Court To Sheriff: Sending An Officer To Tell A Teen To Delete Instagram Posts Is So Very Obviously A Rights Violation

from the [tapping-top-of-house-visit]-you-can-fit-so-many-rights-violations-in-here dept

Wisconsin is apparently America’s Karen.

Public schools in Wisconsin referred students to police twice as often as schools nationwide in 2017-18 — nine students were referred to police for every 1,000 students enrolled compared to the national rate of 4.5, a Center for Public Integrity analysis of U.S. Department of Education data found.

Bring cops into schools and schools start thinking every disciplinary problem is a criminal problem. Far too many police departments lending officers to schools agree. Things may have improved over the last couple of years, but this is the latest data from Wisconsin’s public schools and it’s a pretty grim picture of school administrators abdicating their responsibilities and allowing law enforcement to pick up the slack.

Last year, a Wisconsin student sued the local sheriff and one of his officers for turning an Instagram post of hers into a criminal matter. The student, Amyiah Cohoon, had returned from a spring break trip with her school band and been admitted to a hospital with COVID-like symptoms. Her Instagram photos of her in the hospital were accompanied by statements that she had the coronavirus and wouldn’t be back to school anytime soon.

It turned out Cohoon did not have COVID. School administrators decided Cohoon was trying to provoke a panic by falsely claiming she did. They sent out a statement basically calling Cohoon a liar. Then they sent the local sheriff’s department after her. This is from her lawsuit:

During the evening on March 27, Defendant Patrol Sergeant Cameron Klump from the Marquette County Sheriff’s office came to the Cohoons’ home. Amyiah answered the door, and Sergeant Klump said he needed to speak with her father.

After Mr. Cohoon came outside, Sergeant Klump explained that the school “superintendent” had complained to Defendant Sheriff Joseph Konrath about one of Amyiah’s Instagram posts. Sergeant Klump showed Mr. Cohoon a screenshot of Amyiah’s third Instagram post. A true and accurate copy of the cropped screenshot Sergeant Klump showed Mr. Cohoon is attached hereto as Exhibit 5.

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.”

Faced with possibly having her parents arrested, the student deleted her posts. Then she sued. And the court has now told Sheriff Joseph Konrath what he already likely knew: threatening her (and her parents) with arrest over Instagram posts was a clear violation of her First Amendment rights. (h/t Gabriel Malor)

The opening of the ruling [PDF] makes it clear where this is headed:

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.

And the Sheriff was limited to making arguments about why this wasn’t a rights violations, rather than quibbling about contradictory representations of the incident that forms the basis for this lawsuit. There’s no argument to be had here because the whole thing was caught on tape.

The parties agree that the facts are not disputed. Indeed, the entirety of Sergeant Klump’s encounter with Amyiah and her parents is captured in a dash-cam video. That video, along with other record evidence, establishes that Defendants violated Amyiah’s free-speech rights by demanding that she take down her social media posts or face criminal citation or arrest.

Continuing in the spirit of things that cannot be questioned, the court says there’s not even the slightest shade of gray in this series of events. This was absolutely a violation of rights.

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.

The best defense the Sheriff offered was an inadvertent punchline — one that demonstrates the person raising the argument understands neither the First Amendment nor the precedent they’re citing incorrectly.

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, 249 U.S. 47, 52 (1919) (emphasis added), Defendants’ argument still fails.

Even if the government has an interest in protecting the public and heading off potential panics, its interests do not automatically override the rights guaranteed to citizens. The balancing test doesn’t even need to be deployed here because the government’s actions were so clearly in the wrong.

Labeling censorship societally beneficial does not render it lawful. If it did, nearly all censorship would evade First Amendment scrutiny. […] 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.

The correct response in situations like these is more speech. It certainly isn’t the dispatching of officers to a teen’s house to deliver threats of arrest.

The government here had every opportunity to counter Amyiah’s speech, but it opted instead to engage in the objectionable practice of censorship.

Every argument raised by the government is immediately shut down. Wrong all the way down.

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.

Furthermore, the demand was accompanied by threats to Cohoon and her parents. Even if she wasn’t present for the entire conversation, she inferred the intent of the visit correctly. She deleted the posts while the deputy was still speaking to her father and she later deleted another post discussing her hospital stay, fearing officers would return again if that one wasn’t removed. And yet the Sheriff claimed this was all voluntary because no officer ever ordered her to remove the posts. Wrong, oh so very wrong again, says the court:

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.

Imagine your tax dollars being spent to pay the government and its lawyers to argue this badly against your own interests. This is money being burnt by people too obtuse and too shortsighted to notice they’ve set something on fire. Every defensive effort in this suit is a last-gasp effort.

Here’s the court dismantling the defense that the Sheriff’s office truly believed a law was being broken, thus excusing every subsequent rights violation.

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.” In re Douglas D., 2001 WI 47, ¶47, 243 Wis. 2d 204, 239-40, 626 N.W.2d 725, 743. Defendants offer no answer to this precedent, which removes any basis for probable cause.

The government loses. It was a loss its representatives — both from the school and from the Sheriff’s office — should have seen coming. None of this needed to happen. But no one with any power had the self-awareness to be the adult in the room nor the overall awareness that sending law enforcement out with demands to remove social media posts was exactly the sort of thing the First Amendment was erected to guard against.

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Comments on “Court To Sheriff: Sending An Officer To Tell A Teen To Delete Instagram Posts Is So Very Obviously A Rights Violation”

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29 Comments
This comment has been deemed insightful by the community.
Vermont IP Lawyer (profile) says:

Remedy

I like this text from the Court’s opinion: "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."

In answer to the question posed by Anonymous Coward, it doesn’t look like the court has awarded money damages or injunctive relief–just a declaratory judgement.

