Today, TechFreedom filed an amicus brief urging the U.S. Court of Appeals for the Fifth Circuit to reverse a district court decision that refused to grant First Amendment protection to a zombie joke posted online.

In March 2020, Waylon Bailey made a joke on Facebook comparing the COVID-19 pandemic to a zombie apocalypse. Police officers stormed Bailey’s home and arrested him for violating a state anti-terrorism law. The district attorney dropped the case, and Bailey sued the police for violating his First and Fourth Amendment rights. The district court granted the officers qualified immunity, holding that the First Amendment did not clearly protect Bailey’s social media post. On appeal, TechFreedom’s amicus brief shows how the district court misapplied the First Amendment, and explains why its mistakes are especially problematic in the context of online speech.

The district court’s First Amendment analysis relies on overturned, World-War-I-era First Amendment decisions,” said Andy Jung, a Legal Fellow at TechFreedom. “The opinion quotes widely discredited dicta from Schenck v. United States asserting that freedom of speech doesn’t apply to ‘falsely shouting fire in a theatre and causing a panic.’ This is one of the most misquoted and misused phrases in Supreme Court history.”

Speech on the Internet enjoys full First Amendment protection,“ continued Jung. “The district court, however, failed to grasp how speech tends to work in the context of the modern Internet. The question was whether Bailey’s speech was intended, and likely, to produce imminent lawless action. Yet Bailey’s post contained several typos, four exclamation points, two hashtags, two emojis, and a reference to Brad Pitt. Given the context, the joke was clearly not intended, or likely, to produce lawless action.”

TechFreedom was pleased to have the Electronic Frontier Foundation join the brief.


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