In March 2020, the Rapides Parish Sheriff’s Office in Louisiana took extreme measures in response to a social media post. Over a dozen armed deputies, wearing bulletproof vests and with guns drawn, stormed the home of Waylon Bailey and forcibly removed him. Bailey was ordered onto his knees with his hands on his head before being arrested and charged with a felony terrorism offense carrying a maximum 15-year prison sentence.
The provocation for this dramatic SWAT-style raid was a joke Bailey had made on Facebook alluding to the 2013 zombie film “World War Z.” In his post, Bailey mentioned reports from the sheriff’s office that deputies had orders to shoot “infected” people on sight during the early days of the COVID-19 pandemic. Bailey’s post, meant in jest, included the hashtags “#Covid19” and “#weneedyoubradpitt” in a reference to the movie’s star Brad Pitt.
Detective Randell Iles of the Rapides Parish Sheriff’s Office was immediately assigned to investigate Bailey’s post. Iles claimed the post violated a Louisiana law against “terrorizing” the public. However, as the US Court of Appeals for the Fifth Circuit recently noted, Bailey’s conduct clearly did not meet the legal definition of that crime. This likely explains why prosecutors dropped the charge against Bailey after his arrest received negative press coverage wrongfully portraying him as a terrorist.
In overturning a lower court ruling dismissing Bailey’s civil rights claims, the Fifth Circuit disagreed with US District Judge David C. Joseph’s assessment that Iles had probable cause to arrest Bailey. Joseph had cited the century-old “shouting fire in a crowded theater” analogy from a 1919 Supreme Court case in justifying Bailey’s arrest. However, the Fifth Circuit noted this analogy and the precedent it stemmed from are no longer valid interpretations of the First Amendment.
Under the current Brandenburg standard established by the Supreme Court in 1969, even speech advocating illegal conduct is constitutionally protected unless it is intended and likely to incite “imminent lawless action.” Bailey’s zombie-themed joke clearly did not meet this threshold. While the “shouting fire” analogy continues to be referenced in both legal decisions and public debates around censorship, experts like FIRE President Greg Lukianoff argue it is outdated and “needs to be retired” from discussions about free speech principles.