Bailey v. Iles

Case: 22-30509 Document: 00516544200 Page: 1 Date Filed: 11/14/2022
CASE NO. 22-30509

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
WAYLON BAILEY,
Plaintiff-Appellant,
v.
RANDELL ILES, IN HIS INDIVIDUAL CAPACITY; MARK WOOD, IN HIS OFFICIAL
CAPACITY AS SHERIFF,
Defendants-Appellees
_______________________
Appeal from an Order of the United States District Court for the Western District
of Louisiana, Alexandria Division, The Hon. David C. Joseph (Dist. Ct. No. 1:20-
CV-01211)
_______________________
BRIEF OF THE CATO INSTITUTE, FOUNDATION FOR INDIVIDUAL
RIGHTS AND EXPRESSSION, AND THE AMERICAN CIVIL LIBERTIES
UNION OF LOUISIANA
AS AMICI CURIAE IN SUPPORT OF
PLAINTIFF-APPELLANT
_______________________
Thomas Berry
Nora Ahmed Counsel of Record
AMERICAN CIVIL LIBERTIES Nicholas DeBenedetto
UNION OF LOUISIANA CATO INSTITUTE
1340 Poydras Street, Suite 2160 1000 Mass. Ave., N.W.
New Orleans, LA 70112 Washington, DC 20001
(504) 522-0628 (202) 789-5202
[email protected] [email protected]
Darpana Sheth
FOUNDATION FOR INDIVIDUAL
RIGHTS AND EXPRESSION
510 Walnut Street, Suite 1250
Philadelphia, PA 19106
(215) 717-3473
November 14, 2022 [email protected]
CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT
CASE NO. 22-30509

Bailey v. Iles
The undersigned counsel of record certifies that the following listed persons
and entities as described in Local Rule 28.2.1 have an interest in the outcome of this
case. These representations are made in order that the judges of this court may
evaluate possible disqualification or recusal.
Person or Entity Connection to Case
Thomas Berry Counsel to amicus Cato Institute
Nicholas DeBenedetto Counsel to amicus Cato Institute
Cato Institute Amicus curiae
Darpana Sheth Counsel to amicus FIRE
Foundation for Individual Amicus curiae

Rights and Expression
Nora Ahmed Counsel to amicus ACLU-LA
American Civil Liberties Amicus curiae

Union of Louisiana
Amicus Cato Institute is a Kansas nonprofit corporation that has no parent
companies, subsidiaries, or affiliates, and does not issue shares to the public.
i
Amicus Foundation for Individual Rights and Expression (FIRE) does not
have any parent corporations and no publicly held companies hold 10% or more of
the stock or ownership interest in amicus.
Amicus American Civil Liberties Union of Louisiana (ACLU-LA) is a
nonprofit organization that does not have any parent corporations or issue stock and
consequently there exists no publicly held corporation that owns 10% or more of its
stock.
/s/ Thomas Berry

November 14, 2022
ii
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

DISCLOSURE STATEMENT ...........................................................................i
TABLE OF AUTHORITIES ....................................................................................iv
INTEREST OF AMICI CURIAE ............................................................................... 1
INTRODUCTION AND SUMMARY OF THE ARGUMENT ............................... 3
ARGUMENT ............................................................................................................. 6
I. The First Amendment Clearly Protects Online Humor ................................ 6
II. Schenck, Abrams, and the Other World War I–Era Free Speech
Precedents Are Not Good Law ................................................................... 14
III. Bailey’s Protected Speech Cannot Serve as a Basis for Probable
Cause........................................................................................................... 22
CONCLUSION ........................................................................................................ 23
CERTIFICATE OF COMPLIANCE ....................................................................... 25
CERTIFICATE OF SERVICE ................................................................................ 26
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Abrams v. United States, 250 U.S. 616 (1919) ................................................. 14, 17
Anderson v. Creighton, 483 U.S. 635 (1987) ..........................................................22
Bailey v. Iles, No. 21-01211, slip op. (W.D. La. July 20, 2022) ...................... 19, 20
Brandenburg v. Ohio, 395 U.S. 444 (1969)............................................ 5, 18, 20, 21
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ........................................8
Debs v. United States, 249 U.S. 211 (1919) ..................................................... 14, 16
Dennis v. United States, 341 U.S. 494 (1951) .........................................................17
Farah v. Esquire Mag., 736 F.3d 528 (D.C. Cir. 2013) ............................. 7, 8, 9, 13
FCC v. Pacifica Found., 438 U.S. 726 (1978) ..........................................................7
Frohwerk v. United States, 249 U.S. 204 (1919).............................................. 14, 16
Golb v. AG of N.Y., 870 F.3d 89 (2d Cir. 2017) ........................................................8
Hess v. Indiana, 414 U.S. 105 (1973) ......................................................... 18, 19, 21
Hope v. Pelzer, 536 U.S. 730 (2002) ................................................................ 22, 23
Hustler Mag. v. Falwell, 485 U.S. 46 (1988) ................................................... 6, 7, 8
Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004) .....................................................23
L.L. Bean v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir. 1987) .............................6
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)
..............................................................................................................................14
Matal v. Tam, 137 S. Ct. 1744 (2017) .......................................................................7
Michigan v. DeFillipo, 443 U.S. 31 (1979) .............................................................22
Milkovich v. Lorain J. Co., 497 U.S. 1 (1990)...........................................................8
O’Donnell v. Knott, 283 F. Supp. 3d 286 (E.D. Pa. 2017) ......................................10
Packingham v. North Carolina, 137 S. Ct. 1730 (2017) .........................................10
Powers v. Northside Indep. Sch. Dist., 951 F.3d 298 (5th Cir. 2020) .....................22
Schenck v. United States, 249 U.S. 47 (1919) .............................................. 4, 14, 15
Taylor v. Riojas, 141 S. Ct. 52 (2020) .....................................................................22
iv
United States v. Alvarez, 567 U.S. 709 (2012) ..........................................................7

