MADISON — The First Amendment cannot be constrained in the name of a pandemic.
That’s the ruling of a federal judge who finds Marquette County law enforcement officials violated the speech rights of a teen when they threatened to arrest her after she posted on Instagram that she had COVID-19 in the opening months of the pandemic.
“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,” wrote U.S. District Court Judge Brett Ludwig in his decision, “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.”
Ludwig granted Amyiah Cohoon, at the time a sophomore from Oxford, and her parents summary judgment. And the defendants, Sheriff Joseph Konrath and Sergeant Cameron Klump, cannot escape liability by invoking probable cause or qualified immunity, the judge wrote.
As Empower Wisconsin reported, on March 27, 2020, Klump threatened to cite or jail Amyiah or her parents if she did not remove the social network post indicating she was recovering from COVID-19, according to the lawsuit.
Amyiah, a student at Westfield High School, ended up in the hospital. She tested negative for COVID-19 in Madison, but doctors noted that the 16-year-old had “symptoms consistent with COVID-19” but had missed the testing window, according to the court documents.
Recovering at home, Amyiah posted to Instagram. The post included a photo of herself at the hospital with an oxygen mask on her face.
“I am finally home after being hospitalized for a day and a half. I am still on breathing treatment but have beaten the coronavirus. Stay home and be safe,” Amyiah wrote, according to court documents.
Westfield School District officials quickly responded with a districtwide message asserting Amyiah was not telling the truth. Administrators then complained to the Marquette County Sheriff.
Klump was dispatched to the Cohoons’ home.
“Sergeant Klump stated that he had direct orders from Sheriff Konrath to demand that Amyiah delete this post, and, if she did not, to cite Amyiah and/or her parents for disorderly conduct and to ‘start taking people to jail,’” the lawsuit alleges.
“The police report also states that Klump ‘advise[d] Richard [Cohoon] that if they were not willing to take the post down, that there would be the possibility of a County Ordinance Disorderly Conduct or being arrested for Disorderly Conduct,’” court documents claim.
The family argued for their constitutional rights, but eventually took down the posts after the threat from law enforcement.
“This decision underscores that First Amendment rights cannot be dispatched within an emergency. More importantly, law enforcement has no business trying to regulate the social media posts of local teenagers,” said Luke Berg, deputy counsel for the Wisconsin Institute for Law & Liberty (WILL). The Milwaukee-based civil rights law firm represented the family in the lawsuit.
Konrath did not return a call seeking comment. Marquette County Administrator Ron Berger, reached on Friday, declined to comment because he had not read the ruling.
Konrath and Klump had argued that even if Amyiah could establish a First Amendment Retaliation Claim, her request for relief would fail because law enforcement had probable cause to arrest her under the Wisconsin Disorderly Conduct statute and they are entitled to qualified immunity.
“Both arguments fail,” Ludwig wrote.
“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,” the ruling states.
Amyiah’s posting on Instagram isn’t disorderly conduct by any definition of the statutes. The teen did nothing to “corrupt public morals or outrage the sense of public decency,” as courts have interpreted the statute, Ludwig wrote.
And qualified immunity — which shields government officials from being held personally liable for constitutional violations — does not apply to requests for declamatory relief, as in this case.
Ludwig notes the law enforcement officials “graciously” built the teen’s case for her. Klump wrote in the incident report, “ “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 . . . .”
“By Defendants’ own admission, then, the entire purpose for Sergeant Klump’s visit and, by extension, the motivation for his threat of arrest, was to achieve the removal of Amyiah’s protected speech from her Instagram account,” the ruling states.