Andrew Wimer
Andrew Wimer · November 7, 2022

NEW ORLEANS—When Waylon Bailey posted a joke comparing the COVID-19 pandemic to a zombie apocalypse, his Facebook friends got it. His post, using over the top language, emoji and a hashtag referencing the Brad Pitt movie World War Z, warned that the local sheriff’s office had been ordered to shoot the “infected.” But sheriff’s deputies decided to arrest Waylon, without a warrant, under an anti-terrorism law and sent a SWAT team with guns drawn to his garage.

Waylon was taken to jail and booked, but the absurd charge was dropped when a prosecutor reviewed the case. The arrest was plainly an overreaction and trampled Waylon’s free speech rights, but when Waylon brought a civil-rights lawsuit, the deputy responsible for the arrest was 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. Now, Waylon is appealing this decision with the help of the Institute for Justice (IJ), which defends First Amendment rights and challenges immunity doctrines nationwide.

“The First Amendment protects your right to tell jokes, even if you upset the government,” said IJ Attorney Ben Field. “Officials need to be held responsible for how they treated Waylon. His arrest was unnecessary, dangerous and a violation of his First Amendment rights.”

No one called the sheriff’s office over Waylon’s Facebook update. Yet almost immediately after he posted it, supervisors in the Rapides Parish Sheriff’s Office assigned a detective to investigate it. Based only on reading the post, that detective concluded that Waylon had committed a crime, even though he didn’t know anybody who had actually been frightened or even concerned by the post.

“I made a joke that lots of other people were making at the beginning of COVID and if the deputies didn’t like it, they could have called and asked me to take it down,” said Waylon. “Instead, they decided to come with guns drawn, handcuff me and take me to jail. What happened to me was wrong, but no one has been held accountable.”

To grant the deputies qualified immunity, the district court reached back to discredited cases from the World War I era in which political dissenters were jailed for criticizing military policy and the draft. Relying on these dusty precedents, the court found it reasonable for police to treat a zombie joke as an act of terror. But Waylon is now asking the 5th U.S. Circuit Court of Appeals to overturn this ruling and let him hold the deputies and department accountable.

“It’s not a crime to make a joke online,” said IJ Attorney Caroline Grace Brothers “If the police can use their authority to arrest someone for making a joke at their expense, everyone’s rights are at risk.”

Waylon is not the only person in the U.S. who has been arrested for making a joke on Facebook. IJ is also representing Anthony Novak, an Ohio man arrested and prosecuted for a felony by his local police department after he made a parody page. Anthony’s case gained national attention after the parody websites The Onion and The Babylon Beecalled on the U.S. Supreme Court to hear his appeal. The Court is expected to consider taking Anthony’s case in early 2023.

The Institute for Justice is fighting to hold government authorities accountable in cases across the country. In Texas, IJ is representing a city council member arrested by police for her outspoken opposition to the mayor and city manager. Also in Ohio, IJ is suing East Cleveland police and government officials on behalf of a man arrested for his campaign advocacy. Finally, in Wisconsin IJ is representing a woman targeted with zoning citations after speaking out at town meetings.