Sentencing a man arrested for a COVID-19 joke highlights the insidious effect of the analogy


In March 2020, about a dozen sheriff’s deputies wearing body armor burst into the home of Waylon Bailey in Rapides Parish, Louisiana, with their guns drawn, ordered him to his knees with his hands on his head, and arrested him for a felony. It is punishable by up to 15 years in prison. The SWAT-style raid was provoked by a Facebook post in which Billy made a zombie-themed joke about COVID-19.

Although the Federal Court of Appeal recently to rule That Bailey could pursue civil rights claims based on that incident, the judge initially blocked his lawsuit, saying his joke created a “clear and present danger” similar to the threat posed by “falsely shouting about shooting in a theater and causing a panic.” that resolution It demonstrates the continuing influence of a century-old false analogy that is so often used as a metric an excuse To punish or censor constitutionally protected expression.

Billy’s joke referenced the 2013 zombie movie world war gStarring Brad Pitt. Bailey quipped that the Rapids Parish Sheriff’s Office (RPSO) told deputies to shoot “infected” people on sight, adding: “Lord have mercy on us all. #Covid9teen #weneedyoubradpitt.”

RPSO Investigator Randle Ells, who was promptly appointed to investigate the post, alleged that he violated a State Law Against “terrorizing” the public. But like the US Court of Appeals for the Fifth Circuit male Last Friday, Bailey’s behavior clearly did not fit the elements of that crime, which explains why the Public Prosecution Service dropped the charge following local press reports. tarred Billy as a terrorist.

The fifth constituency was canceled in July 2022 resolution US District Judge David C. Joseph dismissed Bailey’s claims against Ailes and Sheriff Mark Wood. Joseph, who thought Ailes had probable cause for Bailey’s arrest, said he “spread misinformation during the very early stages of the COVID-19 pandemic and [a] The time of national crisis was remarkably similar in nature to the false shouting of gunfire in a crowded theatre.

And that was a reference to Schenck v. United States, a 1919 case in which the US Supreme Court unanimously upheld the Espionage Act convictions of two socialists who had distributed anti-conscription leaflets during World War I. Writing for the court, Judge Oliver Wendell Holmes Jr. said: “A stricter protection of free speech would not protect a man from falsely shooting in a theater and causing a panic.”

And in the 1969 issue Brandenburg vs. OhioThe court modified the “clear and present danger” test it applied shink– a point that Joseph somehow ignored. under BrandenburgEven advocating criminal behavior is constitutionally protected unless it is “directed” at incitement to “imminent unlawful action” and is “likely” to do so – an exception to the First Amendment which obviously did not cover Bailey’s joke.

despite of shink The law is no longer good, and Holmes’s passing comment about shouting fire is still found in judicial decisions and in popular discourse. After last year’s racist shooting in Buffalo, for example, New York Governor Kathy Hochul declared summoned This analogy as a justification for censoring “hate speech” on the Internet, which she said Incorrectly The claim is not protected by the First Amendment.

Even Judge Samuel Alito has it Quote “Shouting fire in a crowded theatre” as a well-established First Amendment exception. However, Holmes’ description of this scenario, which had nothing to do with the facts of the case, established no such principle.

Presumably, Alito had in mind a situation like the kind covered under Louisiana’s “terrorism” statute, which, among other things, criminalizes willfully causing the “evacuation of a building” by falsely reporting “conditions dangerous to human life.” But as Hochul Like-minded advocates to Speech restrictions See it, the measurement extends much further.

“Anyone who says, ‘You can’t shout fire in a crowded theater,’ is showing that they don’t know much about the principles of free speech,” said Greg Lukianoff, president of the Foundation for Individual Rights and Expression. notice in 2021. “This old liar, a favorite reference of censorship advocates, should be retired.”

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