Home » News » 5th Circuit finds Facebook post protected speech, not incitement or a threat

By David L. Hudson Jr., published on September 12, 2023

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A man who was arrested for a Facebook post intended as a joke had his First Amendment claim reinstated by a federal appeals court. The appeals court determined that the post clearly did not rise to the level of unlawful incitement to imminent lawless action or a true threat.

On March 20, 2020, Waylon Bailey posted a Facebook message as what he called a joke during the start of the COVID-19 pandemic. The post read in part:

“Just in. Rapides Parish Sheriff’s Office Have Issued the Following Order: If Deputies Come into Contact with the “Infected” Shoot on Sight … Lord have mercy on us all.”

While Bailey viewed his message as a joke and as banter with a friend on Facebook, the Rapides Parish Sheriff’s Office did not. A detective with the office, Randall Iles, thought the post was intended to get law enforcement officers hurt.

Without seeking an arrest warrant, Iles and several other deputies went to Bailey’s house and arrested him for making a terroristic threat. A district attorney dropped the charges and refused to prosecute the case.

After this, Bailey sued for violations of his First and Fourth Amendment rights. He named Iles and Sheriff Mark Wood as individual defendants. The defendants asserted a qualified-immunity defense and moved to dismiss all the charges. A federal district court granted the motion. On the First Amendment claim, the district court found that Bailey had engaged in knowingly false speech that caused a clear and present danger to public order. 

On appeal, Bailey asserted that defendant Iles was not entitled to qualified immunity, because it was clearly established that Bailey’s Facebook post was a form of protected speech, not some sort of threat.  The 5th U.S. Circuit Court of Appeals reversed the lower court and ruled in Bailey v. Iles that Bailey’s speech was a form of protected speech. 

First, the 5th Circuit noted that Bailey’s speech did not come close to unlawful incitement to imminent lawless action. “The post did not direct any person or group to take any unlawful action immediately or in the near future, nobody took any such actions because of the post, and no such actions were likely to result because the post was clearly intended to be a joke,” the appeals court wrote.

The 5th Circuit also determined that Bailey’s post did not constitute a true threat. The court reasoned that “it was not a ‘true threat’ based on context because it lacked believability and was not serious.”

The 5th Circuit concluded that Iles was not entitled to qualified immunity because Bailey’s speech was clearly protected: “Further, Bailey has shown that Iles is not entitled to qualified immunity as to the First Amendment claim. Based on decades of Supreme Court precedent, it was clearly established that Bailey’s Facebook post did not fit within one of the narrow categories of unprotected speech, like incitement or true threats.”

David L. Hudson Jr. teaches First Amendment law and constitutional law classes at Belmont University College of Law. He is the author, co-author, or co-editor of more than 50 books, including The Constitution Explained: A Guide for Every American (Visible Ink Press, 2022) and The First Amendment: Freedom of Speech (Thomson Reuters, 2012).  

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