Court Upholds Bioweapons Conviction for ‘Shit Talking’ About Licking Groceries

COVID misinformation not protected speech. A man who lied on Facebook about paying someone with COVID to lick items at a grocery store is not protected by the First Amendment, according to the U.S. Court of Appeals for the Fifth Circuit. The court’s decision upholds a conviction handed to 40-year-old Christopher Charles Perez last October.

Back in April 2020, Perez posted on Facebook: “My homeboys cousin has covid19 and has licked every thing for past 2 days cause we paid him to … YOU’VE BEEN WARNED.” He quickly took down that post, but subsequently shared a story about someone at a local grocery store testing positive for COVID with “Lol..I did try to warn y’all.”

When the FBI showed up at his door soon thereafter, Perez apologized and told them he had only been “shit talking.” He said his motive was trying to get people to take San Antonio’s stay-at-home order seriously.

A federal jury found Perez guilty of violating a federal law against false information and hoaxes related to crimes. He was sentenced to 15 months in prison and a $1,000 fine for spreading false information related to a biological weapon.

The whole thing smacks of insane overreach, initially brought by prosecutors to send a message in a time of heightened tension and paranoia. Perez’s actions may have been misguided or irresponsible, but it seems like a dangerous development to classify them as criminal—and a matter for FBI investigation and federal prison, no less.

“The FBI’s Joint Terrorism Task Force, along with Weapons of Mass Destruction personnel, conducted this investigation,” notes a Justice Department press release from last fall. The task force was established “to investigate and prosecute the most culpable domestic and international criminal actors.”

Posting something stupid—and untrue—about a diseased cousin licking groceries apparently counts as a major incident of terrorism now.

In an August 3 decision, a panel of three appeals court judges upheld Perez’s conviction but vacated his sentence, sending the case back to a lower court for re-sentencing. (The reason for the sentencing has nothing to do with the offense at hand; it relates to the way the court used Perez’s criminal history—which included a 2007 conviction for possession of a controlled substance—to incorrectly establish the sentencing guidelines. Without this miscalculation, the guidelines would have suggested a 12- to 18-month sentence instead of a sentence of 15 to 21 months.)

In his appeal, Perez had argued that “the biological-weapons statute does not extend to conduct such as licking items in a grocery store and that the terrorist-hoax statute is an unconstitutional restriction on free speech,” notes the court’s opinion, written by Fifth Circuit Judge Jerry E. Smith.

Smith notes that Perez was truthful with the FBI as soon as he was questioned and that “there is no indication that Perez’s posts caused public panic.” Nonetheless, the court decided that because the ramifications could have been severe if Perez really had paid someone with COVID to lick groceries, merely saying that he did was a federal crime.

“Although the biological-weapons statute does contain an implied exception for local crimes, Perez’s purported conduct was serious enough to place him within the purview of federal law enforcement,” states the opinion. “If the act had actually been carried out, it could easily have created an outbreak of COVID-19 that could have been hard to contain. The resulting panic could al