A Ruling Against a Man Arrested for a COVID-19 Joke Highlights the Influence of a Pernicious Analogy

A federal judge compared Waylon Bailey’s Facebook jest to "falsely shouting fire in a theatre."

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.

Bailey's joke alluded to the 2013 zombie movie World War Z, starring Brad Pitt. Bailey jested that the Rapides Parish Sheriff's Office (RPSO) had told deputies to shoot "the infected" on sight, adding: "Lord have mercy on us all. #Covid9teen #weneedyoubradpitt."

RPSO Detective Randell Iles, who was immediately assigned to investigate the post, claimed it violated a state law against "terrorizing" the public. But as the U.S. Court of Appeals for the 5th Circuit noted last Friday, Bailey's conduct clearly did not fit the elements of that crime, which explains why prosecutors dropped the charge after local press reports tarred Bailey as a terrorist.

The 5th Circuit overturned a July 2022 decision in which U.S. District Judge David C. Joseph dismissed Bailey's claims against Iles and Sheriff Mark Wood. Joseph, who thought Iles had probable cause to arrest Bailey, said "publishing misinformation during the very early stages of the COVID-19 pandemic and [a] time of national crisis was remarkably similar in nature to falsely shouting fire in a crowded theatre."

That was a reference to Schenck v. United States, a 1919 case in which the U.S. Supreme Court unanimously upheld the Espionage Act convictions of two socialists who had distributed anti-draft leaflets during World War I. Writing for the Court, Justice Oliver Wendell Holmes Jr. said "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

In the 1969 case Brandenburg v. Ohio, the Court modified the "clear and present danger" test it had applied in Schenck—a point that Joseph somehow overlooked. Under Brandenburg, even advocacy of criminal conduct is constitutionally protected unless it is "directed" at inciting "imminent lawless action" and "likely" to do so—an exception to the First Amendment that plainly did not cover Bailey's joke.

Although Schenck is no longer good law, Holmes' passing comment about shouting fire lives on in judicial decisions and in popular discourse. After last year's racist mass shooting in Buffalo, for example, New York Gov. Kathy Hochul invoked the analogy as a justification for censoring online "hate speech," which she erroneously claimed is not protected by the First Amendment.

Even Justice Samuel Alito has cited "shouting fire in a crowded theater" as a well-established exception to the First Amendment. Yet Holmes' description of that scenario, which had nothing to do with the facts of the case, did not establish any such principle.

Alito presumably had in mind a situation like the sort covered by Louisiana's "terrorizing" statute, which among other things makes it a crime to intentionally cause "evacuation of a building" by falsely reporting "a circumstance dangerous to human life." But as Hochul and like-minded advocates of speech restrictions see it, the analogy extends much further.

"Anyone who says 'you can't shout fire in a crowded theater' is showing that they don't know much about the principles of free speech," Greg Lukianoff, president of the Foundation for Individual Rights and Expression, observed in 2021. "This old canard, a favorite reference of censorship apologists, needs to be retired."

Have you ever heard about the NSA LifeLog program and how it was cancelled the same day that Facebook went live?

Here’s a well written summery from Quora about it:

https://www.quora.com/Why-did-DARPA-cancel-LifeLog-on-the-same-day-Facebook-was-launched

There is no doubt for an intelligent, rationality-based person that Facebook is probably the largest part of the LifeLog system.

Before getting into detail, consider this: The US Defense Department will arrest you, a private citizen, if you find a prime number - a string of digits from 1 to 9 - that is long enough to be of interest, and you dont report it to them. That is now a crime, and they will imprison you for posessing that mere string of digits. In contrast, Facebook is the worlds most powerful-ever intelligence network. No one in America out-spies the NSA, but Facebook does. Its quite hard to see how Facebook, apparently run by a couple of college nerds, would be able to run a competitor to the US intelligence community, on US soil, without them coming in and taking over. In fact, the notion of Mark Zuckerberg physically fighting off a stream of soldiers and special agents to maintain Facebooks autonomy is quite frankly ridiculous. There is no way - literally, I mean NONE - that the Pentagon would allow an independent company to not give them full access and control of a US military asset of such enormity - when they will punish the mere finding of a prime number. Some things are absolutely impossible, without a single, most infintessimal possibility of being true - and Facebook running the worlds largest ever spy network in California without being taken over by the Pentagon, is one of those things. Hopefully anyone who believes that this could ever be possible has now been quietly and unembarrassingly corrected, and can now pretend that they would never be so ignorant as to harbour such a fantastical delusion.

So now lets start with the detail.

