The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Sheriff Violated First Amendment by Ordering Teen to Take Down Post Saying She Had COVID
“Defendants may have preferred to keep Marquette County residents ignorant to the possibility of COVID-19 in their community for a while longer, so they could avoid having to field calls from concerned citizens, but that preference did not give them authority to hunt down and eradicate inconvenient Instagram posts.”
From Judge Brett Ludwig's decision yesterday in Cohoon v. Konrath (E.D. Wisc.); generally quite correct, I think (though there might be room for punishing people who—unlike the plaintiff here—deliberately publicly lied about having a communicable disease, as there may be for punishing people who put out hoaxes about having committed crimes):
The SARS-CoV-2 virus and COVID-19 have had a tremendous impact on American society. But, as this case makes clear, that impact has its limits and, more specifically, does not extend to overriding the protections of the First Amendment…. [Defendants Sheriff Joseph Konrath and Patrol Sergeant Cameron Klump] violated [Amyiah Cohoon's] free-speech rights by demanding that she take down her social media posts or face criminal citation or arrest….
In March 2020, Amyiah, then a sophomore at Westfield Area High School, traveled with her school band on a spring break trip to Disney World and Universal Studios in Florida. During that trip, various states, including Florida and Wisconsin, declared public health emergencies in response to the then just-emerging COVID-19 pandemic. Four days after returning home from Florida, Amyiah began feeling ill. Her symptoms included a fever and dry cough. Two days later, she began having trouble breathing, so her mother took her to the emergency room at Divine Savior Hospital in Portage, Wisconsin.
The doctors at Divine Savior evaluated Amyiah and diagnosed her with an "acute upper respiratory infection." They informed her that her symptoms were consistent with COVID- 19 but said they could not test her for the virus due to the testing criteria in effect at the time. They then discharged her with an inhaler and instructions to strictly self-quarantine for 14 days and return if her condition worsened. They also instructed her parents to self-quarantine for 14 days, consistent with the COVID-19 protocols in place at the time. After returning home, Amyiah posted about her experience on Instagram, captioning a photo of herself from the spring break trip with: "Hey guys… sorry I've been on a long break.. I won[']t be back for a while longer due to me no[w] having the COVID-19 virus… I don't want the attention it[']s just the truth… I am now in self quarantine and am not allow[e]d to leave my room and have an inhaler since they said to go home… best of wishes. love you guys."
Three days later, on March 25, 2020, Amyiah's symptoms worsened. Her mother promptly took her back to Divine Savior, which then redirected her via ambulance to University of Wisconsin Children's Hospital in Madison. Once admitted to UW Children's, Amyiah was finally tested for COVID-19. Her test came back negative the following morning, but the doctors told the Cohoons that she may still have had COVID-19 and simply missed the window for testing positive. To that end, they released her with orders to continue her 14-day quarantine.
After arriving home from the hospital, Amyiah again took to Instagram. She posted a photo of herself with an oxygen mask on her face, captioned: "I am finally home after being hospitalized for a day and a half. I am still o[n] breathing treatment but have beaten the corona virus. Stay home and be safe[.]" At the time of this post, Marquette County, Wisconsin had yet to register even a single confirmed positive COVID case. In response to Amyiah's post, the County Health Department and the Westfield School District received numerous phone calls from concerned citizens.
In hopes of convincing Amyiah to voluntarily remove the post, the County Health Department referred the matter to County Sheriff Konrath. Sheriff Konrath relayed the necessary information to Sergeant Klump, who was on duty at the time. The content of this conversation was later summarized in Sergeant Klump's Detail Incident Report, which Sheriff Konrath reviewed and approved. The Report states: "Sheriff Konrath advised he wished for me to respond to the residence and have [Amyiah's] post removed from her social media … When I advised [Mr. Cohoon] that I was there to have [Amyiah] remove the post, he became upset …."
On the evening of March 27, 2020, Sergeant Klump arrived at the Cohoons' home. A microphone and dash-cam captured the audio and video of the ensuing interaction. Sergeant Klump spoke for some time with Mr. Cohoon before Mrs. Cohoon and Amyiah joined them outside the house. Upon exiting the house, Amyiah heard Sergeant Klump explain: "All I'm here for is to figure out what this post is about, seeing she tested negative …. And we need to get it taken down." Amyiah then agreed to go inside and take the post down. While she was inside, Sergeant Klump threatened Mr. Cohoon: "If [the post] doesn't come down, the Sheriff has directed me to issue disorderly conduct citations, if not start taking people to jail."
