Does freedom of speech protect misinformation about COVID-19 vaccine?
Does freedom of speech protect misinformation about COVID-19 vaccine?

Does freedom of speech protect misinformation about COVID-19 vaccine?

We all know or have heard of someone who has refused to get a COVID-19 vaccine. While some individuals have medical or religious reasons to avoid vaccination, there are for some other factors that influence their decision. Despite the importance of vaccines for public health – and the serious risk associated with being unvaccinated – getting the shot can feel like a betrayal of certain political beliefs.

But where does this feeling come from? Throughout the pandemic, some politicians and other influencers have promoted advice that is not based on scientific data – sometimes it is with good intentions, other times it is deliberately misleading. But the result is the same: misinformation.

This led Michelle MelloJD, PhD, en Stanford Medicine Professor of Health Policy and Stanford Law professor, to dig into issues surrounding this issue.

While some might say that the production or dissemination of known false statements related to the vaccine should be criminalized, the first amendment, which guarantees freedom of expression, continues to provide protection to persons who publish such erroneous information. So how can the spread of misinformation be stopped without abolishing freedom of expression?

I spoke to Mello and asked her to comment on the Supreme Court’s views on vaccine misinformation – an issue she addressed in a recent View piece in JAMA Health Forum. The following questions and answers have been edited and compressed.

Several countries have criminalized misinformation about vaccines, but the United States has not. Has the Supreme Court’s interpretation of the first amendment allowed the continued spread of false allegations?

The Supreme Court has ruled that many kinds of false statements are protected speech under the First Amendment. In a case from 2012 called USA v Alvarez, the Supreme Court struck down a law that made it a criminal offense to lie about having received military medals. It refused to claim that the falsity of a statement put it outside the protection of the First Amendment.

But there are some forms of false speech that can be punished by the government, including lying in court, making false statements to the government, pretending to be an official, slandering someone and committing commercial fraud. But that’s a pretty limited list. The Supreme Court’s general conclusion is that false statements can often be valuable in allowing people to challenge widespread beliefs without fear of consequences, and that things could go quite wrong if the government had a broader quay to regulate them.

What risks would be involved in allowing the government to politicize false allegations?

One problem is that we may not all agree on how demonstrably false something must be in order for it to be limited. For vaccine risks, for example, some claims of health damage have been convincingly refuted, while others have simply not been investigated. So if I claim that a vaccine was the reason my hair fell out, is that so fake or just not provably true? Should the difference matter?

A related problem is that for some claims, especially scientific ones, the knowledge base that makes a statement true or false evolves over time. To complicate matters further, some people who spread false statements know that they are lying, while others think they are true. Finally, many people just do not trust that the government is not abusing the power to declare any false speech.

All of these challenges mean that the Supreme Court is wary of restricting speech that may ultimately prove to be truthful, or at least contribute to public debate that helps discover the truth. The Supreme Court would prefer to let the decision of what is true hash out of the “marketplace of ideas.”

But the interesting thing is that these problems also apply to areas where the courts allow the regulation of false statements. Legislators have found ways to address them, such as requiring the government to prove certain things about the statement or the state of mind of the speaker. It is therefore not clear why the Supreme Court draws the lines it does.

How does our reverence for freedom of speech in the United States intensify our vulnerability to threats to public health?

It limits our policy tools. Instead of limiting misinformation on health issues, the government is directed to try to combat it with talk. Although the idea that conflicting ideas will turn up the best ideas appeals to judges, it does not always succeed in practice. In particular, people’s false beliefs due to misinformation about vaccines are extremely difficult to change.

First Amendment protection also makes it difficult for the government to do things like requiring health risk warnings. For example, the Food and Drug Administration fought for years in legal battles over its initiative to require cigarette manufacturers to put image warning labels on cigarette packets, with the industry claiming the requirement constituted forced expression in violation of freedom of expression. The city of San Francisco had similar problems when it tried to require beverage companies to put warnings on their billboard ads about the link between consumption of sugary drinks and obesity.

What is the broader impact of taking medical advice from non-medical professionals who may have an agenda that is not based on science or medicine?

Many people – including some doctors – have made it harder for Americans to understand how to protect themselves during the pandemic by filling the information space with non-evidence-based claims.

It can be difficult for people to distinguish between reliable and unreliable sources of information, especially about a new health threat, and especially when unreliable information is disseminated by people who seem credible because of their professional role.

In the case of COVID-19 vaccines, misinformation has led as many as 12 million Americans to forgo vaccination, resulting in a estimated 1,200 excess hospitalizations and 300 deaths a day, according to Johns Hopkins’ Center for Health Security.

What are the implications of the continued politicization of the COVID-19 pandemic on our ability to make public health decisions?

Often, when a topic is politicized, people see messages from the group they do not identify with as suspicious and messages from the group they identify with as credible – no matter how well the messages match the evidence. If we can not make sensible decisions about how we interact with information, we can not make sensible decisions about health.

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