In March 2020, Waylon Bailey found himself at the center of an alarming incident. A group of sheriff’s deputies, dressed in bulletproof vests and armed with guns, stormed his home in Rapides Parish, La. The reason? A Facebook post made by Bailey in which he jokingly referenced a zombie-themed scenario related to COVID-19. This resulted in his arrest for a felony offense that could have led to a 15-year prison sentence.
Surprisingly, a federal appeals court recently ruled that Bailey can pursue civil rights claims based on this incident. However, initially, a judge blocked his lawsuit, claiming that Bailey’s joke posed a “clear and present danger” similar to falsely shouting fire in a theater. This decision exemplifies the ongoing influence of an outdated analogy that has frequently been used to justify punishing or censoring protected speech.
Bailey’s joke, inspired by the zombie movie “World War Z,” joked that the Rapides Parish Sheriff’s Office had instructed deputies to shoot “the infected” on sight. He added the hashtags #Covid9teen and #weneedyoubradpitt. Upon investigating the post, Detective Randell Iles of the RPSO claimed that Bailey’s joke violated a state law against terrorizing the public, leading to his arrest.
However, as noted by the US Court of Appeals for the Fifth Circuit, Bailey’s conduct did not align with the elements of the crime he was charged with. Consequently, prosecutors eventually dropped the charge. The Fifth Circuit overturned a previous decision by US District Judge David C. Joseph, who believed that Iles had probable cause to make the arrest. Joseph compared Bailey’s actions to falsely shouting fire in a crowded theater, citing a 1919 case known as Schenck v. United States.
However, Joseph overlooked the fact that the Supreme Court’s standard for assessing the permissibility of speech has evolved since Schenck. In the 1969 case Brandenburg v. Ohio, the court modified the “clear and present danger” test, explaining that speech advocating criminal conduct is protected unless it is directed at inciting imminent lawless action and is likely to do so. Bailey’s joke did not meet these criteria and should have been protected under the First Amendment.
Despite the fact that Schenck is no longer applicable, references to “shouting fire in a crowded theater” persist in judicial decisions and public discourse. For instance, Governor Kathy Hochul of New York used this analogy to justify censoring online hate speech following a racially-motivated mass shooting in Buffalo. This misinterpretation of the analogy as a broad exception to the First Amendment is a misconception that even Justice Samuel Alito has fallen prey to.
It is important to recognize that Holmes’ passing comment in Schenck did not establish a general principle. While there are situations, such as those covered by Louisiana’s “terrorizing” statute, where false reports of dangerous circumstances can be criminalized, it is incorrect to extend the analogy to restrict other forms of speech. This tired argument should be put to rest, as it demonstrates a lack of understanding of the principles of free speech.
In conclusion, Bailey’s experience highlights the need to reexamine the use of the “shouting fire in a crowded theater” analogy in legal and societal contexts. Freedom of speech should be protected, especially when it comes to online expression, and analogies that inaccurately restrict this right should be discarded.
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