Case: 22-30509     Document: 00516872392         Page: 1    Date Filed: 08/25/2023




           United States Court of Appeals
                for the Fifth Circuit
                                                                      United States Court of Appeals
                                                                               Fifth Circuit


                                ____________                                 FILED
                                                                       August 25, 2023
                                 No. 22-30509                           Lyle W. Cayce
                                ____________                                 Clerk

   Waylon Bailey,

                                                           Plaintiff—Appellant,

                                      versus

   Randell Iles, in his individual capacity; Mark Wood, in his official
   capacity as Sheriff,

                                           Defendants—Appellees.
                  ______________________________

                  Appeal from the United States District Court
                     for the Western District of Louisiana
                            USDC No. 1:20-CV-1211
                  ______________________________

   Before Higginbotham, Graves, and Douglas, Circuit Judges.
   Dana M. Douglas, Circuit Judge:
         Waylon Bailey filed suit under 

 alleging violations of
   his First and Fourth Amendment rights when he was arrested as a terrorist
   for a post on Facebook. The district court granted Detective Randall Iles and
   Sheriff Mark Wood’s motion for summary judgment on qualified immunity
   grounds and dismissed Bailey’s claims with prejudice. We hold that Bailey’s
   post was constitutionally protected speech, and that the grant of summary
   judgment was improper. Accordingly, we REVERSE and REMAND for
   proceedings consistent with this opinion.
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                                    No. 22-30509


                                  I. Background
          Bailey lives in Rapides Parish in central Louisiana. On March 20,
   2020—during the first month of the COVID-19 pandemic—he posted this
   on Facebook:




   Bailey intended the post as a joke and did not intend to scare anyone. The
   “hashtag” “#weneedyoubradpitt” referenced the zombie movie World War
   Z, starring Brad Pitt. Bailey included the hashtag to “bring light to the fact
   that it was a joke.” He was bored during the COVID-19 lockdown and used
   Facebook to keep in touch with friends and “make light of the situation.”
          Bailey’s post was in response to another friend—Matthew Mertens—
   posting a joke about COVID, and Mertens understood Bailey’s post to be a
   joke. The two continued to post comments underneath Bailey’s post.
   Merterns posted “lol and he [referring to Bailey] talking about my post gonna
   get flagged � he wins.” Bailey posted “this is your fault” and “YOU
   MADE ME DO THIS.” Another person, who Mertens later identified as
   Bailey’s wife, also jokingly commented “I’m reporting you.”
          Shortly after Bailey posted, Detective Randell Iles was assigned by the
   Rapides Parish Sheriff’s Office (RPSO) to investigate. Iles’ supervisors were




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   concerned that the post was a legitimate threat; Iles testified at his deposition
   that he thought that the post was “meant to get police officers hurt.” Iles
   looked at the post and the comments and concluded that Bailey had
   committed “terrorizing” in violation of Louisiana Revised Statute § 14:40.1.
   Iles had no information regarding anyone contacting RPSO to complain about
   the post or to express fear, or if any disruption had occurred because of the
   post.
           Without seeking an arrest warrant, Iles and numerous RPSO deputies
   went to Bailey’s house and arrested him. According to Bailey, he was
   working in his garage when as many as a dozen deputies with bullet proof
   vests and weapons drawn approached him and ordered him to put his hands
   on his head, after which Iles told him to get on his knees and handcuffed him.
   While Bailey was handcuffed, one of the deputies (not Iles) told him that the
   “next thing [you] put on Facebook should be not to fuck with the police” and
   the deputies laughed.
           Iles advised Bailey of his rights, took a brief statement, and told him
   he was being charged with terrorizing. Bailey told Iles that the Facebook post
   was a joke and apologized. In a supplemental investigative report completed
   after the arrest, Iles recounted that Bailey told him he had “no ill will towards
   the Sheriff’s Office; he only meant it as a joke.” Bailey deleted his Facebook
   post after Iles told him that he could either delete it himself or the RPSO
   would contact Facebook to remove it.
           Iles later filled out an affidavit of probable cause for arrest without a
   warrant, noting that Bailey had been arrested for “Terrorizing” in violation
   of statute number “14.40.1.” Under the heading “probable cause and facts
   of arrest,” he wrote that “the suspect put up a Facebook post that Rapides
   Parish Sheriff’s Office has order to ‘Shoot on Sight’ due to the Corona Virus
   outbreak. Arrested without incident.” Iles testified at his deposition that he




