Waylon Bailey, the social media-user who was arrested by a Wuhan virus totalitarian idiot for making a joke and initially denied justice by a U.S. District Judge who doesn’t know the law, finally was awarded $205,000 in compensatory and punitive damages by a federal jury. It’s not enough, not even close, and the publicity the episode has received (virtually none) underlines that point.

These are the kinds of cases juries should address with $83 million in damages (just picking a number out of the air, there) to make the next Gestapo-inclined officer who considers punishing a citizen for exercising his constitutional rights think twice, or even three times. At least, however, Waylon Bailey was vindicated by our lately maladjusted justice system.

There is hope.

In March 2020, just as the Wuhan virus freakout was kicking in, Bailey sent out a Facebook post that was an obvious joke to anyone with a smidgen of cultural literacy. Alluding to the Brad Pitt zombie movie (one of the very best in the genre, and a sequel is on the way!) “World War Z,” he wrote, “RAPIDES PARISH SHERIFFS OFFICE HAVE ISSUED THE ORDER. IF DEPUTIES COME INTO CONTACT WITH ‘THE INFECTED,'” SHOOT ON SIGHT.” Then he added, “Lord have mercy on us all. #Covid9teen #weneedyoubradpitt.”

We had just begun seeing the first signs of the hysteria to come: several California counties had issued the nation’s first “stay-at-home” orders in a misguided and disastrous response to the pandemic that eventually did more damage than the Wuhan-spawned virus itself. Yes, it’s true, Waylon, who lives in Forest Hill, Louisiana, might want to hone his satire skills just a bit; after all, the recent orders had come in Gavin Newsom’s insane Golden State, not in Bailey’s Rapides Parish, and not everyone follows the screen exploits of Brad Pitt (the fools!). However, that slight lapse in skill could not justify what happened next.

About a dozen sheriff’s deputies wearing bulletproof vests raided Waylon Bailey’s home with their guns drawn, ordered him onto his knees (“Hands on your fucking head!”) and arrested him for supposedly violating a state law against “the intentional communication of information that the commission of a crime of violence is imminent or in progress or that a circumstance dangerous to human life exists or is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety; or causing evacuation of a building, a public structure, or a facility of transportation; or causing other serious disruption to the general public.” The felony is punishable by up to 15 years in prison.

William Earl Hilton, the Rapides Parish sheriff at the time who makes the Mississippi sheriff in “The Heat of the Night” seem like Robert Oppenheimer by comparison, said he wanted to “impress upon everyone that we are all in this together, as well as remind everyone that communicating false information to alarm or cause other serious disruptions to the general public will not be tolerated.” You know, evil “misinformation,” like saying Hunter Biden’s laptop was genuine, the Russian Collusion story was planted by Hillary Clinton’s campaign, or that there was no valid medical justification for closing the schools. But Waylon’s little joke on Facebook wasn’t even in the misinformation category. It was a joke that all but idiots, hysterics and fascists could and should have seen as an innocent jest.

And Bailey tried to explain all this at the time, groveling apologies and promising to take the joke off Facebook. Too late, motherfucker! He was hauled off and jailed anyway. The Rapides Parish District Attorney’s Office saw no crime, charged him with none, and let him go. An abject written and public apology and maybe a fruit basket would have been nice, but I see no record of that.

So Bailey sued the Rapides Parish Sheriff’s Office and arresting Detective Randell Iles for violating his constitutional rights, which they did, and false arrest, which it was.

U.S. District Judge David C. Joseph dismissed the lawsuit with prejudice, concluding that Waylon’s joke was not covered by the First Amendment. Joseph had been confirmed by the Senate for the post a year earlier after being nominated by President Trump. Clearly Senator Kennedy only quizzes incompetent nominees on Constitutional law when they are nominated by Democrats. Joseph even cited the hoary and widely misunderstood analogy once used by Justice Oliver Wendell Homes to describe speech not protected by the Constitution. “Publishing misinformation during the very early stages of the COVID-19 pandemic and [a] time of national crisis,” Judge Joseph concluded, “was remarkably similar in nature to falsely shouting fire in a crowded theatre.” No, in fact it was not. Neither would be shouting, “ZOMBIES!” in a crowded theater.

