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A family in Oxford, Wisconsin, is suing the local sheriff’s department after a patrol sergeant threatened to arrest a teenage girl for disorderly conduct for posting on Instagram about being infected with COVID-19.

Amyiah Cohoon, 16, is a student at Westfield Area High School in Westfield, Wisconsin. According to this lawsuit, she and schoolmates went to Disney World and Universal Studios in Florida for a spring break trip in early March, right as the coronavirus was beginning to spread and businesses began to shut down. She and her classmates canceled the trip early and returned home.

Once home, Cohoon began developing symptoms associated with COVID-19. She sought medical assistance, but at the time they were unable to test her to see if she was infected. She was diagnosed with an upper respiratory infection with “symptoms consistent with COVID-19,” according to the lawsuit.

Cohoon went home and posted on Instagram letting people know that she had COVID-19 and was in self-quarantine. Her condition worsened and she was brought to the hospital for treatment. She posted again about the experience on Instagram. Finally, they were able to test her, but the test came back negative. According to the lawsuit, doctors told her it was likely the missed the window for testing positive, but she probably did have COVID-19, despite the test results. (False negative results have been an ongoing issue in accurately diagnosing infections.)

After she returned home from this visit, she posted again on Instagram and included a picture of herself at the hospital wearing an oxygen mask.

The very next day, Patrol Sergeant Cameron Klump from Marquette County Sheriff’s Department showed up on the family’s doorstep. He was there under orders from Sheriff Joseph Konrath to demand that Amyiah and her father, Richard Cohoon, remove Amyiah’s Instagram posts. If they refused, Klump said the family faced charges for disorderly conduct and Klump told them he would “start taking people to jail,” according to the suit.

Konrath’s justification was that there had been no confirmed cases of COVID-19 in the county. He found out about the Instagram post from Amyiah’s high school. The Cohoon family had contacted the school to let them know about Amyiah’s infection, but nobody ever contacted them back to get more information. It appears that instead the school contacted the police. Under the threat of arrest, Cohoon complied and deleted the allegedly illegal Instagram post.

That evening the family would discover that a school administrator sent out an alert to families accusing Cohoon of making it up and assuring families that any information of infection was just a rumor. “Let me assure you there is NO truth to this,” the message read. “This was a foolish means to get attention and the source of the rumor has been addressed. This rumor had caught the attention of our Public Health Department and she was involved in putting a stop to this nonsense.”

The family then connected with the Wisconsin Institute for Law and Liberty, and the Institute sent a letter to Konrath warning him that he had violated Cohoon’s First Amendment rights and demanded both an apology and the promise that there would be no further threats of criminal charges against the family for Amyiah’s post.

Konrath refused, and now the Wisconsin Institute of Law and Liberty is suing Konrath and Klump in the U.S. District Court for the Eastern District of Wisconsin for violating Cohoon’s First and 14th Amendment rights. Her Instagram posts are protected speech, the Institute argues, and there was nothing about her posts that violated the county’s disorderly conduct law, and even if they did, the Wisconsin Supreme Court has held that disorderly conduct statutes in the state cannot be applied to speech protected by the First Amendment.

The Wisconsin Institute for Law and Liberty is asking the court to rule that Cohoon’s  posts were protected speech and order that the sheriff’s department may not threaten or cite Cohoon or her family for these posts, plus paying “nominal damages.”

The sheriff’s department is not backing down or even acknowledging an overreaction. According to the Milwaukee Journal Sentinel, their position remains that the one negative test means that she did not have COVID-19, which simply isn’t how it works. The Sentinel reports:

Sam Hall, an attorney for the sheriff, said the teenager “caused distress and panic” among other parents by claiming she had contracted the coronavirus despite getting a negative test result.

“This case is nothing more than a 2020 version of screaming fire in a crowded theater,” he said, referring to speech that is not protected by the First Amendment.

That the sheriff’s lawyer is misusing the much-maligned “fire in a crowded theater” argument from Schenck v. United States is a huge tell that these guys don’t have a leg to stand on. It’s a bad argument, a bad precedent (it was about censoring anti-war activism), and the Supreme Court has subsequently weakened that decision and broadened our free speech protections.