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                                    No. 22-30509


   determined that the Facebook post was criminal based solely on the words of
   the post itself, and not based on anything Bailey told him.
          RPSO announced Bailey’s arrest on its own Facebook page, and he
   was identified in news reports as having been arrested for terrorism. Bailey’s
   wife paid a bond to bail him out of jail. The district attorney subsequently
   dropped the charges and did not prosecute Bailey.
          Bailey filed suit under 

 alleging that Iles violated his
   First and Fourth Amendment rights. He also brought state law claims of
   malicious prosecution and false arrest against Iles and Sheriff Mark Wood in
   his official capacity as head of the RPSO under the doctrine of respondeat
   superior (collectively, “Defendants”). After discovery, Bailey moved for
   partial summary judgment on his Fourth Amendment, malicious
   prosecution, and false arrest claims, and Defendants moved for summary
   judgment on all of Bailey’s claims, asserting, inter alia, qualified immunity as
   to his federal claims. The district court granted Defendants’ motion and
   dismissed Bailey’s claims with prejudice. Bailey appealed.
                 II. Standard of Review and Qualified Immunity
          “This court reviews de novo a district court’s grant of summary
   judgment, applying the same standard as the district court.” Austin v. Kroger
   Tex., L.P., 

 (5th Cir. 2017) (citation omitted). Normally,
   summary judgment is appropriate “if the movant shows that there is no
   genuine dispute as to any material fact and the movant is entitled to judgment
   as a matter of law.” Fed. R. Civ. P. 56(a). However, “[a] qualified
   immunity defense alters the usual summary judgment burden of proof”
   because the plaintiff, to overcome qualified immunity, “must rebut the
   defense by establishing a genuine [dispute of material fact] as to whether the
   official’s allegedly wrongful conduct violated clearly established law.” Bey v.
   Prator, 

 (5th Cir. 2022) (quoting Brown v. Callahan, 

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                                    No. 22-30509


   249, 253 (5th Cir. 2010)) (alteration in original). “A genuine [dispute] of
   material fact exists when the evidence is such that a reasonable jury could
   return a verdict for the non-moving party.” Austin, 

 (citation
   omitted).   “All evidence is viewed in the light most favorable to the
   nonmoving party and all reasonable inferences are drawn in that party’s
   favor.” 

 at 328–29 (citation omitted).
          “The qualified immunity inquiry includes two parts”: (1) “whether
   the officer’s alleged conduct has violated a federal right”; and (2) “whether
   the right in question was ‘clearly established’ at the time of the alleged
   violation, such that the officer was on notice of the unlawfulness of his or her
   conduct.” Cole v. Carson, 

 (5th Cir. 2019). An officer is
   entitled to qualified immunity “if there is no violation, or if the conduct did
   not violate law clearly established at the time.” 

          For a right to be “clearly established,” “[t]he contours of the right
   must be sufficiently clear that a reasonable official would understand that
   what he is doing violates that right.” Anderson v. Creighton, 

 (1987). “The defendant’s acts are held to be objectively reasonable
   unless all reasonable officials in the defendant’s circumstances would have
   then known that the defendant’s conduct violated the United States
   Constitution or the federal statute as alleged by the plaintiff.” Thompson v.
   Upshur Cnty., 

, 457 (5th Cir. 2001) (emphasis in original). “The
   central concept is that of ‘fair warning’: The law can be clearly established
   ‘despite notable factual distinctions between the precedents relied on and the
   cases then before the Court, so long as the prior decisions gave reasonable
   warning that the conduct then at issue violated constitutional rights.’”
   Kinney v. Weaver, 

 (5th Cir. 2004) (en banc) (quoting Hope
   v. Pelzer, 

 (2002)).




