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Sheriff Violated First Amendment by Ordering Teen to Take Down Post Saying She Had COVID

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Free Speech

Eugene Volokh | 9.25.2021 11:11 AM

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........

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