Appeals Court Brings Zombie-Joke Lawsuit Back From the Dead

Ben Field
Ben Field
Caroline Grace Brothers
Caroline Grace Brothers  ·  September 25, 2023

It should be obvious that the First Amendment protects making a joke about the government. But a sheriff’s office in central Louisiana and a federal district court didn’t see it that way. Fortunately, with the help of IJ on appeal, the 5th Circuit reached just that commonsense conclusion and, in the process, pared back the pernicious doctrine of qualified immunity.

Waylon Bailey was bantering with friends on Facebook at the beginning of the COVID-19 pandemic. He made a post jokingly comparing the circumstances to a zombie apocalypse, replete with emoji and a hashtag reference to Brad Pitt’s star turn in the movie World War Z. But the local sheriff’s office was the butt of the joke and didn’t appreciate it, promptly dispatching a SWAT team to arrest Waylon under a state terrorism statute. Waylon’s name and face were all over the local news. When a prosecutor sensibly dropped the absurd charges, Waylon sued the arresting deputy and the sheriff’s office for violating his right to free speech and his Fourth Amendment right against the baseless and warrantless arrest.

But the district court granted the officials qualified immunity. Worse still, it held that Waylon’s speech wasn’t protected by the First Amendment at all, basing this conclusion on World War I-era precedents that allowed the Wilson administration to jail its critics.

That’s when IJ came into the picture, appealing Waylon’s case to the 5th Circuit. And in late August, that court delivered a resounding victory for Waylon and for the Constitution.

First, the court held that Waylon’s online speech was clearly protected by the First Amendment. It joined its sister circuits in expressly repudiating the lower court’s reasoning and in recognizing that the U.S. Supreme Court has replaced those cases with First Amendment standards that are far more protective of speech.

Just as important, the 5th Circuit held that the Fourth Amendment doesn’t allow law enforcement officers to arrest first and ask questions later. Rather, arrests must be based on real probable cause to believe somebody committed a crime, and officers charged with enforcing the law must be aware of what the Constitution requires and what the law actually is.

In the process, the court rejected the officials’ claims of qualified immunity, which requires showing that a constitutional right was clearly established before the victim of a constitutional violation can seek redress. Here, the court held, it was crystal clear that an online joke was First Amendment-protected speech: It should have been obvious to the deputies that zombie jokes aren’t terrorism.

All that may seem like common sense, but Liberty & Law readers know well that common sense often doesn’t prevail in suits against government officials. Fortunately, Waylon is now on a clear path to holding the sheriff’s office accountable. And his case will be an important precedent for other IJ cases challenging qualified immunity, retaliation for First Amendment-protected speech, and abridgments of the Fourth Amendment.

Ben Field and Caroline Grace Brothers are IJ attorneys.

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