Reasonable people can disagree over how involved private companies like Facebook and Twitter should be in policing speech on their platforms. But while that debate continues over online censorship on private platforms, real-life censorship by public officials is going unchecked in the U.S. Two cases working their way through the courts right now exemplify a frightening trend of police arresting people for making jokes on social media.
Waylon Bailey was far from the first person to make a joke about the COVID-19 pandemic being like a zombie outbreak. As the world locked down and people fell back on social media to connect with friends and relatives, Waylon posted on Facebook that the local Louisiana sheriff’s office would soon be shooting “the infected.” Making it crystal clear his post was a joke, he ended it with the hashtag “#WeNeedYouBradPitt” — a reference to the blockbuster zombie film World War Z.
But just a few hours later, Louisiana sheriff’s deputies descended on Waylon in his garage. Clad in tactical gear, heavily armed police arrested Waylon for “terrorism.” The deputies provided no evidence that Waylon terrorized anyone; the victim they listed on the arrest report was “society.” Waylon was released from jail, and the local prosecutor dropped the charges against him. But the traumatic arrest rattled Waylon and his family, and he stopped posting on Facebook.
The deputies neither apologized nor were held responsible for Waylon’s bogus arrest, so Waylon sued them in federal court. But a district court granted the deputies “qualified immunity” based on discredited, century-old Supreme Court rulings that upheld the arrest of people who opposed the draft during World War I.
Waylon is appealing his case, and its outcome may depend on another shockingly similar case from Ohio that could soon be heard by the Supreme Court.
Anthony Novak made a parody Facebook page making fun of his Cleveland-area police department. The updates were absurd, announcing, for instance, that people would be confined to their homes so that families could “come together” and that applicants could join the police force by passing a 15-question multiple choice exam and hearing test. A handful of people called the police non-emergency line to tattle on the page and, after a police spokesman announced an investigation on the local news, Anthony took down the page.
Nevertheless, the local department put its top detective on the case, who spent weeks investigating before police arrested Anthony under a computer-hacking law, raided his home, and took his electronics.
Unlike in Waylon’s case, prosecutors took Anthony’s case all the way to trial, where a jury found him not guilty. Upset at the blatant disregard for free speech, Anthony sued the city and the officers who arrested him. Like Waylon, his case was thrown out because of qualified immunity.
Waylon and Anthony made their online jokes for fun, but for others, joking is (serious) business. That’s why professional parodists at the Babylon Bee and the Onion have asked the Supreme Court to hear Anthony’s case and make it clear that arresting people for their online speech, funny or not, violates the First Amendment and foundational concepts of free speech.
When fundamental rights such as freedom of speech are at stake, courts should carefully engage with the merits of the claims. But thanks to doctrines like qualified immunity, courts all too often ignore the Constitution entirely. Giving government officials like police officers, IRS agents, and other bureaucrats qualified immunity effectively places them above the law and above the Constitution. Courts should decide whether government busybodies should be permitted to arrest you for your Facebook posts; they should not use qualified immunity to avoid the issue.
* Article from: The Washington Examiner