The Washington PostDemocracy Dies in Darkness

He was arrested for a covid joke. It was free speech, court rules.

An appeals court recently ruled in favor of Waylon Bailey, who was arrested in 2020 after making a joke about the coronavirus pandemic. (Institute for Justice)
5 min

Waylon Bailey woke up Friday morning with the same anxiety that had consumed him for more than three years.

Since Bailey was arrested in March 2020 for a coronavirus joke he posted on Facebook, he has struggled to clear his mind. The felony terrorism charge he faced ruined his life, he said, prompting him to sue two employees from a Louisiana parish’s sheriff’s office. A district court judge later dismissed Bailey’s claims, but Bailey appealed.

On Friday, Bailey was still awaiting a decision. When he checked his phone that afternoon, his angst began to diminish.

His attorney had messaged him the decision from the U.S. Court of Appeals for the Fifth Circuit. Three judges ruled that Bailey’s Facebook post — which joked that the sheriff’s office had issued an order to shoot people infected with the coronavirus — was protected speech under the First Amendment and that he shouldn’t have been arrested.

Bailey can continue pursuing legal action against the sheriff’s office employees, the court ruled.

There “were no facts that would lead a reasonable person to believe that Bailey’s post caused sustained fear,” the judges wrote. “No members of the public expressed any type of concern. Even if the post were taken seriously, it is too general and contingent to be a specific threat.”

Bailey, 30, told The Washington Post that the ruling “was a huge weight off my shoulders.”

“It was a really good feeling knowing that the superior judges thought it was silly, too,” he said. “It just [reassured me about] all of the thoughts and stuff I had these past three years about if I’m overreacting, if it’s even worth it.”

A spokesman for the Rapides Parish Sheriff’s Office declined to comment.

On March 20, 2020 — soon after the coronavirus began spreading across the U.S. — Bailey said he was trying to find a moment of levity amid the national emergency. He compared the pandemic to the zombie apocalypse from “World War Z,” a 2013 movie starring Brad Pitt.

“SHARE SHARE SHARE ! ! ! !” Bailey wrote in an emoji-filled post. “JUST IN: RAPIDES PARISH SHERIFFS OFFICE HAVE ISSUED THE ORDER, IF DEPUTIES COME INTO CONTACT WITH ‘THE INFECTED’ SHOOT ON SIGHT….Lord have mercy on us all. #Covid9teen #weneedyoubradpitt.”

A few hours later, Bailey said he was confused when about a dozen SWAT team members from the Rapides Parish Sheriff’s Office arrived at his Alexandria, La., home with weapons and bulletproof vests. Officials arrested Bailey without a warrant, according to court documents. They later argued that Bailey’s post was a terroristic threat.

Bailey was released on a $1,200 bond later that day, and the district attorney decided not to prosecute him. Still, Bailey said he lost lifelong friends when local news stations reported on his arrest. He said he deleted his social media accounts and barely left his house for months.

In September 2020, Bailey filed a lawsuit alleging Detective Randell Iles and Sheriff Mark Wood violated his First and Fourth amendment rights.

But David Joseph, a U.S. district judge for the Western District of Louisiana, dismissed Bailey’s claims in July 2022. He ruled the defendants were protected by qualified immunity, a doctrine that shields government officials from liability in civil lawsuits unless it’s proved they violated a constitutional right. He wrote that Bailey’s arrest was warranted because his post “may very well have been intended to incite lawless action.”

Bailey appealed Joseph’s decision the next month.

In Friday’s ruling, the appellate judges declared that Bailey’s Facebook post was not a threat and did not incite violence. The reference to Pitt’s fictional character was a giveaway that it was not serious, the court said.

“The post did not direct any person or group to take any unlawful action immediately or in the near future,” the judges wrote. “ … at worst, his post was a joke in poor taste, but it cannot be read as intentionally directed to incitement.”

Iles violated Bailey’s First Amendment right and had no probable cause to arrest Bailey, the court said in its ruling, meaning he is not entitled to qualified immunity.

The case will be tried again in district court. Ben Field, Bailey’s attorney, said the appeals court decision “makes it very clear” that Bailey will win the case.

“It’s a great victory for Waylon and for the Constitution,” Field said. “It clearly lays out that police have to respect First Amendment rights online, and that they can’t wantonly arrest people who make jokes about them.”

Bailey, a professional boxer, was training on Friday when he learned about the decision. He returned to the gym that evening and said he felt like he was floating during his workout.

Bailey isn’t sure his life will return to normal, but said he hopes he will no longer fear his hometown’s sheriff’s office. He’s still seeking money for damages and attorney’s fees and an apology from the sheriff’s office.

But on Saturday, he said he started his day with a clear mind for the first time in years.

“I woke up with a much more blissful feeling,” Bailey said, “knowing the right decision was made.”