EFF to Fifth Circuit: The First Amendment Protects the Right to Make Jokes on Social Media


EFF intern Izzy Simon contributed to this blog post.

The First Amendment to the U.S. Constitution protects the right to free expression and prohibits the government from “abridging the freedom of speech.” This includes protecting an individual's right to make jokes online—even bad or offensive jokes, as well as jokes about the police. TechFreedom and EFF have thus filed an amicus brief asking a federal appellate court in Louisiana, to reaffirm this basic principle after the police arrested Waylon Bailey for posting a joke at their expense on his Facebook account.

As COVID-19 gained a foothold in the United States in early 2020, Bailey likened the pandemic to the action movie World War Z in a post on Facebook to his friends and joked that the police in Rapides Parish, Louisiana, would shoot anyone infected with the virus “on sight.” Bailey wrote the post in all caps and added emojis and hashtags, including #weneedyoubradpitt, referencing Brad Pitt’s role in the film. His friends and wife commented on the post, going along with the joke. Within hours, a SWAT team showed up at Bailey’s house and arrested him for allegedly violating a Louisiana anti-terrorism law that prohibits “causing members of the public to be in sustained fear for their safety.” Upon arrest, the police allegedly warned Bailey “not to fuck with the police.” The district attorney dropped the charges, and Bailey sued the arresting officer and Sheriff for the unconstitutional arrest.

But a federal court wrongly dismissed his lawsuit in July of this year, holding that the First Amendment did not protect his speech and the arrest was lawful. The legal question here is whether Bailey’s post was intended or likely to incite “imminent lawless action,” as held by the Supreme Court in 1969. The court mentioned this standard but wrongly seemed to assume that it was met because Bailey supposedly incited “fear” through the post, thus violating Louisiana’s anti-terrorism law. Worse still, the court used a long-ago overturned Supreme Court case that upheld the government’s imprisonment of an anti-war pamphleteer during World War I. The high court’s terrible opinion in that case popularized the canard, repeatedly used by the court here, that free speech does not include “falsely shouting fire in a theatre.”

As our amicus brief argues, the post was obviously a joke and few people saw it outside of Bailey’s friends. No one called the police about the post. There is no evidence that anyone experienced any fear as a result of the post. Regardless, creating “sustained fear” is not an exception to the First Amendment. Using such wishy-washy language to define the boundaries of free speech empowers the government to censor viewpoints, art, journalism, and, yes, online jokes that it doesn’t like. And Bailey’s arrest is just the latest example of this. In another recent case out of Louisiana, EFF filed a brief in support of a comedian who created an obviously fake Facebook event satirizing right-wing hysteria over Antifa and was sued by the city government for the costs of policing the fake event.

If the Fifth Circuit agrees with the lower court and rules against Bailey, it will be a serious blow to First Amendment protections in the United States. The Supreme Court has recognized that the freedom to criticize the police distinguishes “a free nation from a police state.” If the First Amendment protects criticizing the police, it certainly protects a joke about the police that ran no risk of inciting any illegal activity. Courts must reaffirm this basic principle to protect the casual and spontaneous speech that is common on social media platforms. 


Tuesday 22nd November 2022 7:54 pm

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