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                                     No. 22-30509


                                   III. Discussion
          We first hold that Bailey’s Facebook post is constitutionally protected
   speech. We then hold that the district court erred in granting qualified
   immunity to Detective Iles on Bailey’s First and Fourth Amendment claims
   and erred in granting summary judgment to Defendants on Bailey’s state law
   false arrest claim.
                 A. Bailey’s Facebook post was protected speech
          Although neither party briefed the issue, the district court concluded
   sua sponte that Bailey’s Facebook post was not constitutionally protected
   speech under the First Amendment because it created a “clear and present
   danger,” equating “Bailey’s post publishing misinformation during the very
   early stages of the COVID-19 pandemic and time of national crisis” as
   “remarkably similar in nature to falsely shouting fire in a crowded theatre”
   and citing to Schenck v. United States, 

 (1919). Relatedly, the
   district court held that “Bailey’s Facebook post may very well have been
   intended to incite lawless action, and in any event, certainly had a substantial
   likelihood of inciting fear, lawlessness, and violence,” citing Abrams v. United
   States, 

 (1919). This was error. As explained below,
   Bailey’s Facebook post was constitutionally protected by the First
   Amendment.
          “[A]s a general matter, the First Amendment means that government
   has no power to restrict expression because of its message, its ideas, its
   subject matter, or its content.” United States v. Alvarez, 

   (2012) (quoting Ashcroft v. American Civil Liberties Union, 

   (2002) (internal quotation marks omitted)).         The First Amendment’s
   protections apply to jokes, parodies, satire, and the like, whether clever or in
   poor taste. See, e.g. Hustler Mag., Inc. v. Falwell, 

 (1988). That
   said, the First Amendment does not protect all speech, nor has it ever.




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   “There are certain well-defined and narrowly limited classes of speech, the
   prevention and punishment of which have never been thought to raise any
   Constitutional problem.” Chaplinsky v. State of New Hampshire, 

, 571–72 (1942).     “Content-based restrictions on speech have been
   permitted, as a general matter, only when confined to the few historic and
   traditional categories of expression long familiar to the bar.” Alvarez, 

 (cleaned up). Two categories are relevant here: (1) “advocacy
   intended, and likely, to incite imminent lawless action”; and (2) “true
   threats.” 

 (citing Brandenburg v. Ohio, 

 (1969); Watts v.
   United States, 

 (1969))
                                   1. Incitement
          At the outset, we note that in concluding that Bailey’s post was
   unprotected speech, the district court applied the wrong legal standard.
   While Schenck and Abrams have never been formally overruled by the
   Supreme Court, the “clear and present danger” test applied in those cases
   was subsequently limited by the “incitement” test announced in
   Brandenburg.    See Shackelford v. Shirley, 

 (5th Cir. 1991)
   (recognizing the Brandenburg and subsequent cases “refined” the “clear and
   present danger” test). As the Fourth Circuit has explained, the “clear and
   present danger” test from Schenck and Abrams, “[d]evoid of any such
   limiting criteria as directedness, likelihood, or imminence . . . applied to a
   wide range of advocacy that now finds refuge under Brandenburg,” such that
   “Brandenburg has thus been widely understood . . . as having significantly (if
   tacitly) narrowed the category of incitement.” United States v. Miselis, 

, 532–33 (4th Cir. 2020), cert. denied, 

.
          In Brandenburg, the Court held that “advocacy [that] is directed to
   inciting or producing imminent lawless action and is likely to incite or
   produce such action” is not protected by the First Amendment. 

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   447. Brandenburg itself involved the broadcasting of a film of a Ku Klux Klan
   rally which included a speech full of racist language in which a Klan leader
   said that “four hundred thousand” KKK members would be “marching on
   Congress” and that “if our President, our Congress, our Supreme Court,
   continues to suppress the white, Caucasian race, it’s possible that there
   might have to be some revengeance taken.” 

 at 445–46. The Court
   reversed the speaker’s conviction under Ohio’s “criminal syndicalism” law
   because it did not distinguish “mere advocacy” from “incitement to
   imminent lawless action.” 