And even if that ruling remained relevant, Amyiah Cohoon was not engaging in the equivalent of “shouting fire in a crowded theater.” Because of the significant number of false negative test results, it’s appropriate for health staff to treat her as though she likely has COVID-19 based on her symptoms. It’s also appropriate for the Cohoon family to attempt to warn families of the students who went with her to Florida that they might have been exposed, too.

It’s the school officials and the police who behaved irresponsibly, not Amyiah or her family.

Read the complaint here.

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American government-level responses to the COVID-19 pandemic predictably divide along partisan lines. That’s meant a lot of televised sniping between Republicans and Democrats, as well as competing narcissistic windbaggery from President Donald Trump and New York’s Gov. Andrew Cuomo. It has also meant a revival of the tension between dispersed decision-making and concentrated authority. With Americans pulling away from each other into opposing camps, the time is ripe for breaking centralized control over our lives.

This week, the Democratic governors of Connecticut, Delaware, New Jersey, New York, Pennsylvania, and Rhode Island announced the creation of a “multi-state council” intended “to develop a fully integrated regional framework to gradually lift the states’ stay at home orders while minimizing the risk of increased spread of the virus.”

Simultaneously, the governors of California, Oregon, and Washington – also all Democrats – proclaimed a “Western States Pact” based on “a shared vision for reopening their economies and controlling COVID-19 into the future.”

Both groupings emphasize public health considerations over restarting the lockdown-crippled economy. They object to the president’s push for reopening businesses and getting Americans back to work.

In response, Trump insisted that he has “total authority” over decisions about when life should get back to normal. That’s a patently false claim that he had to walk back. We may be accustomed to the federal government exercising near-absolute power, but the Constitution reserves most tasks for the states, no matter what they’ve willingly surrendered over the years.

The battle we’re watching isn’t a principled dispute over federalism and the Constitution. Nothing converts Democrats into fans of state power like Republican control of the White House, and it’s exactly that control that makes Republicans into cheerleaders for the federal government. Their positions will reverse just as soon as the major parties’ fortunes do. Given the deep partisan polarization in the U.S., which has seen Republicans and Democrats come to not just oppose but actually hate each other, change in control of Congress or the White House is just a recipe for flipping the script. Republicans and Democrats may trade places, but half the country will continue to resist whatever is happening in Washington, D.C.

This also isn’t a contest between heroes and villains.

Trump is right to worry about the implications of a national suspension of economic activity to slow the spread of COVID-19. But he’s also turned televised pandemic briefings into opportunities to rant about his political enemies and berate members of the press. And, under his watch, the federal government hijacks shipments of medical supplies ordered by hospitals.

Likewise, governors justifiably fret over the pandemic’s lethal impact on densely populated urban areas in their states. But Cuomo’s threat to send the National Guard to steal ventilators from upstate hospitals looked very much like an exercise in rewarding the New York City residents who vote for him at the expense of voters elsewhere who don’t. And many of the restrictions imposed by state officials responding to COVID-19 are nothing less than intrusive and bizarre.

Besides, if Trump lacks the authority to open and close the economy at will, it’s not clear that governors possess it, either.

“Americans should know that ample legal precedents suggest that most shelter in place orders are unlawful and unconstitutional,” Robert E. Wright, professor of political economy at Augustana University, wrote for the American Institute for Economic Research. He points to a history of quarantine orders much more limited in scope than what we’ve seen this year.

But if we’re going to have bad policy, better to have it imposed at the state and local level than by the feds. Then, it can be compared to differing approaches elsewhere. It can also be evaded if necessary, the way Pennsylvanians poured across the state line to make purchases in neighboring communities after their government monopoly liquor stores closed as part of the pandemic response.

Truthfully, governors rediscovering the pleasures of state power likely have more on their minds than the “laboratories of democracy” that U.S. Supreme Court Justice Louis Brandeis described in his discussion of federalism and policy experiments. The partisan divide built into the revolt of the coastal states’ alliances against federal power makes their efforts look like yet another salvo in the increasingly nasty political warfare that has engulfed the country in recent years.

Gov. Gavin Newsom, for his part, has the habit of referring to California as a “nation-state.” That raises questions about just how far he plans to take his assertion of independence from federal policy set by Trump and Republicans.