United States v. Stevens, 559 U.S. 460 (2010) ..........................................................7
White v. Samsung Elecs. Am., Inc., 989 F.2d 1512 (9th Cir. 1993) ..........................6
Whitney v. California, 274 U.S. 357 (1927) ............................................................17
Yankee Pub. Inc. v. News Am. Pub., Inc., 809 F. Supp. 267 (S.D.N.Y. 1992)
................................................................................................................................8
Statutes
42 U.S.C. § 1983 ........................................................................................................3
Other Authorities
28 Days Later, Rotten Tomatoes .............................................................................11
28 Weeks Later, Fandom..........................................................................................12
Best Methods For Staying Safe From Coronavirus, The Onion (Mar. 11,
2020).....................................................................................................................13
Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005) ...........18
James M. McGoldrick, Jr., “This Wearisome Analysis”: The Clear and
Present Danger Test from Schenck to Brandenburg, 66 S.D.L. Rev. 56
(2021) ................................................................................................ 15, 16, 17, 18
Max Hall, Benjamin Franklin & Polly Baker: The History of a Literary
Deception (1960) ....................................................................................................9
Phillip Deen, What Moral Virtues Are Required to Recognize Irony?, 50 J.
Value Inquiry 51 (2016) .........................................................................................9
Ronald J. Krotoszynski, Jr., The Clear and Present Dangers of the Clear and
Present Danger Test, 72 SMU L. Rev. 415 (2019) ...................................... 15, 17
World War Z, Paramount Movies ............................................................................11
v
INTEREST OF AMICI CURIAE1

