Ensuring that humor in its many forms continues to receive the full protection of the First Amendment has become an increasingly serious issue for supporters of a Louisiana man who was arrested for posting a joke on Facebook.
The federal lawsuit on behalf of Rapides Parish resident Waylon Bailey remains before the Fifth Circuit Court of Appeals, where the Foundation for Individual Rights and Expression (FIRE), ACLU of Louisiana and the Cato Institute last month filed an amicus brief supporting Bailey.
Bailey was arrested by sheriff’s officers at the onset of the coronavirus pandemic after posting lighthearted comments to Facebook friends comparing the pandemic to a zombie horror film and suggesting that sheriff’s officials had shoot-on-sight orders for those afflicted. He was initially accused of violations of a Louisiana terrorism law, but a prosecutor quickly dropped the charges.
“The First Amendment protects the right to poke fun at social issues – and that's all Mr. Bailey did,” JT Morris, a senior attorney at FIRE, told the Louisiana Record in an email. “... His post was filled with emojis, ALLCAPS and even a "#weneedyoubradpitt" hashtag. Simply put, most anyone would have realized Mr. Bailey was joking.”
The amicus brief calls on the appeals court to recognize that the First Amendment protects statements of humor, both online and off, and to remember that humor occupies a prominent place in U.S. history.
“The Supreme Court has explicitly recognized First Amendment protection for parody,” the amicus brief states. “Humor in all its permutations is a vital part of the free speech ecosystem and is rightly afforded robust protection under the First Amendment. This necessarily means that the First Amendment applies to jokes that don’t work and aren’t funny in the same way it protects the next work of comedic genius.”
A district court concluded that the sheriff’s officers listed as defendants in Bailey’s lawsuit had qualified immunity during the arrest and that Bailey’s speech wasn’t protected by the Constitution, based on a century-old “clear-and-present” danger test. Bailey is now appealing that decision.
“Arresting citizens for using humor is a blatant First Amendment violation,” Morris said. “And it defies our cherished American tradition of using parody and satire to comment on political and social issues.”