After removing the post, Amyiah exited the house again and showed Sergeant Klump her Instagram page. While outside, Amyiah heard her father twice repeat Sergeant Klump's earlier threat: "[Y]ou guys want to threaten somebody with going to jail over it and add insult to injury?," and "[I]t doesn't do any good when you can't warn [people] when you got a Sheriff's department threatening to throw people in jail over it." Sergeant Klump did not correct Mr. Cohoon's recitation of the threat, instead saying, "I'm just doing what we can do as a Sheriff's Office. Okay?"
After Sergeant Klump departed, Amyiah also deleted her March 22 Instagram post about her first trip to Divine Savior. Later that evening, the Cohoons discovered that Westfield School District Superintendent Robert Meicher had sent a news update to families in the district that included a statement about Amyiah's posts. The update read: "It was brought to my attention today that there was a rumor floating out there that one of our students contracted Covid-19 while on the band trip to Florida two weeks ago. Let me assure you there is NO truth to this. This was a foolish means to get attention and the source of the rumor has been addressed." Amyiah has not posted about her experience with COVID-19 on social media since….
Plaintiff's Instagram Post Was Unquestionably Protected Speech Under the First Amendment.
Even if short and often grammatically scurrilous, social media posts do not fall outside the ambit of the First Amendment. To the contrary, they are exactly what the First Amendment seeks to protect. In the eyes of the law, when Amyiah Cohoon took to Instagram, she was no different than John F. Tinker wearing his black armband in the halls of the Des Moines public schools, or Paul Robert Cohen donning his "Fuck the Draft" jacket in the corridors of the Los Angeles County Courthouse, and her speech deserved the same degree of protection.
But Defendants disagree. In their view, Amyiah forfeited her constitutional protection when she published a post that caused concern in the community and led to an influx of phone calls to the Westfield School District and Marquette County Health Department. According to Sheriff Konrath, this was akin to "screaming fire in a crowded movie theater." Even setting aside that the popular movie theater analogy actually referred to "falsely shouting fire in a theater and causing a panic," Schenck v. United States (1919) (emphasis added), Defendants' argument still fails. While content-based speech restrictions are permissible in limited circumstances (incitement, obscenity, defamation, fighting words, child pornography, etc.), the Supreme Court "has rejected as 'startling and dangerous' a 'free-floating test for First Amendment coverage … based on an ad hoc balancing of relative social costs and benefits.'"
Labeling censorship societally beneficial does not render it lawful. If it did, nearly all censorship would evade First Amendment scrutiny. Defendants may have preferred to keep Marquette County residents ignorant to the possibility of COVID-19 in their community for a while longer, so they could avoid having to field calls from concerned citizens, but that preference did not give them authority to hunt down and eradicate inconvenient Instagram posts. Amyiah's post is not captured by any of the categorical exceptions to the First Amendment, so this Court will not balance the social utility of curtailing it against its government-assigned value.
But Defendants persist. They cast Amyiah's characterization of her illness as a lie, insisting that because she ultimately tested negative, she was prohibited from publicly proclaiming that she had beaten COVID-19. But the very doctors who tested her also informed her that she may have had COVID-19 in spite of the negative test.
Her Instagram posts were, therefore, at worst, incomplete. The notion that the long arm of the government—redaction pen in hand—can extend to this sort of incomplete speech is plainly wrong. The Marquette County Sheriff had no more ability to silence Amyiah's posts than it would to silence the many talking heads on cable news, who routinely pronounce one-sided hot takes on the issues of the day, purposefully ignoring any inconvenient facts that might disrupt their preferred narratives. Indeed, even if Amyiah's posts had been untruthful, no court has ever suggested that noncommercial false speech is exempt from First Amendment scrutiny. See United States v. Alvarez (2012). The Supreme Court has emphasized: "[t]he remedy for speech that is false is speech that is true. This is the ordinary course in a free society." The government here had every opportunity to counter Amyiah's speech, but it opted instead to engage in the objectionable practice of censorship.
{Defendants insist that, based on his knowledge at the time of the encounter, Sergeant Klump had probable cause to arrest Amyiah under the Wisconsin and Marquette County Disorderly Conduct provisions. In relevant part, these provisions punish "[w]hoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance[.]"