The Cato Institute was established in 1977 as a nonpartisan public policy
research foundation dedicated to advancing the principles of individual liberty, free
markets, and limited government. Cato’s Robert A. Levy Center for Constitutional
Studies was established in 1989 to promote the principles of limited constitutional
government that are the foundation of liberty. Toward those ends, Cato publishes
books and studies, conducts conferences, and issues the annual Cato Supreme Court
Review. This case interests Cato because it concerns the application of basic First
Amendment principles to social media, a critically important issue in the digital age.
The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan,
nonprofit organization dedicated to defending the individual rights of all Americans
to free speech and free thought—the essential qualities of liberty. Since 1999, FIRE
has successfully defended First Amendment rights on campuses nationwide through
public advocacy, targeted litigation, and amicus curiae filings in cases that implicate
expressive rights. Recently, FIRE expanded its mission to protect free expression
beyond colleges and universities. It currently represents various plaintiffs in lawsuits
seeking damages for First Amendment violations under 42 U.S.C. § 1983. Because
1
Fed. R. App. P. 29 Statement: No counsel for either party authored this brief in any
part. No person or entity other than amici made a monetary contribution to its
preparation or submission. All parties have consented to the filing of this brief.
1
of its decades of experience defending freedom of expression, FIRE is keenly aware
of the need for a legal remedy when government officials violate First Amendment
rights. FIRE writes to urge the Court to reverse the decision below, making clear
that courts should preserve that legal remedy and deny qualified immunity when
clearly established First Amendment principles would have given public servants
fair warning of a constitutional violation, especially when the officials responsible
had time to recognize those principles.
The American Civil Liberties Union of Louisiana (ACLU-LA) is a statewide,
nonprofit, nonpartisan public-interest organization with thousands of members
across the state, all of whom are dedicated to the principles of liberty and equality
embodied in the U.S. Constitution and our nation’s civil rights laws. In particular,
ACLU-LA works to secure the First Amendment rights of all Louisianians. Given
its longstanding commitment to protection of the U.S. Constitution and the First
Amendment specifically, and the dozens of cases it is currently litigating through its
Justice Lab program on behalf of clients seeking constitutional vindication under
Section 1983, the proper resolution of this case is a matter of substantial importance
to ACLU-LA, its members, and its clients.
2
INTRODUCTION AND SUMMARY OF THE ARGUMENT
In March of 2020, Waylon Bailey was arrested by a SWAT team for making
a joke on Facebook. Bailey’s joke made light of the chaos of the unfolding pandemic
by posting a faux-urgent warning to his Facebook friends that his local sheriff’s
office had been instructed to shoot “the infected” on sight. His over-the-top
Facebook post was complete with all-caps text, emojis, and a hashtag,
“#weneedyoubradpitt,” referring to Brad Pitt’s role in a zombie movie. Exchanges
between Bailey and his friends in the comments on the post made it clear that Bailey
was joking and that his friends and readers were in on the joke.
Despite all this evidence of the post’s innocuous nature, Bailey was arrested
for violating Louisiana’s terrorizing statute. The arresting officer was Detective
Randell Iles, with the Rapides Parish Sherriff’s Office. Iles contended that Bailey’s
obvious joke was an attempt to sow dangerous chaos and confusion.
The humorless nature of this absurd arrest was not lost on the prosecutor, who
immediately dropped the charges as soon as he became aware of them. Bailey then
sought to vindicate his First and Fourth Amendment rights by filing suit against
Sherriff Mark Wood and Detective Iles under 42 U.S.C. § 1983. He also brought
state law claims for malicious prosecution and false arrest.
The district court, however, erroneously granted the officers qualified
immunity by applying a long-since discredited legal standard to conclude that
3
Bailey’s obvious joke on Facebook was not protected speech. The court applied the
now 100-year-old “clear and present danger” test from Schenck v. United States, 249
U.S. 47 (1919) to wrongly conclude Bailey’s speech was beyond the reach of the
First Amendment because of its serious implications in light of the pandemic.
In reaching this conclusion, the district court failed to recognize the clearly
established protections for humor under the First Amendment. The court also
revived an obsolete test that permits the government to jail speakers based on a
remote possibility that the speech in question might lead to unlawful action. The
reasoning of the district court places millions of present and future speakers in
jeopardy of criminal sanctions. This Court should vindicate the guarantees of the
First Amendment and reverse the district court.
The Supreme Court has explicitly recognized First Amendment protection for
parody. Humor in all of its permutations is a vital part of the free speech ecosystem
and is rightly afforded robust protection under the First Amendment. This
necessarily means that the First Amendment applies to jokes that don’t work and
aren’t funny in the same way it protects the next work of comedic genius.
When evaluating whether a joke is eligible for First Amendment protection,
Courts consider whether a reasonable reader, accounting for the relevant context,
would understand the speech in question to be a joke. This straightforward standard
is adaptable to new mediums such as social media. Even though the form humor
4
takes might evolve with time, the First Amendment protects old and new material
alike. Because a reasonable reader would have understood Bailey’s post to be
humorous rather than serious, it was protected speech under clearly established law.
Further, Schenck does not override the Constitution’s protections for parody
because every reasonable officer would have known Schenck is no longer good law.
When the district court concluded that Bailey’s obvious joke was not protected
speech, it did so by relying on outmoded First Amendment precedents from the
World War I era. This period is often considered the nadir of free speech in the
United States. The “clear and present danger” test from Schenck allowed the
government to arrest and jail individuals for speech that made lawless actions even
slightly more likely, regardless of how tenuous the connection was between the
speech and the alleged harm.