But if Newsom and company have learned to enjoy going their own way, they might want to remember that it doesn’t have to stop at the state level. Protests against strict lockdown rules in Michigan, North Carolina, and Ohio make it clear that shifting power from the federal governments to the states doesn’t eliminate disagreement and resistance. Officials in some places—including county sheriffs in Idaho and Michigan—refuse to enforce at least parts of state stay-at-home orders that they consider unconstitutional and violations of civil liberties.

“In the spirit of liberty and the Constitution, you can request those of us that are sick to stay home, but, at the same time, you must release the rest of us to go on with our normal business,” Sheriff Daryl Wheeler of Idaho’s Bonner County wrote to Idaho Gov. Brad Little.

If states dissent from federal policy and try to pursue a different approach, localities certainly feel justified in doing the same. And if local policies rub individuals the wrong way, you can expect plenty of people to insist on making their own decisions for themselves.

And why not? Decentralized decision-making doesn’t guarantee better results than the centralized kind, but it affects and offends fewer people. It allows greater respect for people’s varying circumstances and their different tolerances for risk.

Of course, the same can be said about all sorts of decisions that are traditionally left to the powers-that-be to impose one-size-fits-all mandates that end up fitting very few. If we can break the habit of deferring to centralized authority, we may find that we like making our own choices.

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“Sweden’s suffering very, very badly” according to President Donald Trump. Nope, says Denmark’s former Prime Minister Lars Løkke Rasmussen, who suggested April 7 that Denmark should have followed the cautious Swedish way of responding to COVID-19.

Views diverge on Sweden’s unique strategy of not closing borders and shutting down schools, workplaces, restaurants, libraries, gyms and shopping centers. The Swedish government has declared no state of emergency and no orders to shelter in place. Young Swedes are even encouraged to continue with their sports training and events.

Some Brits think that we Swedes are crazy, The Spectator‘s Fraser Nelson told Swedish radio last week, but added that other Brits admire how the Swedish people have largely followed scientific advice—no mandatory lockdown needed.

One reason why some believe Sweden is a disaster zone while others see it as a role model is that currently available data can be interpreted many different ways. 

For example, the number of deaths as a share of total cases is a useless statistic, since countries have completely different testing regimes. It is at best an indication of a country’s testing capacity and how many people with more mild cases are being tested—an area where Sweden has not impressed. 

Those who want to show how great Sweden is doing have produced charts comparing us to countries like Britain, Belgium, France, Spain, and Italy. Those who want to prove the opposite replace those countries with Norway, Denmark, and Finland, all of which have fewer deaths. 

If you want Sweden to look bad, compare it to the U.S. as a whole—120 deaths per million in Sweden vs. 94 in the U.S. according to Our World in Data’s April 16 numbers. If you want Sweden to look good, compare it to New York state, which is at a more similar stage to us in the virus’s spread—120 vs. 580.

The truth is that Sweden is somewhere in the European middle when it comes to deaths per capita, which in itself is interesting. We are outliers in terms of policy, but not in terms of outcomes. 

There are also reasons to think that Sweden is doing better than these comparisons suggest. Many countries don’t count COVID-19 deaths outside of hospitals. When people die at home, in nursing homes, or in prisons, they don’t show up in the coronavirus death count. 

In the Stockholm region of Sweden, 42 percent of deaths took place in nursing homes for the elderly. In many countries, and some U.S. states, those deaths would not show up in the data. 

This has a major effect on where you are compared to other countries. According to Johns Hopkins University, Belgium has twice as many COVID-19 deaths per capita as the Netherlands. But in Belgium, almost half of those deaths are from nursing homes, while testing is more rare in Dutch nursing homes so fewer deaths there are attributed to the disease.

After France started to include nursing homes in the statistics, the total number of French COVID-19 deaths jumped by almost a third.

While some Swedish regions have also underreported nursing home deaths, there are good reasons to believe we count deaths more accurately than many other countries. Sweden is a statistics powerhouse—we have had a disturbingly nosy government long before countries like the United States even existed. Every Swede has a 10-digit personal number. It is similar to a Social Security number, but it’s mandatory and we have to identify ourselves with this number, validated by an ID card, during every contact with authorities and doctors. 

There are obvious downsides to having the government make lists and find out who’s naughty and nice, but in the present context, one benefit is that we know with good confidence who has died.

