Back in March 2020, Waylon Bailey’s home was raided by police because of a Facebook post in which Bailey had made a zombie-themed joke about COVID-19.
., with their guns drawn, ordered him onto his knees with his hands on his head and arrested him for a felony punishable by up to 15 years in prison.
That decision illustrates the continuing influence of a misbegotten, century-old analogy frequently used as an excuse to punish or censor constitutionally protected speech.Bailey jested that the Rapides Parish Sheriff’s Office had told deputies to shoot “the infected” on sight, adding: “Lord have mercy on us all. #Covid9teen #weneedyoubradpitt.”
The Fifth Circuit overturned a July 2022 decision in which US District Judge David C. Joseph dismissed Bailey’s claims against Iles and Sheriff Mark Wood.Joseph, who thought Iles had probable cause to arrest Bailey, said, “publishing misinformation during the very early stages of the COVID-19 pandemic and [a] time of national crisis was remarkably similar in nature to falsely shouting fire in a crowded theatre.
In the 1969 case Brandenburg v. Ohio, the court modified the “clear and present danger” test it had applied in Schenck — a point Joseph somehow overlooked. After last year’s racist mass shooting in Buffalo, for example, Gov. Kathy Hochul invoked the analogy as a justification for censoring online “hate speech,” which she erroneously claimed is not protected by the First Amendment.
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