In a filing with a federal appeals court, a Rapides Parish man alleges that his First Amendment rights were violated when a sheriff’s SWAT team arrested him for posting a Facebook joke comparing the COVID-19 pandemic to a zombie apocalypse.
Plaintiff Waylon Bailey called on the Fifth District Court of Appeal earlier this month to reverse a federal district court decision that dismissed his civil rights lawsuit against a local sheriff’s office. The lower court held that the deputies’ actions were reasonable based on a World War I-era case that at the time allowed the government to jail political dissidents.
Bailey’s joke, which was made during the onset of the pandemic and directed to friends, suggested that the Sheriff’s Department might end up having to shoot the infected. The language was over the top and loaded with emojis, according to the Institute for Justice (IJ), which is representing Bailey.
“The deputies may well not have liked Bailey’s joke,” the brief filed with the Fifth Circuit by IJ states. “They may have wished to silence him. But the Constitution is made of sterner stuff and demanded the same of them. This court should enforce the Constitution’s guarantees and reverse the judgment of the district court.”
IJ attorney Ben Field said he expects the Fifth Circuit to be more receptive to Bailey’s arguments than the Western District of Louisiana court.
“The district court’s analysis just really can't be squared with modern First Amendment jurisprudence,” Field told the Louisiana Record, referring to the court’s reliance on World War I-era case law. “... Those types of cases have been completely repudiated by the Supreme Court 50 years ago.”
Such free-speech cases have become more common today than they were 10 or 15 years ago due to the popularity of social media, he said.
“In working on these cases, we have found examples from across the country where people have said things online that are obviously protected speech and local law enforcement found statutes that they stretched in order to justify arresting them,” Field said.
One of the issues brought up in the deputies’ defense involved deputies’ qualified legal immunity when performing their jobs. Such immunity does not apply when law enforcement violates constitutional rights, according to Field.
In arresting Bailey based on a Louisiana terrorism statute, the deputies failed to consult with a prosecutor or get a warrant, he said.
“They didn’t like being the butt of a joke on Facebook,” Field said.