During the present pandemic, Sweden systematically checks the list of people who have tested positive for the virus against the population register. Every time the government discovers that someone who had the virus has died, that person is registered as a COVID-19 death if it happened within 30 days of the diagnosis—even if the cause of death was cancer or a heart attack. 

It means that Sweden reports the number of people who die with COVID-19, not of COVID-19.

Even in a culturally and geographically similar country like Norway—celebrated for its low death rate—they do things differently. The Norwegians only count something as a COVID-19 death if a doctor concludes that someone was killed by the disease and decides to report it to the country’s public health authority. 

This means that we have to wait a long time for more detailed data on deaths and specifically excess deaths—those who would not have died from something else close in time—before we proclaim victory or defeat.

No matter how we count, though, I assume that Sweden has had more COVID-19 deaths per capita than our Nordic neighbors. But that is an obvious result of those countries’ decisions to postpone cases and deaths by locking down whole societies for a period of time. The thing to watch is what happens when they begin to open up again and will face a new wave of COVID-19. No government can keep people locked up until we have a vaccine, and most are now loosening restrictions.

A Harvard model projects that a 60 percent suppression of the disease will result in a higher peak later on and a higher number of total deaths than a mitigation strategy like the one Sweden used, where the spread is reduced by no more than 20 or 40 percent, so that the disease can pass through the population to create herd immunity during a period when the vulnerable are protected. Other models come to other conclusions, depending on what you put into them, of course. We just don’t know yet, and only time will tell. Herd immunity might yet beat herd mentality.

Sweden’s strategy would have been considered a failure if it had resulted in a peak of cases so high that the health care system had become overwhelmed and people who could have otherwise been saved died from lack of care. We are nowhere close to the end of this, but the models and pundits that predicted this outcome happening as early as late March were wrong. 

The Swedes who have died from the coronavirus did not die due to lack of hospital beds or ventilators. Thanks to a rapid increase in intensive care unit capacity, 20 percent of Sweden’s ICUs are unoccupied. Stockholm has built a new field hospital, already equipped to receive hundreds of COVID-19 patients, including 30 ICU beds. So far it has not had to open. The average age of the dead has been 81, which is close to our average life expectancy. 

And it seems like the disease is now slowing down in Sweden, not speeding up. The number of COVID-19 patients newly admitted to the ICU has been relatively stable since March 23, and since people are also getting better and leaving the hospital, the total number of patients in ICU treatment is declining somewhat, at least for the moment. 

The number of deaths in Sweden has been in slight decline for more than a week. We must be extremely careful in interpreting such recent trends, but at least it is far from the exponential increase many feared. 

Why has Sweden done so much better than many predicted? Because others failed to see that society could respond voluntarily to the pandemic. For example, the influential Imperial College model estimates a higher reproduction rate of the disease in Sweden than in other countries, “not because the mortality trends are significantly different from any other country, but as an artefact of our model…because no full lockdown has been ordered.”

In other words, the model could only handle two scenarios: an enforced national lockdown or zero change in behavior. It had no way of computing Swedes who decided to socially distance voluntarily. But we did. You have probably seen pictures of crazy Swedes in crowded restaurants, defying sanity and the international consensus, but chances are you saw the same pictures of the same restaurants at that particular evening when it was indeed crowded—had the camera pointed toward a different part of the same restaurant, it would have shown many empty tables. Swedes, though imperfect, have generally done a good job of voluntarily self-isolating.

Swedes have reduced their mobility substantially, even without police enforcement. For example, cell phone data shows that the inhabitants of Stockholm reduced their trips to the most popular Swedish holiday destinations during Easter by around 90 percent.

This means that our economy still hurts despite more liberal policies (even apart from the fact that export-dependent Swedes suffer from lockdowns in other places). We are not going to shops and restaurants like we used to. But losing two-thirds of your revenue rather than 100 percent might mean the difference between life and death for many entrepreneurs. 

We are nowhere close to the end of the pandemic. Perhaps Sweden will do worse long term, and then we’ll have some serious self-examination ahead. Or perhaps Sweden is the one place that is succeeding in limiting long-term damage, caring for the sick, and protecting the vulnerable, all while working toward herd immunity.

We don’t know whether the Swedish model is better or worse yet. What we do know is that Sweden has not cracked down on basic liberties like others have, and has not wrecked society and the economy to the same extent. 

As Hippocrates might have put it, “First, do no harm.”

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