The district court’s reliance on Schenck and related World War I precedents
was error because those cases have been superseded. The “clear and present danger”
standard articulated in Schenck has been replaced with the “imminent lawless
action” standard from Brandenburg v. Ohio, 395 U.S. 444 (1969), which is much
more speech protective than its predecessor.
The district court erred in granting qualified immunity to Detective Iles
because a reasonable police officer would have recognized Bailey’s speech as a joke
and understood that arresting Bailey for posting a joke on Facebook would violate
5
his First Amendment rights. This Court should reverse the district court’s grant of
summary judgment to appellees and remand for further proceedings.
ARGUMENT
I. The First Amendment Clearly Protects Online Humor
If the First Amendment protects anything, it surely protects ordinary citizens
from being arrested for making jokes. Humor—including political humor, parody,
and satire—holds a storied place in American tradition and can be used to express a
distinct viewpoint just as much as non-humorous speech does. See, e.g., Hustler
Mag. v. Falwell, 485 U.S. 46, 54 (1988); L.L. Bean v. Drake Publishers, Inc., 811
F.2d 26, 28 (1st Cir. 1987). “The First Amendment isn’t just about religion or
politics—it’s also about protecting the free development of our national culture.
Parody, humor, irreverence are all vital components of the marketplace of ideas.”
White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1519 (9th Cir. 1993) (Kozinski,
J., dissenting from denial of rehearing en banc). For this reason, the Supreme Court
has recognized that humorous viewpoints are entitled to full First Amendment
protection. See Hustler Mag., 485 U.S. at 56.
The exercise of First Amendment freedoms “will not always be reasoned or
moderate.” Id. at 51. Jokes may be crude or offensive, but that does not justify
diminished First Amendment protection. The fact that a joke, or the view that it
expresses, may give offense is “not sufficient reason for suppressing it,” but rather
6
“a reason for affording it constitutional protection.” Id. at 55 (quoting FCC v.
Pacifica Found., 438 U.S. 726, 745 (1978)). Offensive and critical speech expresses
a distinct viewpoint just as much as friendly and supportive speech does, and that
viewpoint is entitled to full First Amendment protection. See id. at 56 (“[I]t is a
central tenet of the First Amendment that the government must remain neutral in the
marketplace of ideas.”); see also Matal v. Tam, 137 S. Ct. 1744, 1764 (2017) (“[A
government] interest in preventing speech expressing ideas that offend . . . . strikes
at the heart of the First Amendment.”) (plurality op.). The Supreme Court has
repeatedly made clear that nearly all speech is protected with exceptions only “in a
few limited areas.” United States v. Stevens, 559 U.S. 460, 468 (2010). These limited
areas include speech expressed as part of crime, obscene expression, incitement to
imminent lawless action, and fraud. United States v. Alvarez, 567 U.S. 709, 716, 720
(2012). Humor and parody do not fall into one of these “limited areas” and are thus
fully protected. Hustler Mag., 485 U.S. at 56–57.
Courts have recognized that humor comes in many forms. As the D.C. Circuit
acknowledged, “[s]ometimes satire is funny . . . othertimes it may seem cruel and
mocking . . . and sometimes it is absurd.” Farah v. Esquire Mag., 736 F.3d 528, 536
(D.C. Cir. 2013). Taste and opinions will naturally vary as to whether a given joke
is brilliant or crass. That is all the more reason why neither judges nor juries may
permissibly draw subjective lines as to which jokes are valuable and worthy of First
7
Amendment protection. As the Supreme Court has explained, permitting such line-
drawing could “allow a jury to impose liability on the basis of the jurors’ tastes or
views, or perhaps on the basis of their dislike of a particular expression.” Hustler
Mag., 485 U.S. at 55. Instead, to “assur[e] that public debate will not suffer for lack
of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally
added much to the discourse of our Nation,” the Court has held that any satirical or
humorous statement is protected so long as it “cannot reasonably be interpreted as
stating actual facts” about its subject. Milkovich v. Lorain J. Co., 497 U.S. 1, 20
(1990) (cleaned up).
Accordingly, the mere fact that some members of a joke’s audience may be
fooled into believing it is true does not deprive it of First Amendment protection.
See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583 (1994) (“First
Amendment protections do not apply only to those who speak clearly, whose jokes
are funny, and whose parodies succeed.” (quoting Yankee Pub. Inc. v. News Am.
Pub., Inc., 809 F. Supp. 267, 280 (S.D.N.Y. 1992))); Farah, 736 F.3d at 536 (“[I]t
is the nature of satire that not everyone ‘gets it’ immediately.”); Golb v. AG of N.Y.,
870 F.3d 89, 102 (2d Cir. 2017) (“[A] parody enjoys First Amendment protection
notwithstanding that not everybody will get the joke.”).
Examples abound of satirical publications that were initially regarded as true.
Greek playwright Aristophanes’ The Clouds “was so misunderstood as praising
8
immorality that he had to insert a deadly serious scene directly criticizing an earlier
audience for not catching the satire.” Phillip Deen, What Moral Virtues Are Required
to Recognize Irony?, 50 J. Value Inquiry 51, 52 (2016). Numerous people, including
a member of Congress, have mistaken stories from The Onion, a popular satirical
“news source,” as real news. See id. at 51. Many readers of Benjamin Franklin’s
“The Speech of Polly Baker,” which protested society’s double standards for men
and women, believed it to be a genuine account of court proceedings. Max Hall,
Benjamin Franklin & Polly Baker: The History of a Literary Deception 16–24, 33,
61 (1960). And even when some audience members are confused, a parody should
not be required to give up the joke in order to receive First Amendment protection.
Such a requirement would undermine the effectiveness of parody.
The touchstone instead is the understanding of a reasonable reader, given the
full context of the expression. And given the “special characteristics” of humor,
“‘what a reasonable reader would have understood’ is more informed by an
assessment of her well-considered view than by her immediate yet transitory
reaction.” Farah, 736 F.3d at 536.
The internet and social media have engendered new forms and genres of
humor, but these First Amendment principles remain the same regardless of the form
a joke may take. Social media allows humorists to share their jokes in a forum that
has become “the modern public square.” Packingham v. North Carolina, 137 S. Ct.
9