, 448–49. Bailey argues that his
   Facebook post did not meet Brandenburg’s requirements. We agree. A
   comparison with Supreme Court precedent makes clear that Bailey’s post
   was not “advocacy . . . directed to inciting or producing imminent lawless
   action” nor “likely to incite such action.”
          For example, in Hess v. Indiana, the Court reversed the disorderly
   conduct conviction of a Vietnam War protestor who said “we’ll take the
   fucking street later” after sheriff’s deputies moved the protestors from the
   street to the sidewalk, holding that his speech was protected under
   Brandenburg because it was not directed at any particular person or group and
   was not likely to cause imminent unlawful action. 

, 106–08
   (1973). Consistent with Brandenburg’s imminency requirement, the Court
   explained that speech that “amounted to nothing more than advocacy of
   illegal action at some indefinite future time” was not unprotected incitement.
   

. The Court also seemed to doubt that the speech at issue was even
   “advocacy” as contemplated by Brandenburg: “Since the uncontroverted
   evidence showed that Hess’ statement was not directed to any person or
   group of persons, it cannot be said that he was advocating, in the normal
   sense, any action.” 

 at 108–09. And the Court explained that even
   language that had a “tendency to lead to violence” was protected by the First
   Amendment because such language did not meet the stringent bar for words




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                                     No. 22-30509


   “intended to produce, and likely to produce, imminent disorder.” 

;
   see also Ashcroft v. Free Speech Coal., 

 (2002) (“The mere
   tendency of speech to encourage unlawful acts is not a sufficient reason for
   banning it.”).
          Applying the Supreme Court’s incitement precedents, our court has
   emphasized that “encouragement of conduct that might harm the public
   such as the violation of law or the use of force” is protected by the First
   Amendment unless it is “directed to inciting or producing imminent lawless
   action” and is “likely to incite or produce such action.” Herceg v. Hustler
   Mag., Inc., 

, 1021–22 (5th Cir. 1987). “The crucial element to
   lowering the [F]irst [A]mendment shield is the imminence of the threatened
   evil.” 

.
          The Brandenburg requirements are not met here. At most, Bailey
   “advocated” that people share his post by writing “SHARE SHARE
   SHARE.” But his post did not advocate “lawless” and “imminent” action,
   nor was it “likely” to produce such action. 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. Nor did
   Bailey have the requisite intent to incite; at worst, his post was a joke in poor
   taste, but it cannot be read as intentionally directed to incitement.
   “Incitement cases usually concern a state effort to punish the arousal of a
   crowd to commit a criminal action. The root of incitement theory appears to
   have been grounded in concern over crowd behavior.” Herceg, 

. “As is made clear in the Supreme Court’s decision in Hess, the
   ‘tendency to lead to violence’ is not enough. Mere negligence, therefore,
   cannot form the basis of liability under the incitement doctrine any more than
   it can under libel doctrine.” 

 (citations omitted). In short, where
   the speech in Brandenburg, Hess, and numerous other Supreme Court



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                                    No. 22-30509


   decisions does not rise to the level of incitement, in no way can Bailey’s
   Facebook post constitute incitement.
                                  2. True threats
          Despite Bailey’s arrest for “terrorizing,” his Facebook post was also
   not a “true threat” unprotected by the First Amendment. “‘True threats’
   encompass those statements where the speaker means to communicate a
   serious expression of an intent to commit an act of unlawful violence to a
   particular individual or group of individuals.” Virginia v. Black, 

 (2003). In deciding whether speech is an unprotected “true threat,”
   context is critical. See Watts, 

 (considering the context,
   the expressly conditional nature of the statement, and the reaction of the
   listeners when evaluating whether a statement is a true threat).
          On its face, Bailey’s post is not a threat. But to the extent it could
   possibly be considered a “threat” directed to either the public—that RPSO
   deputies would shoot them if they were “infected”—or to RPSO deputies—
   that the “infected” would shoot back—it was not a “true threat” based on
   context because it lacked believability and was not serious, as evidenced
   clearly by calls for rescue by Brad Pitt. For the same reason, Bailey did not
   have the requisite intent to make a “true threat.”
          Comparison with a recent case also involving a social media post about
   COVID-19 supports our conclusion. In United States v. Perez, we held that
   Facebook posts made in April 2020 in which the speaker falsely claimed that
   he had paid a person infected with COVID-19 to lick everything in two
   specific grocery stores in San Antonio was a true threat. 

