A joke about a zombie movie went too far, leading to the arrest of the author and questioning the limits of the right of free speech

During the outbreak of the COVID-19 pandemic, a man published a post on Facebook stating that the Sheriff’s Office of his town had ordered to shoot on sight people infected with the novel virus. He intended the post as a joke which, in his view, could be easily inferred by the fact that the post contained the hashtag #weneedyoubradpitt, making reference to the zombie movie World War Z, starring the actor Brad Pitt.

Following the post’s publication, he was arrested by the Detective of the Sheriff's Office and charged with the offence of “terrorizing”. Subsequently, the district attorney dropped the charges and did not prosecute him. The man then filed suit alleging that the Detective had violated his First and Fourth Amendment rights (i.e., right to free speech and right not to be subject to unreasonable searches and seizures).

The District Court ruled in favor of the Detective, stating that the plaintiff’s Facebook post was not constitutionally protected speech under the First Amendment since it created a “clear and present danger”, thus being equal to publishing misinformation during the very early stages of the pandemic. The District Court further held that his arrest was justified and dismissed the Fourth Amendment claim.

However, by judgment of 25 August 2023, the Circuit Court for the Fifth Circuit overruled the lower court’s decision, highlighting that the post was clearly intended as a joke, lacked believability and was not a serious threat. Therefore, it was protected by the First Amendment. Based on the fact that the post qualified as protected speech, the Court also reversed the finding relating to the Fourth Amendment claim; in this respect, the Court also stated that “the general fear and uncertainty around COVID-19 does not turn [plaintiff’s] otherwise-inane Facebook post into a terroristic threat”.

Reference: Bayley v. Iles and Wood, 5th Circuit Court, judgment of 25 August 2023.

Full text of the decision available at ij.org en