Back in March 2020, a dozen or so sheriff's deputies wearing bullet-proof vests descended upon Waylon Bailey's home in Rapides Parish, Louisiana, with their guns drawn, ordered him onto his knees with his hands on his head, and arrested him for a felony punishable by up to 15 years in prison. The SWAT-style raid was provoked by a Facebook post in which Bailey had made a zombie-themed joke about COVID-19.
Although a federal appeals court recently ruled that Bailey could pursue civil rights claims based on that incident, a judge initially blocked his lawsuit, saying his joke created a "clear and present danger" similar to the threat posed by "falsely shouting fire in a theatre and causing panic." That decision illustrates the continuing influence of a misbegotten, century-old analogy that is frequently used as an excuse to punish or censor constitutionally protected speech.