 (5th Cir. 2022). We explained that the “posts evinced an intent to spread
   COVID-19” and “described actions that would have placed employees and
   potential shoppers at two grocery stores at risk.” 

. Further, a jury
   found that the posts were reasonably believable, and “would have a




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                                     No. 22-30509


   reasonable tendency to create apprehension that [their] originator will act
   according to [their] tenor.” 

 (quoting United States v. Morales, 

 (5th Cir. 2001)) (alterations in original). Bailey’s absurd post is
   entirely different from the believable threat in Perez, which, unlike Bailey’s
   post, threatened specific harm at specific locations and triggered complaints
   from the public to law enforcement.
                          B. Fourth Amendment claim
          In deciding whether Iles is entitled to qualified immunity on Bailey’s
   Fourth Amendment claim, we consider first whether Iles violated Bailey’s
   constitutional rights when he arrested him for terrorizing. Cole, 

. Then, we consider whether the right was “clearly established” at the
   time of the arrest and whether Iles’ actions were objectively unreasonable.
   Id.; Thompson, 245 F.3d at 457.
          “It is well established that under the Fourth Amendment a
   warrantless arrest must be based on probable cause.” United States v. Castro,
   

 (5th Cir. 1999) (en banc). “Probable cause exists when the
   facts and circumstances within the arresting officer’s personal knowledge, or
   of which he has reasonably trustworthy information, are sufficient to
   occasion a person of reasonable prudence to believe an offense has been
   committed.” Bigford v. Taylor, 

 (5th Cir. 1988) (quotation
   marks and citation omitted). “As a corollary, moreover, of the rule that the
   police may rely on the totality of facts available to them in establishing
   probable cause, they also may not disregard facts tending to dissipate
   probable cause.”      

 (internal citation omitted).       “[T]he ultimate
   determination of whether there is probable cause for the arrest is a question
   of law we review de novo.” Castro, 

.
          The district court determined that there was probable cause to arrest
   Bailey. We disagree. Iles arrested Bailey for “terrorizing,” in violation of




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                                     No. 22-30509


   La. R.S. § 14:40.1(A)(1).՗ The relevant portion of the statute reads as
   follows:
          Terrorizing is the intentional communication of information
          that the commission of a crime of violence is imminent or in
          progress or that a circumstance dangerous to human life exists
          or is about to exist, with the intent of causing members of the
          general public to be in sustained fear for their safety; or causing
          evacuation of a building, a public structure, or a facility of
          transportation; or causing other serious disruption to the
          general public.
   La. R.S. § 14:40.1(A)(1).
          According to Louisiana courts, the crime of terrorizing requires
   (1) “false information intentionally communicated” and (2) “an immediacy
   element concerning the false information or threat that causes sustained fear
   or serious public disruption.” State ex rel. J.S., 

 (La. Ct.
   App. 2001); see also State ex rel. RT, 

 (La. 2001)
   (“Moreover, causation of ‘sustained fear’ is clearly an essential element of
   this part of the statute.”). The statute also requires (3) “specific intent . . .
   i.e., the intent to cause members of the general public to be in sustained fear
   for their safety, or to cause evacuation of a public building, a public structure,
   or a facility of transportation, or to cause other serious disruption to the
   general public.” State v. Lewis, 

 (La. Ct. App. 2001).
          The relevant facts and circumstances known to Iles at the time of the
   arrest were: (1) his supervisors asked him to investigate the post; (2) the
   content of the post itself; (3) Bailey was the author; (4) the comments below
   the post; (5) Bailey’s statement to Iles that he meant the post as a joke and
   had no ill will toward RPSO; (6) nobody reported the post to law
   enforcement; and (7) the general social conditions during the early onset of
   the COVID-19 pandemic.




