https://reason.com/2023/08/30/a-ruling-against-a-man-arrested-for-a-covid-19-joke-highlights-the-influence-of-a-pernicious-analogy/https://www.washingtonpost.com/nation/2023/08/30/covid-joke-terrorism-court-ruling/Yesterday the 5th Circuit Court of Appeals issued a ruling in favor of citizen Waylon Bailey of Louisiana, striking down an order by federal Judge David Joseph of the Western District from July 2022, a previous ruling which had denied Bailey the right to sue the federal government for an unconstitutional arrest in 2020. But what did Waylon Bailey do in September of 2020? He posted the following message on facebook:
After having a chuckle at his obvious World War Z reference, a dozen armed officers of the Rapides Parish Sheriff's Office burst into Waylon Bailey's home with guns drawn, ordered him on his knees and arrested him on felony charges punishable by up to 15 years in prison. They had no warrant to enter his premises nor to arrest him, and cited his "terroristic threat" as exigent circumstances to justify the raid. The local prosecutor at least recognized the farce and wanted nothing to do with it and declined to file charges against Bailey. He sought remedy in the courts for the damages he suffered by the unconstitutional arrest and the reports on TV naming him as a terrorist, but that's where his civil case met Judge David Joseph.
Judge Joseph ruled that Bailey's suit should be summarily dismissed, that the sheriffs were protected by qualified immunity because the arrest of Bailey actually
was justified. Judge Joseph argued that by posting Covid 'misinformation' in the early days of the pandemic, Bailey was "inciting imminent lawless action" (!?) and "was remarkably similar in nature to falsely shouting fire in a crowded theatre". Any astute observer of the American judicial system, or any lawyer who can pass a bar, or any judge who has at least two functioning neurons in his brain, will recognize the phrase "fire in a crowded theater" as the precedent on the limits of free speech set by Olivier Wendell Holmes Jr in
Schenck v United States in 1919. A decision that Holmes himself rued and eroded in
Abrams, one overturned by
Brandenburg v Ohio, one infamously and popularly misquoted all the fucking time by people who should not be allowed within 100 ft of a courtroom. A bit like if a judge struck down Barack Obama's election by declaring that 'human property' cannot become president of the united states due to the precedent set in Dred Scott v Sanford.
So thanks to a streak of basic competence by the 5th, Bailey's suit can go forward, the higher court ruling that his first amendment rights were violated and the sheriffs had no probable cause to arrests him and were not entitled to qualified immunity. Good thing he wasn't present on January 6th or they'd just have summarily executed him and his estate would have to file the suit.