Waylon lives in Rapides Parish, Louisiana, with his wife (and a baby on the way). He works with his family at the plant nursery in town that they have run for over 60 years. But, like many people around the world, he wasn’t working in March 2020, the early days of the COVID-19 pandemic. Also like many, he was occupying his time on the internet. After he saw a friend make a coronavirus joke on Facebook, Waylon posted his own joke. Using satirically over-the-top-language and emojis, he compared the bizarre COVID-19 situation to a zombie apocalypse, joking that the local sheriff’s office would soon be shooting “the infected.” To make it crystal clear that it was a joke, the post ended with a silly hashtag, “#weneedyoubradpitt,” in reference to the movie star’s zombie film World War Z. Few people even saw the joke post, and nobody was alarmed by it.
Yet the sheriff’s office lacked any sense of humor or proportion. Office leadership assigned a detective to the case. Based solely on his review of Facebook, he promptly went to Waylon’s house with several other armed officers. They stormed upon Waylon with guns drawn, arrested him, and took him to jail. They said his Facebook joke violated a state anti-terrorism law, though when presented with the allegations the district attorney dropped the case.
Even though arresting Waylon was plainly an overreaction and trampled his free speech rights, the courts have refused to hold the sheriff’s office accountable. Instead, when Waylon brought a civil-rights lawsuit, the sheriffs were granted qualified immunity. To add insult to injury, the court also said that Waylon didn’t have any free speech rights to make a joke in the first place, relying on long-discredited World War I-era cases about opposing the draft during wartime. If Waylon’s casual online joking can result in an arrest, then nobody’s online speech is safe.
That’s why Waylon has teamed up with the Institute for Justice (IJ) to appeal his case and to hold the government accountable for violating his free speech rights and unreasonably arresting him. The lawsuit is part of IJ’s long tradition of protecting free speech. And it advances IJ’s Project on Immunity and Accountability, which is devoted to the simple idea that government officials are not above the law; just as citizens must follow the law, the government must follow the Constitution.
Waylon Bailey was arrested after making a joke about his local sheriff's office. His First Amendment lawsuit was dismissed after the deputies were granted qualified immunity.