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

The Constitution is hard.

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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)

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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.

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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.

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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