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                                     No. 22-30509


          These facts and circumstances are not sufficient for a reasonable
   person to believe that Bailey had violated the Louisiana terrorizing statute.
   The statute’s requirement that the communication have “an immediacy
   element concerning the false information” is lacking. See J.S., 

. Moreover, “causation of ‘sustained fear’ is clearly an essential element
   of this part of the statute.” RT, 

. Here, however, there
   were no facts that would lead a reasonable person to believe that Bailey’s post
   caused sustained fear. No members of the public expressed any type of
   concern. Even if the post were taken seriously, it is too general and
   contingent to be a specific threat that harm is “imminent or in progress.”
   Nor would a reasonable person believe, based on these facts, that Bailey acted
   with the requisite “specific intent” to cause sustained fear or serious public
   disruption. Lewis, 

.
          In concluding otherwise, the district court gave undo consideration to
   (1) Iles’ subjective beliefs and (2) social conditions at the onset of the
   COVID-19 pandemic. First, because probable cause is an objective standard,
   Iles’ subjective belief that the post “meant to get police officers hurt” cannot
   supply probable cause; furthermore, Iles’ explanation that his belief was
   based on there being “a lot of protests at the time in reference to law
   enforcement” is not plausible because Bailey was arrested in March 2020,
   while widespread protests concerning law enforcement did not begin until
   after George Floyd’s murder in May 2020.
          Second, the district court stated that the timing of the post during the
   first month of the COVID-19 pandemic—a time of dramatic change, fear,
   uncertainty, and misinformation—was “central” and “critical” to its
   probable cause analysis. While the social context of COVID-19 is certainly a
   relevant consideration, see, e.g. Perez, 43 F.4th at 442–43, the general fear and
   uncertainty around COVID-19 does not turn Bailey’s otherwise-inane
   Facebook post into a terroristic threat under Louisiana law. See RT, 

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   2d at 1241–42 (holding that a student who told another student that it would
   be “easy to have a shooting” and described how he would carry out a school
   shooting did not violate the terrorizing statute because he had not threatened
   imminent harm and had not caused sustained fear even though the
   conversation took place “just a few days” after the Columbine tragedy
   amidst a “climate of fear”); J.S., 

 (holding that a
   student who wrote “Everyone will die May 28, 1999. Be Ready.” on a school
   bathroom wall one month after Columbine did not violate the terrorizing
   statute because there was no evidence that the graffiti caused sustained fear
   or serious disruption, “even in the atmosphere created by the Colorado
   tragedy”).
          Iles is “entitled to qualified immunity unless there was no actual
   probable cause for the arrest” and he was “objectively unreasonable in
   believing there was probable cause for the arrest.” Davidson v. City of
   Stafford, 

 (5th Cir. 2017), as revised (Mar. 31, 2017). Having
   determined that there was no actual probable cause for the arrest, we hold
   that Iles is not entitled to qualified immunity because he was “objectively
   unreasonable” in believing otherwise. In other words, Iles is not entitled to
   qualified immunity because no reasonable officer could have found probable
   cause to arrest Bailey for violating the Louisiana terrorizing statute in light of
   the facts, the text of the statute, and the state case law interpreting it.
          Iles appears to argue that the law was not clearly established, and that
   he is therefore entitled to qualified immunity, because there is no Fifth
   Circuit precedent addressing warrantless arrests pursuant to the Louisiana
   terrorizing statute. But Bailey does not have to identify such a case to defeat
   qualified immunity. First, it is beyond debate that “[a] warrantless arrest
   without probable cause violates clearly established law defining an
   individual’s rights under the Fourth Amendment.” Davidson, 

. Second, whether it was “objectively reasonable” for Iles to believe there



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                                    No. 22-30509


   was probable cause is “assessed in light of legal rules clearly established at
   the time of the incident,” which includes the statute’s text and state case law
   interpreting it. Alexander v. City of Round Rock, 