Defendants appear to recognize that none of the statute's specific enumerations even remotely apply to Amyiah's Instagram post and thus focus on the "otherwise disorderly conduct" language. Wisconsin courts have interpreted this phrase to encompass acts that corrupt public morals or outrage the sense of public decency. Defendants argue that, even if his belief was ultimately mistaken, Sergeant Klump had a reasonable basis to believe there was probable cause to arrest Amyiah under the catchall disorderly conduct language because he had been informed that her Instagram post was causing significant disturbance, anxiety, fear, concern, and even panic among other citizens.
Defendants' probable-cause argument dramatically understates the probable-cause analysis for disorderly conduct. If accepted, Defendants' position would largely gut the First Amendment's protection for free speech, allowing police officers a free hand to wrongfully arrest anyone engaging in protected speech so long as the offending officer could point to a possible disturbance or perceived anxiety among those who opposed the speech. Accordingly, the Wisconsin Supreme Court has held that speech that "falls within the protection of the First Amendment … may not be punished as disorderly conduct." Defendants offer no answer to this precedent, which removes any basis for probable cause. Because Amyiah's social media posts were protected speech, Sergeant Klump could not have reasonably believed he had probable cause to arrest her or her family. Defendants' probable-cause defense fails as a matter of law.} …
Defendants Took Adverse Action Against Plaintiff.
The audiovisual recording of the police encounter at the Cohoon home captured Sergeant Klump threatening Mr. Cohoon: "If [the post] doesn't come down, the Sheriff has directed me to issue disorderly conduct citations, if not start taking people to jail." According to Defendants, though, because Sergeant Klump never made this threat to Amyiah directly—instead uttering the threat when only her father was present—she could not have personally experienced any threat of adverse action. This superficial analysis fails for a number of reasons.
First, the record makes clear that Sergeant Klump's intention throughout his 30-minute visit was to get Amyiah to remove her social media posts through the use of threats against her and perhaps her parents. That he expressed this intent only during his discussions with Amyiah's father, after Amyiah had retreated into the house to comply with the police officer's demand, does not mean that she was not the realistic subject of threatened police action. Indeed, it appears that Amyiah made the logical 'hop' necessary to infer the sergeant had threatened her arrest because, in her sworn declaration, she recalled, "After [Sergeant Klump] left, I was afraid that he would find my first post and come back for that one, so I deleted that post too." Moreover, she stated, "I would also like to post further about my scare with COVID-19 on social media, and to repost the posts I removed, but I am afraid that another officer will come to my home and cite or arrest my parents or me." So not only was Sergeant Klump's threat of arrest likely to deter a person of ordinary firmness from engaging in protected conduct, in this case it did just that….
Analogizing to a citizen's ability to consent to a warrantless police search of their property, Defendants argue that Amyiah's decision to acquiesce in deleting her Instagram post rendered her action voluntary and, therefore, outside the scope of First Amendment protection. Defendants correctly allude to the important "difference between government expression and … intimidation—the first permitted by the First Amendment, the latter forbidden by it." In the First Amendment retaliation context, "'[w]hat matters is the distinction between attempts to convince and attempts to coerce.'"
Defendants ask the Court to lump Sergeant Klump's efforts into the "attempts to convince" basket. Amyiah agreed to delete her Instagram post prior to learning of Sergeant Klump's threats. How then, Defendants ask, can she possibly claim coercion? This argument ignores the inherently chilling and coercive nature of a uniformed police officer showing up at a teenager's home and demanding that she cease otherwise protected speech.
Sergeant Klump's dash-cam footage shows that it was not his persuasive rhetoric that led Amyiah to delete her social media post, but rather his demand made under the auspices of the Sheriff's Department: "[W]e need to get it taken down." That was coercion by any metric. The state cannot dispatch a law enforcement officer to the home of a teenager to demand that she remove an Instagram post that government officials disagree with and then claim the officials were only engaging in the Socratic method.
It is possible that a Westfield administrator or Marquette County Health Department employee could have engaged in a mutually-respectful discussion with Amyiah to try to convince her to retract her post voluntarily, but that is not the method they chose. They elected, instead, to rely on the coercive power of the Sheriff's Department, and any attempt to obfuscate that fact by casting Sergeant Klump as an earnest public relations expert must fail.
Conclusion
The First Amendment is not a game setting for the government to toggle off and on. It applies in times of tranquility and times of strife. While Defendants in this case may have believed their actions served the greater good, that belief cannot insulate them. Demanding a 16-year-old remove protected speech from her Instagram account is a First Amendment violation. Declaratory judgment {establishing that Defendants violated her First Amendment rights} is granted….
Congratulations to Luke Berg and Rick Esenberg of the Wisconsin Institute for Law & Liberty, who represented Cohoon.
