Back in March 2020, about a dozen sheriff’s deputies in bulletproof vests, guns drawn, stormed Waylon Bailey’s home in Rapides Parish, Louisiana, ordered him to get on his knees with his hands on his head and arrested him for a felony, punishable by up to 15 years in prison.
The SWAT-style raid was provoked by a Facebook post in which Bailey made a zombie joke about COVID-19.
Although a federal appeals court recently ruled that Bailey could pursue civil rights claims based on the incident, a judge initially blocked his lawsuit on the grounds that his joke created a “clear and present danger,” similar to the threat posed by “fake fire shouting in a theater.” persist and cause panic.”
This decision illustrates the enduring influence of a misshapen, centuries-old analogy, which is often used as a pretext for punishing or censoring constitutionally protected speech.
Bailey’s joke alluded to the 2013 zombie film World War Z starring Brad Pitt.
Bailey joked that the Rapides Township Sheriff’s Office ordered officers to shoot “those infected” immediately, adding, “Lord have mercy on us all.” #Covid9teen #weneedyoubradpitt.”
RPSO detective Randell Iles, who was immediately assigned to investigate the post, claimed it violated a state law against “terrorizing” the public.
But as the US Circuit Court of Appeals for the Fifth Circuit found last Friday, Bailey’s behavior clearly did not fit the elements of this crime, which explains why prosecutors dropped the charges after local press reports labeled Bailey a terrorist.
The Fifth Circuit reversed a July 2022 decision in which U.S. District Judge David C. Joseph dismissed Bailey’s claims against Iles and Sheriff Mark Wood.
Joseph, who believed Iles had a probable reason for arresting Bailey, said: “The release of misinformation in the very early stages of the COVID-19 pandemic and…” [a] The time of a national crisis remarkably resembled the false scream of fire in a crowded theater.”
This referred to the 1919 case of Schenck v. United States, in which the US Supreme Court unanimously upheld the Espionage Act convictions of two Socialists who had distributed anti-conscription leaflets during World War I.
Judge Oliver Wendell Holmes Jr. wrote for the court: “The strictest protections of free speech would not protect a man from falsely calling fire and causing panic in a theater.”
In Brandenburg v. Ohio in 1969, the court changed the “clear and present danger” test it had used in Schenck—a point Joseph had somehow overlooked.
Under Brandenburg, even advocating criminal behavior is constitutionally protected unless it is aimed at inciting “immediate unlawful acts” and is “likely” to be the case — a First Amendment exception that clearly did not cover Bailey’s joke .
Though Schenck is no longer good law, Holmes’ casual remark about screaming fire lives on in court decisions and public discourse.
After last year’s racist mass shooting in Buffalo, for example, Gov. Kathy Hochul invoked the settlement as justification for censoring “hate speech” online, which she falsely claimed was not protected by the First Amendment.
Even Judge Samuel Alito has cited “fire screaming in a crowded theater” as an established exception to the First Amendment.
But Holmes’ description of this scenario, which had nothing to do with the facts of the case, did not establish such a principle.
Alito probably had in mind a situation such as that contained in the Louisiana “terrorism” statute, which makes it a crime, among other things, to intentionally cause “evacuation of a building” by falsely reporting “a circumstance dangerous to human life.” .
But from the perspective of hochul and like-minded speech-restriction advocates, the analogy goes much further.
“Anyone who says, ‘You mustn’t shout fire!’ “In a crowded theater shows they don’t know much about the principles of free speech,” noted Greg Lukianoff, president of the Foundation for Individual Rights and Expression, in 2021.
“This old duck, a favorite reference of censorship apologists, needs to be retired.”
Jacob Sullum is Senior Editor at Reason magazine.