 (5th
   Cir. 2017). As explained above, at the time of the incident the text of the
   terrorizing statute and state case law interpreting it made it clear that there
   was no probable cause here.        Tellingly, while Bailey cites to multiple
   Louisiana cases supporting his interpretation of the statute, Iles cites to no
   Louisiana case law interpreting the statute otherwise.
          Instead, Iles relies on a recent unpublished decision, Stokes v.
   Matranga, No. 21-30129, 

 (5th Cir. Apr. 19, 2022). In
   Stokes, this court granted qualified immunity to an officer who arrested a
   student for violating Louisiana’s terrorizing statute when he posed for a
   photograph beside a drawing labeled “Future School Shooter” that was
   published on social media. See generally 

 Though Iles argues that this case
   is instructive because likewise in Stokes, the officer was aware that the social
   media post was done in jest, we find it distinguishable in at least one
   important way. In identifying the officer’s knowledge at the time of the
   arrest, we stressed that he was aware that parents had contacted the school
   to express concerns and ask about taking their kids out of school. 

.
   No such thing happened in this case. This, combined with Iles’ knowledge
   that the post was a joke, severely undercuts probable cause for an arrest. As
   noted by the dissent in Stokes, “[o]fficers may not disregard facts tending to
   dissipate probable cause,” 

 at *7 (quoting Bigford, 824 F.2d at 1218)
   (internal quotation omitted), and “[n]o decision by any court contradicts
   [this principle].” Id. (emphasis added).
          Bailey also contends that Iles is not entitled to qualified immunity
   because the Facebook post was constitutionally protected speech, and it is
   clearly established that protected speech cannot provide probable cause for
   an arrest. For support, he cites numerous sister circuits. See, e.g., Swiecicki



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                                    No. 22-30509


   v. Delgado, 

 (6th Cir. 2006) (“An officer may not base his
   probable-cause determination on speech             protected by the       First
   Amendment.”); Mink v. Knox, 

 (10th Cir. 2010) (“It
   goes without saying that a government official may not base her probable
   cause determination on an ‘unjustifiable standard,’ such as speech protected
   by the First Amendment.”) (quoting Wayte v. United States, 

 (1985)); Id. at 1011 (“[S]peech, such as parody and rhetorical hyperbole,
   which cannot reasonably be taken as stating actual fact, enjoys the full
   protection of the First Amendment and therefore cannot constitute the crime
   of criminal libel for purposes of a probable cause determination.”).
          Having already determined that Iles is not entitled to qualified
   immunity, we need not reach this alternative argument. In any event, we
   observe that, at least in this case, Bailey’s two arguments converge or overlap
   because the Louisiana terrorizing statute—with its requirements of
   imminency, causation of sustained fear, and specific intent—only
   criminalizes speech that is constitutionally unprotected because it falls within
   the incitement and true threat categories, as defined by the Supreme Court.
   In other words, because Bailey’s speech is not incitement or a true threat,
   and is therefore constitutionally protected, there can be no probable cause to
   believe that he violated La. R.S. 14:40.1.
                            C. First Amendment claim
          On appeal, the parties dispute the nature of Bailey’s First Amendment
   claim. “The First Amendment prohibits not only direct limits on individual
   speech but also adverse governmental action against an individual in
   retaliation for the exercise of protected speech activities.” Keenan v. Tejeda,
   

 (5th Cir. 2002). Defendants contend that in the district
   court Bailey limited himself to a First Amendment retaliation claim and thus
   forfeited any claim that his arrest was a direct limit on his First Amendment




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                                    No. 22-30509


   rights. Bailey responds that on these facts—where the basis for the arrest
   was speech itself—this is a distinction without a difference. According to
   Bailey, there is no dispute that Iles arrested Bailey because of his speech and
   no dispute that the arrest chilled his speech; rather, whether conceptualized
   as a retaliation claim or a direct infringement claim, the only issue is whether
   the speech was constitutionally protected. At this stage, we agree with Bailey
   that, regardless of how his claim is conceptualized, the district court erred in
   granting Iles qualified immunity.
          The district court approached Bailey’s First Amendment claim as a
   retaliation claim. To establish a claim for First Amendment retaliation,
   plaintiffs must show that “(1) they were engaged in constitutionally
   protected activity, (2) the defendants’ actions caused them to suffer an injury
   that would chill a person of ordinary firmness from continuing to engage in
   that activity, and (3) the defendants’ adverse actions were substantially
   motivated against the plaintiffs’ exercise of constitutionally protected
   conduct.” Keenan, 