1730, 1737 (2017). In one case, a woman created a parody social media account on
Disqus (a social media site similar in functionality to Twitter) mocking Kathryn
Knott, who had been charged in a high-profile assault case and who was the daughter
of a local chief of police. O’Donnell v. Knott, 283 F. Supp. 3d 286, 291–92 (E.D.
Pa. 2017). Using the profile name “Knotty is a Tramp” and an unflattering photo of
Knott as a profile picture, the account posted comments under stories of the assault
case such as “That’s why I should get off because daddy is a chief of police.” Id. at
292, 297.
Social media may be a novel format and a new vehicle for humor, but the First
Amendment principle remains the same: “speech is protected when, viewed in the
appropriate context, it does not reasonably purport to state an actual fact about the
subject of the [joke].” Id. at 299. Because it was “entirely plausible that a reasonable
reader would not believe that Kathryn Knott would publicly” write the comments at
issue, the court found that the comments were plausibly protected speech. Id. at 301–
02 (emphasis in original).
In sum, First Amendment protection for humor is not diminished because
some may be offended, because some may be fooled, or because the format is a
novel one like social media. If a reasonable reader, upon full reflection, understands
the speech to be a joke rather than a claim of fact, that speech is protected by the
First Amendment.
10
Applying these principles to this case, there is no doubt that Bailey’s post was
protected speech. At the time Iles viewed Bailey’s post, there was plenty of context
for the reasonable reader to consider. Both the post itself and the comments left by
others clearly indicated its humorous nature.
First, the content of Bailey’s post itself revealed its unserious nature. Over-
stylized all-caps text combined with red exclamation point emojis and a shocked
face emoji is not how one would normally convey a serious news bulletin. ROA.100.
Additionally, the hashtag “#weneedyoubradpitt” was clearly a reference to the 2013
film World War Z, starring Brad Pitt as the hero who is “called upon to help stop the
chaotic pandemic that has gripped populations around the world” and transformed
the infected into zombies.2
The premise of a pandemic turning the infected into zombie hordes is not
unfamiliar to Americans, and thus a natural source of humor during an uncertain
time. In 2002, the film 28 Days Later told the story of a group of animal rights
activists who freed a caged chimp infected with a virus from a medical research lab.3
The virus then infected the humans and transformed the infected into a zombified
2
See World War Z, Paramount Movies, https://bit.ly/3zYJiJf.
3
28 Days Later, Rotten Tomatoes, https://bit.ly/3UCaoxG.
11
state. The sequel, 28 Weeks Later, featured promotional advertising that depicted a
human face wearing what appears to be a N-95 mask.4
If the absurd notion that the police were instructed to shoot and kill those
infected with COVID-19 combined with a hashtag referencing Brad Pitt weren’t
enough to give away the joke, then the clear echoes to the popular “infected zombie”
genre in American media would have been sufficient to give the reasonable reader
pause before concluding that Bailey’s post was serious.
In addition to Bailey’s post itself, the comments left by his friends also gave
away the joke. The district court took notice of the comments but failed to fully
consider the relevant context. Bailey’s post elicited comments and back-and-forth
banter from his Facebook friends. One of his friends who understood the joke
commented “lol and he talking about my post gonna get flagged [] he wins.”
ROA.382. Contained within that response was an emoji representing someone
crying with laughter. ROA.382. This clearly demonstrated that the commenter
understood that the post was not serious. In response, Bailey stated, “this is your
fault” and added the over-the-top all caps “YOU MADE ME DO THIS.” ROA.382.
Just as the D.C. Circuit recognized that a reasonable reader who possessed a
“baseline of knowledge” would use relevant context to distinguish facts from satire
4
28 Weeks Later, Fandom, https://bit.ly/3UiijjU.
12
in the context of a political blog, in this case, all of the aforementioned context was
available to a reasonable reader with a basic understanding of Facebook and some
experience online. That reader’s “well considered view” would have incorporated
the knowledge of these posts and comments, even if the obviousness of Bailey’s joke
wasn’t already apparent. Farah, 736 F.3d at 536–38.
Ultimately, the reasonable reader would have known that Bailey’s Facebook
post was humor. It could not have been a terroristic message because a reasonable
reader would have understood it to be a parody of apocalyptic news stories, not a
real warning. Its hyperbole, its zombie-media tropes, and its reference to a particular
zombie movie all clearly signaled to a reasonable reader that it was not a serious
news bulletin. Bailey’s post was a commentary on the paranoia of the moment, just
like The Onion’s faux-advice to readers in March of 2020 that “If you believe a
passenger may be infected, be prepared to rush the cockpit and crash the plane to
save America.”5 Both The Onion’s warning and Bailey’s joke were understood by
their readers to be parodies, and both were protected by the First Amendment. The
sole difference between the two is that only Bailey was arrested for his speech.
5
Best Methods For Staying Safe From Coronavirus, The Onion (Mar. 11, 2020),
https://bit.ly/3tb9fl7.
13
II. Schenck, Abrams, and the Other World War I–Era Free Speech
Precedents Are Not Good Law
Despite Bailey’s post being obvious parody and commentary, the district court
nonetheless held that it was unprotected speech, and thus that Bailey could have been
arrested (and even jailed!) for his speech. To reach this conclusion, the district court
erroneously relied on outmoded precedent and improperly framed the test to be
applied.
In concluding that Bailey’s Facebook joke was unprotected speech, the district
court relied in part on the “clear and present danger” test from Schenck. But in the
years since 1919, the infamous World War I–era precedents upholding criminal
prosecutions for anti-war speech, including Schenck, Frohwerk,6 Debs,7 and
Abrams,8 have been superseded by key precedents which are more speech-protective
and demand far greater scrutiny of government attempts to suppress speech. Despite
this well-known evolution in the law, the district court nevertheless exhumed these
precedents and allowed them to “stalk our [free speech] jurisprudence once again”
like “ghoul[s] in a late-night horror movie that repeatedly sit[] up in [their] grave[s]
and shuffle[] abroad, after being repeatedly killed and buried.” Lamb’s Chapel v.
Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J.,
6
Frohwerk v. United States, 249 U.S. 204 (1919).
7
Debs v. United States, 249 U.S. 211 (1919).
8
Abrams v. United States, 250 U.S. 616 (1919).
14
concurring). The specter of Schenck’s attempted resurrection is far more frightening
than the infected hordes to which Bailey referred in his absurd Facebook post.
The Schenck-era cases have been superseded, most significantly, by the
Supreme Court’s adoption of a narrower standard for speech that incites
unlawfulness. In Schenck, the Court upheld a criminal conviction punishing anti-war
speech under the Espionage Act of 1917. The defendants distributed leaflets urging
men not to submit to the draft or enter military service and likened the draft to the
involuntary servitude prohibited by the Thirteenth Amendment. Schenck, 249 U.S.
at 50–51. Justice Holmes, writing for the Court, infamously asserted that “[t]he most
stringent protection of free speech would not protect a man in falsely shouting fire
in a theatre and causing a panic.” Id. at 52. He further wrote that “[t]he question in
every case is whether the words used are used in such circumstances and are of such
a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent.” Id.
This version of the test for incitement, also known as the “bad tendencies test,”
enabled the government to criminalize speech if it made unlawful conduct more
likely to take place. See Ronald J. Krotoszynski, Jr., The Clear and Present Dangers
of the Clear and Present Danger Test, 72 SMU L. Rev. 415, 421–423 (2019); see
also James M. McGoldrick, Jr., “This Wearisome Analysis”: The Clear and Present
Danger Test from Schenck to Brandenburg, 66 S.D.L. Rev. 56, 59–70 (2021). In
15
Frohwerk, Holmes further illustrated just how easily speech could be placed beyond
the First Amendment’s protection under this test when he wrote for the Court that
an anti-war paper could be suppressed because it might have been found “that the
circulation of the paper was in quarters where a little breath would be enough to
kindle a flame” and that the authors knew the paper might be read by men subject to
the draft. 249 U.S. at 209 (emphasis added); McGoldrick, supra, at 69.
Finally, in Debs, the Supreme Court upheld the conviction of socialist activist
and politician Eugene V. Debs for delivering the same anti-war speech twice in
violation of the Espionage Act. Although Debs’s speech was “nuanced” and tried
“to walk the line between supporting his anti-war cause and not violating the
Espionage Act,” the Court nonetheless “held Debs’s caution against him, pointing
out that he was encouraging his listeners to infer more from his statements than
appeared on their face.” McGoldrick, supra, at 70. “Debs ‘used words tending to
obstruct the recruiting service’ which ‘meant that they should have that effect.’ Not
only did words only have to indirectly affect or have the tendency to obstruct the
draft, that very tendency was enough to show the intent to obstruct the draft.” Id.
(quoting Debs, 249 U.S. at 216).
Subsequently, in Abrams, the Court once again upheld convictions for speech
critical of the United States’ actions in World War I, this time under the 1918
amendments to the Espionage Acts. But in the short time between the Court’s
16
opinions in Schenck and Abrams, Justice Holmes had changed his view. Holmes
dissented in Abrams, along with Justice Brandeis. And Holmes’s dissent planted the
seeds for the modern (and narrower) incitement test the Supreme Court would adopt
50 years later. 250 U.S. at 624–631 (Holmes, J., dissenting); see also Krotoszynski,
supra, at 423 (“Under the Abrams version [of the clear and present danger test], the
nature of the harm must be both very serious and virtually certain, requiring an
‘immediate check’ in order ‘to save the country.’ Speech that merely possesses a bad
tendency – the Schenck standard – would not meet this standard.”). Justice Brandeis
also laid down an important marker with his concurring opinion in Whitney v.
California, 274 U.S. 357, 372–80 (1927) (Brandeis, J., concurring). Justice Brandeis
wrote that a speech restriction will be valid if it “is required in order to protect the
State from destruction or from serious injury, political, economic or moral” and that
such necessity exists only if speech “would produce, or is intended to produce, a
clear and imminent danger of some substantive evil.” Id. at 373 (emphasis added);
see also McGoldrick, supra, at 81–82.
Throughout the rest of the first half of the twentieth century, the Court’s
precedents gradually became more protective of speech without radically shifting
away from the earlier precedents. See Dennis v. United States, 341 U.S. 494, 507
(1951) (“Although no case subsequent to Whitney and Gitlow has expressly
overruled the majority opinions in those cases, there is little doubt that subsequent
17
opinions have inclined toward the Holmes-Brandeis rationale.”); see also
McGoldrick, supra, at 82–104.
The shift to the modern standard for incitement occurred when the Court
decided Brandenburg v. Ohio, 395 U.S. 444 (1969). There, the Court overturned the
conviction of the leader of an Ohio chapter of the Ku Klux Klan after his racial
epithet laden speech to a group of hooded and gun-toting Klan members was
recorded and broadcast on TV. Id. at 444–47. The speech discussed the need for
“revengeance” if the government continued to suppress the white race and
announced a march that was scheduled for the Fourth of July. Id. at 446. The Court
held that “the constitutional guarantees of free speech and free press do not permit a
State to forbid or proscribe advocacy of the use of force or of law violation except
where such advocacy is directed to inciting or producing imminent lawless action
and is likely to incite or produce such action.” Id. at 447 (emphasis added).
The Brandenburg “imminent lawless action” test is difficult to satisfy. “[T]he
barrier to liability . . . has generally been the imminence prong, not the intent prong.”
Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1193 (2005). To
date, the Supreme Court has never found that a speech restriction satisfied the
Brandenburg test. In the most well-known case to apply the test, Hess v. Indiana,
414 U.S. 105 (1973), the Court overturned the conviction of an anti-war
demonstrator who was protesting on the campus of Indiana University. While the
18
police were clearing the streets of the protestors, Gregory Hess was overheard saying
“We’ll take the fucking street later” or “We’ll take the fucking street again” and was
subsequently charged with violating Indiana’s disorderly conduct statute. Id. at 105–
07. Applying Brandenburg, the Court reasoned that “Hess’ statement was not
directed to any person or group of persons,” and therefore “it cannot be said that he