After 9/11 (as all recent major problems originate) DARPA, in close collaboration with the US intelligence community (specifically the CIA), began developing a “precrime” approach to combatting terrorism known as Total Information Awareness or TIA. The purpose of TIA was to develop an “all-seeing” military-surveillance apparatus. The official excuse behind TIA was that invasive surveillance of the entire US population was necessary to prevent ‘terrorist attacks’ and disease outbreaks. The leader and designer was John Poindexter, previously Ronald Reagan’s national security advisor. The TIA program met with considerable citizen outrage after it was revealed to the public in early 2003. The American Civil Liberties Union claimed that the surveillance effort would “kill privacy in America” because “every aspect of our lives would be catalogued,” while several mainstream media outlets warned that TIA was “fighting terror by terrifying US citizens.” As a result of the pressure, DARPA changed the program’s name to Terrorist Information Awareness.

After considerable controversy and criticism, in late 2003, TIA was shut down and defunded by Congress, just months after it was launched. It was only later revealed that that TIA was never actually shut down, with its various programs having been covertly divided up among the web of military and intelligence agencies that make up the US national-security state. Some of it was privatized. So DARPA just moved these to classified portfolios of the Pentagon and US Intelligence Community, out of sight.

A close friend of Poindexter, DARPA’s program manager Douglas Gage, created LifeLog, which sought to “build a database tracking a person’s entire existence” that included peoples relationships, communications, thoughts, media consumption habits, purchases, behaviour, and much more, in order to build a digital record of “everything an individual says, sees, or does.” This was the first phase, and the data entry method was self-reporting (essentially getting people to spy on themselves). The second phase was take this unstructured data and organise it into “discreet episodes” and use it for “mapping out relationships, memories, events and experiences”. LifeLog creates a permanent and searchable electronic diary of a person’s entire life. It seems AI was to be applied to this data, developed by Howard Shrobe and others. While DARPA publicly denied clandestine surveillance, DARPA’s own documentation on LifeLog noted that the project “will be able . . . to infer the user’s routines, habits and relationships with other people, organizations, places and objects, and to exploit these patterns to ease its task,” which acknowledged its potential use as a tool of mass surveillance. The application of these two steps is to completely model and predict human behaviour. And for network modelling, enabling an unimaginably powerful and broad set of possibilities for control of populations on every conceivable level.

Among critics, Lee Tien of the Electronic Frontier Foundation told VICE at the time of LifeLog’s cancellation, “It would not surprise me to learn that the government continued to fund research that pushed this area forward without calling it LifeLog.” MIT’s David Karger was also certain that the DARPA project would continue in a repackaged form. He told Wired that “I am sure such research will continue to be funded under some other title . . . I can’t imagine DARPA dropping out of a such a key research area.”

LifeLog was officially closed on February 4th, 2004. DARPA never provided an explanation for its quiet move to shutter LifeLog, with a spokesperson stating only that it was related to “a change in priorities” for the agency.

On February 4th, 2004 - the exact same day - Facebook was officially launched.

I hope its obvious that this, if an accident, would be an extraordinary coincidence.

Facebook performs the same tasks as LifeLog in gathering everything about peoples social connections, activities and behaviour. The first point at which I became deeply skeptical of Facebook was, in a signing-up experiment, when it demanded by personal information. Having been on platforms like Twitter, Myspace and others before (Quora is another), I knew that online anonymity is a part of the deal, with no expectation to use real names, passport photos, institutions attended, birthplace, real date of birth, or anything else that Facebook was now coercing me to give them. Passport information is something that only governments demand (employers too but this wasnt a job application). The notion that Facebook might be government-run, asking as it was for my passport information like a police officer, was already at that point a possibility.

At an oldly candid moment in 2015, Gage, DARPAs program manager, himself told VICE that “Facebook is the real face of pseudo-LifeLog at this point.”

It is also on record that figures in the Facebook-Instagram-WhatsApp (etc) group, now renamed ‘Meta’, are figures in or related to the FBI, NSA, CIA, and DARPA itself.

