In March of 2020, during the uncertainty of the early days of the COVID-19 pandemic, Waylon Bailey of Rapides Parish, Louisiana sought to make light of the situation by posting an obvious joke on his Facebook page. His post consisted of a faux‐​urgent warning to his Facebook friends that the Rapides County Sherriff’s Office had been instructed to shoot “the infected” on sight. His over‐​the‐​top post was complete with all‐​caps text, emojis, and a hashtag reference to Brad Pitt’s role in the zombie movie World War Z. 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 by a SWAT team and charged with violating Louisiana’s terrorizing statute. Fortunately, 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 the sheriff and arresting officer.

The district court granted the officers qualified immunity, however, and found that Bailey’s obvious joke on Facebook was not protected speech. In reaching its conclusion, the district court relied on outmoded World War I era Supreme Court precedents that permitted the government to jail speakers based on the remote possibility that their speech might lead to unlawful action.