Joseph ruled that the hysterical arrest was based on probable cause (wrong), and that Iles was protected by qualified immunity, the controversial doctrine limiting civil rights claims against government officials to cases where their alleged misconduct violated “clearly established” law.

The judge wasn’t up to date on his constitutional law (Oh, Senator Kennedy! Where are you?). The 1969 case Brandenburg v. Ohio, a SCOTUS decisionevery law student is taught, saw the Supreme Court declaring that even advocacy of criminal conduct is constitutionally protected unless it is “directed” at inciting “imminent lawless action” and “likely” to do so. Bailey’s joke didn’t qualify.

After getting some pro bono legal support, Bailey petitioned the U.S. Court of Appeals for the 5th Circuit to overrule Joseph, which should have been an easy call and was. Writing for a unanimous 5th Circuit panel last August, Judge Dana M. Douglas said Joseph “applied the wrong legal standard.”

Douglas was appointed by Joe Biden. So there.

“At most, Bailey ‘advocated’ that people share his post by writing ‘SHARE SHARE SHARE,'” Douglas wrote. “But his post did not advocate ‘lawless’ and ‘imminent’ action, nor was it ‘likely’ to produce such action. The post did not direct any person or group to take any unlawful action immediately or in the near future, nobody took any such actions because of the post, and no such actions were likely to result because the post was clearly intended to be a joke. Nor did Bailey have the requisite intent to incite; at worst, his post was a joke in poor taste, but it cannot be read as intentionally directed to incitement.”

“On its face, Bailey’s post is not a threat,” Douglas wrote for the Court. “But to the extent it could possibly be considered a ‘threat’ directed to either the public—that RPSO deputies would shoot them if they were ‘infected’—or to RPSO deputies—that the ‘infected’ would shoot back—it was not a ‘true threat’ based on context because it lacked believability and was not serious, as evidenced clearly by calls for rescue by Brad Pitt. For the same reason, Bailey did not have the requisite intent to make a ‘true threat.'”

The 5th Circuit also held that Iles should have known that Bailey’s post was protected speech. Gee, ya think? “Based on decades of Supreme Court precedent,” Douglas said, “it was clearly established that Bailey’s Facebook post did not fit within one of the narrow categories of unprotected speech, like incitement or true threats.” In short, no qualified immunity for you, ignoramus. “Iles is not entitled to qualified immunity,” Douglas wrote, “because no reasonable officer could have found probable cause to arrest Bailey for violating the Louisiana terrorizing statute in light of the facts, the text of the statute, and the state case law interpreting it.”

Moreover, the 5th Circuit held that Iles “chilled” Bailey’s rights of free speech, and I would add, probably permanently. I doubt that he’ll be making any satirical jokes on social media again, even with the cushion of an extra 200,000 dollars in damages. The judge noted that Bailey promised to delete his post after his arrest, clearly intimidated. 

With that ringing support, Bailey had an opportunity to persuade a jury that his First Amendment rights and the Fourth Amendment’s prohibition against”unreasonable searches and seizures”had been breached, and that he had a valid state claim of false arrest. Finally, almost four years after his abuse by law enforcement and the courts, he had won significant damages, and also maybe a battle for future social media wags trying to make a point.

Ben Field, a lawyer for the Institute for Justice that helped Waylon bring his appeal, told reporters that “our First Amendment rights aren’t worth anything if courts won’t hold the government responsible for violating them.” Bailey’s case, he said, “now stands as a warning for government officials and as a precedent that others can use to defend their rights.”

This was progress. I told you there is hope!

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Source: Reason