was advocating, in the normal sense, any action.” Id. at 108–09. The Court further
reasoned that “since there was no evidence, or rational inference from the import of
the language, that his words were intended to produce, and likely to produce,
imminent disorder, those words could not be punished by the State” based merely
on the notion that “they had a tendency to lead to violence.” Id.
In this case, the district court erred by framing the test to be applied using
Schenck’s infamous “fire in a theatre” analogy. Bailey v. Iles, No. 21-01211, slip op.
at 15–16 (W.D. La. July 20, 2022). Although the district court cited the appropriate
language from Brandenburg one paragraph later, the court’s opinion nevertheless
applied the obsolete Schenck standard. The district court wrote that “Bailey’s post
publishing misinformation during the very early stages of the COVID-19 pandemic
and time of national crisis was remarkably similar to falsely shouting fire in a
crowded theatre.” Id. at 16. Making its reliance on Schenck even more clear, the
court continued, “Viewed in the light of the surrounding circumstances, Bailey’s
Facebook post may very well have been intended to incite lawless action, and in any
19
event, certainly had a substantial likelihood of inciting fear, lawlessness, and
violence.” Id. In other words, because it was conceivable that Bailey’s Facebook
post might make unlawful conduct more likely, the post was unprotected speech and
the state could have punished him for it with impunity. This speech-chilling standard
has not been good law since Brandenburg, and applying it was error.
The district court should have instead asked whether Bailey’s post was
“advocacy . . . directed to inciting or producing imminent lawless action” and
whether it was “likely to incite or produce such action.” Brandenburg, 395 U.S. at
447. When evaluating Bailey’s post in context, it is obvious that a prosecution of his
speech, like many others before it, would have failed to satisfy the demanding
Brandenburg standard.
This is true for several reasons. First, Bailey could not have been advocating
imminent lawless action because his post was not advocating anything. His post did
not prescribe any course of action aside from encouraging others to share the post as
part of the joke. Even if his appeal to share the post were taken seriously, merely
encouraging others to share an online post is not the type of advocacy that
Brandenburg and Hess had in mind.
Second, the identity of Bailey’s alleged audience is unclear. Here, as in Hess,
Bailey’s “statement was not directed to any person or group of persons,” and as a
20
result, “it cannot be said that he was advocating, in the normal sense, any action.”
414 U.S. at 107–08.
Third, under Brandenburg, the government would need to demonstrate that
Bailey’s advocacy was both intended and likely to produce imminent lawless action.
395 U.S. at 447. But the government did not identify any evidence that Bailey had a
bad intent. Instead, the district court simply accepted the musings of a single police
officer that the post “was an attempt to get someone hurt” in the context of the
uncertainty of the spring of 2020. This rank speculation is in keeping with the “bad
tendencies” test of the discredited Schenck era and precisely the type of loose
justification for punishing speech that Brandenburg forbids.
Finally, neither the government nor the district court identified any lawless
action inspired by Bailey’s post. The Rapides Parish Sherriff’s Office didn’t receive
so much as a call to its non-emergency line to complain about the post. If an address
to a group of armed Klansmen referencing the possibility of “revengeance” is not
incitement to imminent lawless action, then neither is making a joke on Facebook
which does not prescribe any action, is not addressed to anyone, and never so much
as generated a single complaint.
Bailey’s Facebook post clearly fails the Brandenburg test. As a result,
summary judgment should be reversed.
21
III. Bailey’s Protected Speech Cannot Serve as a Basis for Probable Cause
Under the principles articulated in the Supreme Court’s decisions in Hustler
Magazine and Brandenburg, Bailey’s obvious joke on Facebook was protected
speech. If the district court’s decision is allowed to stand, its failure to recognize the
clearly established constitutional protections for humor and its revival of Schenck’s
“bad tendencies” test would leave future speech vulnerable to criminalization based
on the speculative musings of government officials.
Because the district court erred in finding that Bailey’s post was not protected
speech, it also erred in finding that Iles was entitled to qualified immunity. Iles’s
defense of qualified immunity fails if his actions were objectively unreasonable in
light of established law. Powers v. Northside Indep. Sch. Dist., 951 F.3d 298, 305–
06 (5th Cir. 2020). The constitutional question, then, is whether “a reasonable
official would understand that what he is doing violates [a constitutional] right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). It is not necessary, however, for
a court to have previously found a particular law to be unconstitutional. Even where
no court has weighed in, “officials can still be on notice that their conduct violates
established law in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741
(2002); see also Michigan v. DeFillipo, 443 U.S. 31, 38 (1979); Taylor v. Riojas,
141 S. Ct. 52 (2020) (per curiam). “The central concept is that of ‘fair warning.’”
22
Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope, 536
U.S. at 740).
The Supreme Court’s opinions in Hustler Magazine and Brandenburg should
have put any reasonable officer on notice that Bailey’s joke was protected speech,
which cannot be the basis of probable cause for an arrest. For the reasons explained
above, nothing about Bailey’s post was unlawful, intended to incite unlawfulness,
or risked inciting unlawfulness. Thus, no reasonable officer could have concluded
that Bailey’s post was unprotected speech. Indeed, no reasonable officer would have
looked to a standard that has been extinct for nearly 60 years to justify arresting
Bailey for an obvious joke. Consequently, there was no justification for his arrest,
and the arresting officer should not be entitled to qualified immunity.
CONCLUSION
The First Amendment protects an individual’s ability to make jokes online.
Interfering with this right by using outmoded precedents to justify criminal sanctions
for innocent speech will undermine the free speech rights of millions of internet
users and leave future speech vulnerable to the speculative suppositions of
government officials. The decision of the district court should be reversed.
23
Respectfully submitted,
/s/ Thomas Berry

