Social media is packed with sarcasm and parody. There is a constant flow of people sharing jokes with friends and family. Sometimes these are inside jokes that only a handful of people might get. Some of them are groan worthy. Waylon Bailey’s Facebook joke led to police arresting him at gunpoint. But thanks to a recent federal court decision, his lawsuit against the arresting sheriff’s department will now move forward.

Waylon posted his joke on Facebook near the beginning of the COVID-19 pandemic, in March 2020. Using capital letters, emoji, and ridiculous hashtags, he claimed that local sheriff’s deputies had been given the order to “shoot the infected.” He ended it with #weneedyoubradpitt, a reference to the star’s zombie movie “World War Z.”

Everyone who interacted with the post on Facebook understood it was a joke. No citizen called the sheriff’s office out of concern for potential violence. But when deputies became aware of the post, they quickly looked for a reason to arrest Waylon.

Without bothering to get an arrest warrant or even calling and asking him to take down the post, deputies threw on body armor and arrested Waylon with guns drawn. It was only after Waylon was taken to jail that he learned he was being charged under a terrorism statute.

Soon after the arrest, the district attorney dropped all charges. But Waylon was justifiably upset that he was arrested for an innocuous joke shared among friends. So he sued the detective responsible for the slapdash “investigation” and the sheriff.

But Waylon’s suit was dismissed by the district court, which granted “qualified immunity” to the detective who spearheaded the arrest. The judge’s opinion rested on World War I-era Supreme Court cases that had not been considered good precedents for decades. For instance, in the Schenck case from 1919, the Supreme Court upheld the prosecution of anti-war protestors who handed out pamphlets opposing the draft.

Waylon refused to give up. He teamed up with the Institute for Justice to appeal, and a unanimous panel of judges at the 5th U.S. Circuit Court of Appeals recently overruled the lower court. The commonsense decision affirms that the First Amendment protects humor and cautions police to think twice before arresting people for what they post online.

Freedom of speech is not an unlimited right, but the exceptions that allow the government to prosecute people for speech are very narrow. The appeals court looked at two of those exceptions and found that neither applied to Waylon’s joke.

First, Waylon’s post was not intended or likely to incite imminent lawless action. The premise of the joke was that deputies had been given authority to shoot “the infected,” i.e., zombies, given the reference to Brad Pitt. The appeals court wrote: “The post did not direct any person or group to take any unlawful action immediately or in the near future, nobody took any such actions because of the post, and no such actions were likely to result because the post was clearly intended to be a joke.”

Second, Waylon’s joke was not a “true threat” because it lacked any believability. The emoji and humorous hashtags made it clear that the intent was humor. The appeals court contrasted this with United States v. Perez, where Facebook posts that claimed a COVID-19 infected person had been paid to lick items in two specific San Antonio grocery stores were true threats and not protected speech. The appeals court pointed out that “Bailey’s absurd post is entirely different from the believable threat in Perez.”

The First Amendment’s protection of speech isn’t limited to political speech and serious subjects. The Constitution protects the everyday use of humor and parody even when the subject is law enforcement. Maybe you chuckled at Waylon’s post or maybe you groaned, but you probably saw it for what it was: a joke among friends.

We can all be grateful that the appeals court determined that police need to think carefully before running out to arrest someone for what they wrote on social media. For Waylon, the win has lifted a weight from his shoulders. He told the Washington Post that the next day, “I woke up with a much more blissful feeling, knowing the right decision was made.”