Examples of US Intelligence Community links:

Max Kelly - FBI and NSA, also US Digital Service in the Executive Office of the US President. His movements in NSA after - official - departure from Facebook, were kept secret for three years. Chief Security Officer of Facebook.
Sean Parker - CIA. Recruited by them at 16. First President of Facebook. Considered by many to be the person who brought to Facebook Peter Thiel. Thiel was then in coordination with the CIA (Parker’s employer), and was actively trying to resurrect controversial DARPA programs that had been officially dismantled the previous year. Thiel had been developing the core panopticon software that was the aim of TIA, with his shady company Palantir. Richard Perle, the Reagan-Bush neoconservative and architect of the Invasion of Iraq, called TIA’s Poindexter to introduce him to Thiel and associate Alex Karp, now Palantir’s CEO. Thus another link to George Bushes 9/11-led government, as well as the link from TIA to CIA, and from CIA to Facebook. During their first meeting, Thiel and Karp sought “to pick the brain of the man now widely viewed as the godfather of modern surveillance.”
Regina Dugan - DARPA. The group where all of this started. Dugan worked for DARPA from 1996, and became non other than their Director. In other words - Dugan led DARPA. There, she also led ‘strategic initiatives in the field of social media’. After that she worked at Google, and then Facebook, where she headed Facebooks mysterious ‘Building 8’, which is considered some sort of skunk-works secret projects department.
Marne Levine - daughter-in-law of 9/11-involved John Deutch, former Director of the CIA. First COO of Instagram. Previously worked at US Treasury Department.
Joel Kaplan - in the White House Chiefs of Staff for George Bush, to whom he was a special assistant as policy advisor. At Facebook, he succeeded Levine as vice president of global public policy.
Others of such a sensitive nature likely exist in influential roles at Facebook, now ‘Meta’.

My own experience: Being coerced by society to again sign up for a Facebook account (albeit only for emailing someone who gave no other contact information) I decided to make an ‘anonymous’ one - without real name, date of birth, passport photo, or other personal information that Facebook uniquely demands. It wasnt possible. It was not possible, and the account was blocked. Two highlights stick out to me:

1. When it locked me out, it demanded that I provide a photo, and either a copy of my passport or my drivers license. Have a think about that for a minute. A presumably civilian ‘socialising’ site is demanding your actual passport to make an account. On no other website in my life has this demand been levelled at me. This is clearly not a civillian operation.

2. I searched for an informal photo of some random person of my gender and roughly my age, to get the account unlocked. Once I uploaded this picture, I think a notice came saying something like ‘our staff will check the validity of this picture as a representation of you’. I was now beyond all reasonable doubt.

Lets agree on something: NO BUSINESS will spend resources on something like the accuracy of a free account-users photograph. Certainly not a genuine ‘social network’. This does not increase their profit (there is no money in it) and it doesnt improve the user experience by increasing customer loyalty. However, it DOES cost money - you have to pay people wages to check all the tens or hundreds of thousands of profiles being made. It does cost time and resources. So if this was a corporate entity, they are wasting time and money on something that has no benefit to them. In fact, this demand actually risks LOSING customers through its overstepping of privacy rights. The only non-work entity that demands a passport photo is the government. The only entity of any kind that would actually RUN CHECKS on a submitted photo is the government. No business would waste resources to check its validity. Therefor, Facebook has to be a government agency.

Sure enough, the photo was rejected. How did they know?! Well, they made it their business to find out. Not their business to do marketing, or improve the website, or make me feel welcome - but to check that my photo could be used to identify me. That they could put passport records to any future social and network activity.

A large part of the gravity of the LifeLog problem is that is does what no major entity did before it. Generally, governments demanded your formal information. But your social life was largely unknown to them. And also, websites where you divulge your thoughts, your interests, beliefs, and social network, did not demand your formal birth information. There was a degree of separation between the two worlds. What LifeLog has done is gather your psychosocial/behavioural information, and then pinned that to your government information. So they know everything about you - and can use that information however they want, whenever they want, whyever they want.

This just describes the outline of what LifeLog is. The actual possibilities with this system are, and I dont use this word lightly, unimaginable. I dont think theres a person on this planet who can picture in their mind the scope for abuse that Meta has for their mass and nature of information. 2-3 Billion humans, some of whom have been giving the Pentagon their personal, interactional, psychological and lifestyle data, daily, for two decades. Its the most powerful dataset that has ever been possessed - and in relation to the ‘next most’, by a multiple that itself is hard to conceptualise.

What we can be almost sure of, is that they know what we are going to do or think, years before we do it. You just cant deny the predictive might of a trillion human datapoints. Most unforgivable, is that it has all been given *voluntarily*, it has been proactively *offered* to the Pentagon, by Facebook and Instagram users. By people *spying on themselves* - without even asking for a DoD salary. Together, the people on the Meta data-gathering platform have done something that has never been achieved in the wildest dreams of even the most genocidal, oppressive fascist: they have given the government the information to predict, and control, every minute detail of what it is to be human, on any population level they wish, in any conceivable situation, for as long as this data can be preserved. The psychological, behavioural, relational data can now be fed into a quantum computer, to calculate any (and probably every) eventuality. What a government can do with that informational power is beyond any conceivable limit.

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