Thomas Berry
Darpana Sheth Counsel of Record
FOUNDATION FOR INDIVIDUAL Nicholas DeBenedetto
RIGHTS AND EXPRESSION CATO INSTITUTE
510 Walnut Street, Suite 1250 1000 Mass. Ave., N.W.
Philadelphia, PA 19106 Washington, DC 20001
(215) 717-3473 (202) 789-5202
[email protected] [email protected]
Nora Ahmed
AMERICAN CIVIL LIBERTIES
UNION OF LOUISIANA
1340 Poydras Street, Suite 2160
New Orleans, LA 70112
(504) 522-0628
[email protected]
DATED: November 14, 2022
24
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R. App. P. 29(a)(5)
and Fed. R. App. P. 32(a)(7)(B) because it contains 5,502 words, excluding the
parts exempted by Fed. R. App. P. 32(f).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type-style requirements of Fed. R. App. P. 32(a)(6) because it has been
prepared in a proportionally spaced typeface in Times New Roman, 14-point
font.
/s/ Thomas Berry

November 14, 2022
25
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of
Court, who will enter it into the CM/ECF system, which will send a notification of
such filing to the appropriate counsel.
/s/ Thomas Berry

November 14, 2022
26

Bailey v. Iles

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Case: 22-30509 Document: 00516544200 Page: 1 Date Filed: 11/14/2022

CASE NO. 22-30509

CERTIFICATE OF INTERESTED PERSONS AND

CASE NO. 22-30509

evaluate possible disqualification or recusal.

Person or Entity Connection to Case

Thomas Berry Counsel to amicus Cato Institute

Nicholas DeBenedetto Counsel to amicus Cato Institute

Cato Institute Amicus curiae

Darpana Sheth Counsel to amicus FIRE

Foundation for Individual Amicus curiae

Nora Ahmed Counsel to amicus ACLU-LA

American Civil Liberties Amicus curiae

Amicus Cato Institute is a Kansas nonprofit corporation that has no parent

the stock or ownership interest in amicus.

Amicus American Civil Liberties Union of Louisiana (ACLU-LA) is a

/s/ Thomas Berry

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

United States v. Alvarez, 567 U.S. 709 (2012) ..........................................................7

INTEREST OF AMICI CURIAE1

research foundation dedicated to advancing the principles of individual liberty, free

Studies was established in 1989 to promote the principles of limited constitutional

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan,

nonprofit organization dedicated to defending the individual rights of all Americans

has successfully defended First Amendment rights on campuses nationwide through

beyond colleges and universities. It currently represents various plaintiffs in lawsuits

of its decades of experience defending freedom of expression, FIRE is keenly aware

fair warning of a constitutional violation, especially when the officials responsible

had time to recognize those principles.

The American Civil Liberties Union of Louisiana (ACLU-LA) is a statewide,

nonprofit, nonpartisan public-interest organization with thousands of members

Justice Lab program on behalf of clients seeking constitutional vindication under

to ACLU-LA, its members, and its clients.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

“#weneedyoubradpitt,” referring to Brad Pitt’s role in a zombie movie. Exchanges

obvious joke was an attempt to sow dangerous chaos and confusion.

state law claims for malicious prosecution and false arrest.

The district court, however, erroneously granted the officers qualified

immunity by applying a long-since discredited legal standard to conclude that

First Amendment because of its serious implications in light of the pandemic.

First Amendment and reverse the district court.

When evaluating whether a joke is eligible for First Amendment protection,

would understand the speech in question to be a joke. This straightforward standard

alike. Because a reasonable reader would have understood Bailey’s post to be

speech, it did so by relying on outmoded First Amendment precedents from the

speech and the alleged harm.

more speech protective than its predecessor.

The district court erred in granting qualified immunity to Detective Iles

summary judgment to appellees and remand for further proceedings.

I. The First Amendment Clearly Protects Online Humor

If the First Amendment protects anything, it surely protects ordinary citizens

protection. See Hustler Mag., 485 U.S. at 56.

The exercise of First Amendment freedoms “will not always be reasoned or

“a reason for affording it constitutional protection.” Id. at 55 (quoting FCC v.

viewpoint is entitled to full First Amendment protection. See id. at 56 (“[I]t is a

government] interest in preventing speech expressing ideas that offend . . . . strikes

areas include speech expressed as part of crime, obscene expression, incitement to

fully protected. Hustler Mag., 485 U.S. at 56–57.

acknowledged, “[s]ometimes satire is funny . . . othertimes it may seem cruel and

views, or perhaps on the basis of their dislike of a particular expression.” Hustler