Time to extinguish the claim that you can’t yell ‘fire in a crowded theater’

Although a federal appeals court recently ruled that a Louisiana man could pursue civil rights claims for his arrest for making a COVID joke, 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.” (stock.adobe.com)

Back in March 2020, a dozen or so sheriff’s deputies wearing bulletproof vests descended on 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 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.