speech, as FIRE and its co-authors urged in their brief. The court also held the officers responsible for arresting Bailey were not entitled to qualified immunity. Bailey's win at the Fifth Circuit is an important one for First Amendment protections for humor.