Law Enforcement’s Efforts to Scrub COVID “Misinformation” Online Violated the First Amendment–Cohoon v. Konrath

Amyiah Cohoon is a high schooler in central Wisconsin. In March 2020, she contracted a respiratory illness. A COVID test came back negative, but the doctor told her it may be a false negative and told her to quarantine. She posted on Instagram that she had COVID. Unsurprisingly, her posts prompted consternation in her local community because, at the time, her county had no officially reported COVID cases. The County Health Department contacted the local sheriff Konrath, who sent Sgt. Klump to Cohoon’s house to get her to remove the Instagram posts. (Doesn’t “Sgt. Klump” sound like a character straight out of Hogan’s Heroes?) Klump told Amyiah’s dad that “we need to get it taken down” and “If [the post] doesn’t come down, the Sheriff has directed me to issue disorderly conduct citations, if not start taking people to jail.” Amyiah deleted the Instagram posts on the spot and remains afraid to post about COVID again.

These facts are brazenly censorial. There was no nuance to the law enforcement effort to censor speech; it was the raw exercise of government power, coupled with a realistic threat of incarceration for noncompliance. I’d say these facts are shocking, but in fact we see censorship of this type all too frequently. What’s truly shocking is that these facts don’t shock us at all.

She sued the sheriff’s office for a declaratory judgment that it had violated her First Amendment rights. The court agrees, in an opinion filled with numerous gems and zingers supporting free speech, such as:

• “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.”
• “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.”
• “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.”
• “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….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.”
• “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.”
• “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.”

(Also, the sheriff invoked the tired “shouting fire in a crowded theater” trope, but the court swats it down several ways).

While Amyiah was not intentionally disseminating COVID misinformation due to her doctor’s guidance, the court makes it clear that the First Amendment would protect her even if she had falsely claimed to have COVID. This highlights how the First Amendment protects online COVID misinformation, and indeed other categories of misinformation, from law enforcement’s efforts to remove it. That’s not news, of course. Anyone who is intellectual honest about the First Amendment has been insisting this all along. Nevertheless, we have seen many seemingly-smart people, and politicians, advocate for government censorship of online misinformation about COVID or other topics. This ruling reiterates that those efforts directly contravene the First Amendment.

Worse, some pro-censorship people have claimed that Section 230 should be amended to curb online misinformation. This ruling shows how such efforts will fail–the First Amendment eliminates any legal liability for the underlying misinformation, so rejiggering an immunity from liability won’t change any behavior if there’s no liability in the first place. As a result, the people advocating for Section 230 reform to “fix” COVID misinformation are themselves engaging in a pernicious form of misinformation. If they want to curb bad information in our ecosystem, they should start with themselves.

Case citation: Cohoon v. Konrath, 2:20-cv-00620-BHL (E.D. Wis. Sept. 24, 2021). The complaint.