Legal Docket: The joke police strike back

NICK EICHER, HOST: It’s Monday morning, July 31st, 2023 and you’re listening to The World and Everything in It from listener-supported WORLD Radio. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

Most of the year we bring you cases and controversies before the U.S. Supreme Court. Today and for most of the summer, we’ll bring you disputes percolating in the lower courts.

Institute for Justice is a public-interest law firm that tries to curb abuse of government power. Today, we’ll hear about three cases IJ is currently handling.

EICHER: Case one is out of Louisiana. It arises in March 2020, right when the pandemic and the lockdowns were first bearing down. Waylon Bailey was at home like most everyone else. And he made a joke on Facebook about zombies.

WAYLON BAILEY: I told all my Facebook friends that in the surrounding area that the local sheriff's department was going to shoot the infected on sight, with hashtags referring to World War Z with Brad Pitt, and It originated in China. And in the movie it originated in China. I mean, I thought it was a pretty good reference. (Laughs)

REICHARD: Bailey said he was prompted to do that because a friend’s joke on Facebook had, in his estimation fallen flat.

BAILEY: I don't know, it just wasn't a good joke. So I just kind of, I wanted to one- up him a little bit and I one -up him in the sense of like no one gets really offended while still being funny.

But someone was offended. Really offended.

BAILEY: Apparently the whole Sheriff's Department got offended, so.

Yeah, so what happened next caught him off guard.

BAILEY: It was about two and a half three hours later this, like, the task force, you know, SWAT team for the Sheriff's Department came in and rained down on me. About 10-12 guys with their weapons drawn.

EICHER: Bailey doesn’t have a criminal record or anything like that. A few traffic tickets maybe. But that’s it.

So, how did he process this in real time?

BAILEY: As soon as I see them I was like, Oh, I wonder who these guys are in Wrangler Jeans and bulletproof vests? And I was like, can I help you? I guess I really didn't register right then and there that they were there because I made that Facebook (beep) post. But uh, but yeah, that was, that was it.

REICHARD: I emailed the Rapides Parish, Louisiana’s sheriff’s office for comment. They wrote back in mere seconds, “No comment.” Not surprising really, given ongoing litigation.

But Bailey said he wasn’t shown a warrant or given a reason for his arrest.

BAILEY: While I was in there getting booked and everything I had no idea why I was being arrested or what or what grounds I was being arrested on. I think they were having a hard time trying to figure out what they were going to charge me with, so like they made me wait and answer questions for like an hour before they even took me up there, the FBI booking or whatever though, the handprints and all that stuff that took like two hours. I'm not sure why.

REICHARD: The officers said he’d violated a state anti-terrorism law, although the district attorney later dropped the case.

Still, Bailey felt his rights had been violated. So he brought a civil rights lawsuit in district court, but he lost because the officers were granted qualified immunity. That protects government officials from individual liability unless you can point to a case with identical facts to prove the government officials should have known he was violating the Constitution.

Not likely given these zombie facts.

The lower court also found Bailey didn’t have a free speech right to make the zombie joke in the first place.

EICHER: Now in his appeal, lawyer Ben Field represents him before the U.S. Court of Appeals for the Fifth Circuit. Field lists several causes of action on behalf of Waylon Bailey: First Amendment, Fourth Amendment, and Louisiana state law.

BEN FIELD: And for the first amendment, the basic idea is that Waylon wrote a joke on Facebook. And that's protected by the First Amendment. And it's a bedrock First Amendment principle that the government can't arrest you because it doesn't like the content of your speech. The fourth amendment claim is somewhat related to that. And it's the idea that the government has to have probable cause if they're going to arrest you without a warrant. And here the only evidence, quote, unquote, that the government had was protected speech, and that can't be the basis for an arrest.

Field points out the whole ordeal could have been avoided with a simple phone call. The sheriff would’ve learned it was a joke and done something short of rolling out a SWAT team.

FIELD: But we're hopeful here that there's just the the First Amendment principles are so clear that you cannot arrest somebody for a joke that any reasonable officer should have been on notice that that was the case.

As for Bailey, he wants to put a stop to government overreach.

BAILEY: And if this is able to happen so, so easily, and so quickly, you know, it's just going to keep happening to more and more people and it's just not right.