Tanner Andrews (profile) says:

Re: Remedy

A dec action may seem a somewhat empty remedy, but it provides a learning experience for the department in that it does receive a public shaming. Also, in the context of a civil rights action, I expect that they will get to pay fees.

All of this is at taxpayer expense, of course. No offending police will be harmed in their wallets.

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That One Guy (profile) says:

'Nice lack of incarceration you got there, be a shame if...'

Claiming that someone from law enforcement with the power(and orders apparently) to toss you in a cell for non-compliance showing up for a ‘chat’ isn’t coercive is like saying that a mugging isn’t coercive if they just indicate that they’ve got a weapon and it sure would be a shame if they had to draw it. You don’t need to make a threat explicitly for one to be inferred and the school and department wouldn’t have sent someone with a badge if they didn’t intend to force the issue.

That absurdity of an argument aside it’s nice to see a court actually see the threat for what it was and not only that openly call out such a blatant first amendment violation, that happens far too infrequently with far too many judges just shrugging rights violations off as no big deal. That said apparently they didn’t actually hand out any sort of punishment which doesn’t exactly provide any reason for the sheriff’s department to do anything different should this come up again, as it’s not like it cost them anything do defend their actions in court.

Anonymous Coward says:

Re: 'Nice lack of incarceration you got there, be a shame if...'

That said apparently they didn’t actually hand out any sort of punishment

For better or worse, that’s kind of on the plaintiff(s) – as I heard it, they asked for declaratory judgement (I think that this was a 1A violation) which they got, and like a permanent injunction against the sheriff’s office so they can’t make these threats again (this part was essentially denied/ignored as moot by the judge), but they didn’t ask for a big pile of money, so the court isn’t going to just arbitrarily slap the cops with a monetary penalty.

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Anonymous Coward says:

What the hell was even the motivating concern here? Did they literally think these posts would cause a panic?

(And if so, so what? People panic over anything. Government and some people love a good panic if they are steering it.)

(Also, where are all the people who can’t seem to give a fuck about COVID, who panic if you ask them to wear a msk or something?)

(Or is this more like, "No way did she get sick on my watch, I won’t have it" sort of thing?)

Clearly, if school admins knew about this post, loads of other people knew about the post. Was there a "panic"?

So, she was in the hospital with an illness that turned out not to be COVID. So, uh, only if people thought it was COVID would they "panic", it wouldn’t matter if it was some other possibly transmissible disease? What even?

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.

Did the Health Department even have an interest? Why? Sounds like a school admin problem. And why should anyone be askeing her to retract a post? Ridiculous.

That One Guy (profile) says:

Re: Re:

(Or is this more like, "No way did she get sick on my watch, I won’t have it" sort of thing?)

The first thought that comes to mind for me at least is somewhat similar to that in that if she was confirmed as covid-positive then the school administration now has to take it seriously, contacting parents, taking steps to mitigate the spread and potentially riling up the maskholes, that sort of thing. Much easier to just threaten her to take the posts down and brush the whole thing under the rug.

ECA (profile) says:

Doent this fall back

The school, making a complaint?
And the police forgetting that the Only area covered BY the school is the property they SIT ON.
The only thing the school Could of/should of done is ASKED for a letter from the Doctor, IF she had Covid or not.

Talling others she has covid, when there is a very high probability that More then Herself in that Town/city/area HAS IT, isnt real news of Much to worry about. Might as well report having a cold from every person in town, you would never get off the phone.

This comment has been deemed insightful by the community.
Anonymous Coward says:

It turned out Cohoon did not have COVID.

No, she tested negative. That’s not the same thing as saying she didn’t have it; the tests are not 100%. The doctors explicitly told her that she might have missed the window for a positive test even if she had it. (And if they were so sure she didn’t have it, the doctors wouldn’t have told her to keep quarantining.)

Cowardly Lion says:

Robert Meicher - fool extraordinaire

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. (Id. at 8-9.) 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.”

What a wanker…

This comment has been deemed insightful by the community.
That Anonymous Coward (profile) says:

Re: Robert Meicher - fool extraordinaire

"This was a foolish means to get attention and the source of the rumor has been addressed."

So she faked being in the hospital, having Co-Vid like symptoms, wasted the time of medical professionals just to get attention?
Or… perhaps some asshole sent kids to Florida (Home of DeathSantis) thinking ‘what me worry?’ & discovered how poorly things go when parents start to question how fucking stupid you are.
No, It’s the children who are wrong dot gif.

This moron needs to fired.
He did no investigation, lied about the event, & decided to shred the Constitution all in an attempt to avoid anyone questioning the wisdom of sending children to the super spreader state.
He was more worried people might blame him for an outbreak than if anyone actually was sick… and as noted in other replies funny the school had an outbreak of covid the following Monday after this event happened.

This administrator decided how he looked in the community mattered more than admitting he put children at risk & he contributed the the outbreak that then happened on his watch.

I think DeathSantis has a cabinet opening for someone with this sort of thinking.

Douglas Self says:

Bullying by LEO over Social Media posts

I fail to see how this teenager’s posting of her getting sick and concern it might be COVID was ANY business of the school administration and especially the Sheriff’s Department. That "educator" is a nitwit and should be FIRED and SUED for his misuse of his authority. But even MORE onus should befall the sheriff and his deputy. Where was there even reasonable suspicion of a crime to investigate, let alone probable cause? Certainly the deputies’ conduct should be sanctioned, as he had no authority to threaten arrest.

What the parents should have done is to ask the deputy if he had a warrant. If he said, "No", then tell him that they wanted him to leave the premises, immediately, and shut the door on him. All the while, recording, Recording, RECORDING the encounter on their cell phone camera. A lot of this hassle could have been avoided if folks understood their civil rights and peacefully asserted them.

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