The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Scott Shackford posted at Reason about this Friday; I had meant to blog about it, but it slipped my mind. Here's an excerpt:
A family in Oxford, Wisconsin, is suing the local sheriff's department after a patrol sergeant threatened to arrest a teenage girl for disorderly conduct for posting on Instagram about being infected with COVID-19.
Amyiah Cohoon, 16, is a student at Westfield Area High School in Westfield, Wisconsin…. According to this lawsuit, … [s]he was diagnosed with an upper respiratory infection with "symptoms consistent with COVID-19," according to the lawsuit.
Cohoon went home and posted on Instagram letting people know that she had COVID-19 and was in self-quarantine. Her condition worsened and she was brought to the hospital for treatment. She posted again about the experience on Instagram. Finally, they were able to test her, but the test came back negative. According to the lawsuit, doctors told her it was likely she missed the window for testing positive, but she probably did have COVID-19, despite the test results. (False negative results have been an ongoing issue in accurately diagnosing infections.)
Some precedents suggest that public hoaxes about supposed dangers (e.g., deliberately falsely saying "I have coronavirus, and I was just in this store with all these other people") are punishable, but I'm pretty confident that this would be limited to knowing lies: Simply saying that one has a disease when one sincerely believes this is so, even if it's not certain, remains constitutionally protected. And certainly accurate reports of having a disease are protected, even if people find them disturbing. In any case, it will be interesting to see what happens with the lawsuit.