REICHARD: From zombies, to murals, the Institute for Justice has other possible government overreach cases in the pipeline.

This one up in Conway, New Hampshire. It involves a family-owned bakery called Levitz Country Bakery. It had a blank, rather drab facade above its door that local high school art students offered to paint.

Last summer, the students completed a fanciful mural.

Lawyer Field takes it from here:

FIELD: So part of the mural has pictures of donuts, and there's a sunrise and it's really quite lovely and quite beautiful. And it was a great experience for the high school kids. But the town of Conway said, “Oh, no, that mural isn't a mural. Instead, it's a sign that violates the zoning code.” They said that because the store sells donuts, if a donut is part of the mural, then it becomes a sign and it's too big for the zoning code, and therefore you have to tear it down.

EICHER: So the owners of the donut shop sued the town of Conway.

The town’s lawyer couldn’t speak to us in time for this story, but he did send along the answer to the petition he filed.

Basically, the town argues this is a zoning matter, not a free speech case. The zoning ordinance defines a sign as something that identifies the purpose of a business to communicate information to the public. Here, you see donuts, you see a muffin, cinnamon roll, a big chocolate chip cookie. The city says the “mural” screams out: “this is a bakery.” Therefore, the shop must meet the requirements of the sign ordinance, particularly the part about size. And by that definition, this one is way too big, like four times what the ordinance allows.

REICHARD: It does look delicious, though. I’ll point that out!

The third and final lawsuit we’ll talk about today deals with what the city of New York calls the unauthorized practice of law.

Reverend John Udo-Okon helps people respond to debt collection lawsuits. He works with a nonprofit called UpSolve to assist people in filling out the required forms.

Lawyer Field explains:

FIELD: And so that they get their day in court to explain why they actually did pay the debt or the debt isn't valid, or whatever it may be. And it's just, you know, adults talking to each other about how to fill out this form and respond to these lawsuits. But New York says, No, that's illegal. That is the unauthorized practice of law.

So Reverend Udo-Okon sued the Attorney General of New York, seeking an injunction. That office did not respond to my email asking for comment.

But Udo-Okon argues the First Amendment protects him in giving people guidance on responding to debt collection lawsuits. Every year, hundreds of thousands of people in New York City are hit with these demands and many people just don’t know what to do.

For the most part, these aren’t the sort of traditional debt collection cases such as if you don’t pay off your car lease.

FIELD: Instead, it's some third party buys up a bunch of consumer debt, and brings a whole host of lawsuits. It's possible that the person who's paid it off, it's possible that that isn't actually legitimate. But it's really daunting when you get this notice saying that, you know, there's this lawsuit against you to figure out how to represent yourself. And obviously, for most people, it's just too expensive to hire a lawyer, especially if it's for some small consumer debt. And New York fortunately has a form that, you know, that people can fill out to respond to these kinds of lawsuits. But even that is complicated and has legal jargon on it like laches.

The thing is, most of these lawsuits are successful even if they’re without merit. That’s because defendants who don’t know what to do just don’t show up in court. But when a defendant does show up, collectors often give up instead of trying to prove the debt.

So practical advice is needed. Lawyer Field explains:

FIELD: These are just adults talking to each other, giving advice. You know, if it were illegal to do that, then all of the meddling aunts of America would be in jail. And the district court agreed with that straightforward analysis and said, “Yeah, it's unconstitutional to apply the unauthorized practice of law rules in a way that prevents this kind of just, you know, adults having it giving advice to each other.

Reverend Udo-Okon did win an injunction against the city, but then the city appealed. So that case is ongoing, as well.

In researching all this, I ran across the story of Philadelphia licensing tour guides. To the thinking of some people, the city wanted to make it illegal to talk about the Liberty Bell and the Constitution without a license from the government.

No matter what you think about the irony in that, the legal principle is worth thinking over. Robert McNamara from Institute for Justice put it this way:

MCNAMARA: About why the legal principle mattered. And the real answer was that in a world where the Internet was increasingly part of people’s lives, more and more people are going to earn a living by talking. More and more people are going to earn a living by giving advice to each other and selling their advice. And if the First Amendment doesn’t apply to that kind of speech, we’re going to live in a very different world and a much less free world.

And that’s this week’s Legal Docket!

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