.
          The district court determined that Bailey could not satisfy the first
   element because his speech was not constitutionally protected. As we
   explained in Section III.A, this was error. Bailey’s Facebook post was
   protected by the First Amendment. The district court then held that even if
   Bailey’s speech was constitutionally protected, Iles’ was still entitled to
   qualified immunity because there was probable cause to arrest Bailey
   pursuant to a “presumptively constitutional and enforceable statute.” See
   Michigan v. DeFellippo, 

 (1979). As we explained in Section
   III.B, that too was error because there was no probable cause and Iles was
   objectively unreasonable in believing otherwise.
          The district court also determined that Bailey could not satisfy the
   third element because one deputy telling him the “next thing [you] put on




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                                    No. 22-30509


   Facebook should be not to fuck with the police” did not create a genuine
   dispute as to whether the arrest was substantially motivated by “a retaliatory
   motive, rather than probable cause.”         We disagree, but for a more
   fundamental reason. Regardless of the unnamed deputy’s comment, Iles
   admitted that he arrested Bailey at least in part because of the content of his
   Facebook post, rather than for some other conduct, i.e. Iles admitted that the
   arrest was at least “substantially motivated” by Bailey’s speech. Cf. Westfall
   v. Luna, 

 (5th Cir. 2018) (granting qualified immunity when
   the record failed to show that the police officer’s actions were motivated by
   plaintiff’s speech rather than her conduct of reaching for a doorknob against
   officers’ instructions). Last, there is no dispute as to the second element, as
   Bailey’s speech was chilled when he deleted his Facebook post in response
   to the arrest.
          Further, Bailey has shown that Iles is not entitled to qualified
   immunity as to the First Amendment claim. Based on decades of Supreme
   Court precedent, it was clearly established that Bailey’s Facebook post did
   not fit within one of the narrow categories of unprotected speech, like
   incitement or true threats. See Brandenburg, 395 U.S. at 445–49; Hess, 414
   U.S. at 106–09;; Watts, 

; see also Kinney, 

   (“The central concept is that of ‘fair warning’: The law can be clearly
   established ‘despite notable factual distinctions between the precedents
   relied on and the cases then before the Court, so long as the prior decisions
   gave reasonable warning that the conduct then at issue violated constitutional
   rights.” (quoting Hope, 

)). Thus, when Iles arrested Bailey,
   he violated Bailey’s clearly established First Amendment right to engage in
   speech even when some listeners consider the speech offensive, upsetting,
   immature, in poor taste, or even dangerous. See, e.g. Hustler Mag., Inc., 

; Herceg, 814 F.2d at 1021–24.          The district court erred in
   concluding otherwise.




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                                    No. 22-30509


                                D. State law claims
          Bailey appealed only the dismissal of his state law false arrest claim
   and intentionally waived any challenge to the dismissal of his malicious
   prosecution claim. The parties agree that Bailey’s state law false arrest claim
   turns on whether there was probable cause for his arrest and that the Fourth
   Amendment probable cause analysis is thus determinative of this claim.
   Further, the parties agree that if Iles is liable for false arrest, then Wood is
   vicariously liable under Louisiana law for the tort of his employee. As we
   have already determined that the district court erred in concluding that there
   was probable cause for Bailey’s arrest, we reverse the district court’s grant of
   summary judgment to Defendants on Bailey’s state law false arrest claim.
                                  IV. Conclusion
          For the foregoing reasons, we hold that the district court erred in
   concluding that Bailey’s Facebook was constitutionally unprotected; erred in
   granting qualified immunity to Iles on Bailey’s Fourth and First Amendment
   claims; and erred in granting summary judgment to Defendants on Bailey’s
   state law false arrest claim. Therefore, we REVERSE the district court’s
   grant of summary judgment to Defendants and REMAND for further
   proceedings consistent with this opinion.




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