Judge Dana Douglas, nominated by President Biden to the Fifth Circuit, wrote a unanimous decision reversing a Trump district judge,  ruling  that police can be sued for arresting someone for “terrorism” based on a joke posted on Facebook about COVID-19. The November 2023 decision was in Bailey v Iles.

 

What happened in this case?  

Early in the COVID pandemic, as part of an exchange of Facebook posts with a friend, Waylon Bailey posted a joking message on Facebook satirically suggesting that the sheriff’s office in Rapides Parish, Louisiana, where he lived, had told deputies to “shoot on sight” any “infected” people they encounter. The context made clear that Bailey intended the message as a joke, including a reference to the zombie movie World War Z.

 Nevertheless, the sheriff’s office (RPSO) assigned Detective Randell Iles to investigate. Although no one had contacted the RPSO about the post and he did not seek a warrant, Iles went to Bailey’s house with a number of deputies and arrested him for “terrorizing” in violation of state law. They ordered Bailey to get on his knees and handcuffed him. Bailey told them the post was intended as a joke, apologized, and removed the post.

Despite those efforts by Bailey, Iles took him into custody in the local jail. RPSO “announced Bailey’s arrest on its own  Facebook page,” and news reports stated he had been arrested for terrorism. Bailey’s wife bailed him out of jail. The district attorney later dropped all charges and did not prosecute Bailey.

Bailey filed suit in federal court against Iles for violating his rights under the First and Fourteenth Amendment. The case was assigned to Louisiana district court judge David Joseph, who had been nominated by Donald Trump.

Without trial, Joseph dismissed Bailey’s claims and ruled that Iles was entitled to qualified immunity against the complaint. Bailey appealed to the Fifth Circuit.

 

How did Judge Douglas and the Fifth Circuit Rule and Why is it Important?

Judge Douglas wrote a unanimous decision that reversed the lower court and sent the case back so that Bailey could proceed with his claims. Contrary to the Trump lower court judge, Judge Douglas ruled that Bailey’s post was “constitutionally protected speech” as humor or satire under the First Amendment.

More specifically, Douglas explained that jokes or humor like Bailey’s post cannot constitutionally be prosecuted unless it is “advocacy” intended and likely to “incite imminent lawless action” or a “true threat.” Neither of these narrow exceptions to the First Amendment, Douglas continued, applied here based on the law and the undisputed facts. Douglas concluded that Iles was not entitled to qualified immunity because there was “no actual probable cause for the arrest” and Iles was “objectively unreasonable” in believing otherwise.

Judge Douglas’ ruling is obviously important so that Bailey can have his day in court on his claims that Iles violated his constitutional rights. In addition, the decision provides important precedent concerning police liability for arresting and charging people for serious crimes for expression that constitutes jokes and satire posted on the internet, This is particularly true in the Fifth Circuit, including Lousiana, Texas, and Mississippi. The ruling also serves as an important reminder of the significance of promptly confirming high-quality Biden nominees like Judge Douglas to our federal courts.