Am I hypocritical in my
relief
that Facebook,
Twitter, and the like are banning dangerous misinformation about the
pandemic, vaccines,
and the idea that China
or a dead Venezuelan dictator helped Joe Biden steal the U.S.
Presidency?
Free
speech has always been a cause close to my heart. I have vigorously
exercised that right to express highly unpopular points of view, some
of which later became popular.
Legally,
that
right protects us from
government interference or censorship. Newspapers, radio and
TV, and cybermedia are
not governments. Yet
they’re where political speech happens most.
There was a line of
Supreme Court cases forcing shopping centers, being almost public
thoroughfares, to allow protests; conservative justices erased it
when they gained control. Trumpists
might regret that.
I
don’t like
governments controlling
speech;
but I’m not wild
about plutocrats doing so either. Yet
I was relieved that Facebook put a sock in Donald Trump’s mouth.
(I hope it was one Megan
Rapinoe wore
winning the World Cup.) I’m tired of Mr. Trump. His
tweeting is part of a well-funded campaign to destroy what we have of
democracy. People believe him, and even sacked
the U.S. Capitol and
assaulted Congress
for him.
(Assault
is the crime of putting someone in reasonable fear for his or her
life or safety.)
Trump
is a danger to our democracy. But abridging free speech, except in
extremely narrow confines, is also a danger to our democracy. It’s
like newspapers omitting nutty or extremely rude letters to the
editor; but Facebook is no town newspaper. For better or for worse,
it reaches millions in nanoseconds.
Republicans
in states that are (or soon will be) “swing states” are trying to
legislate their way out of democratic elections. They want to make
voting harder for folks, particularly poor and nonwhite folks, but
(in case that’s not sufficient) also give themselves the right,
essentially, to overrule elections. In 2024, if the people reject
whatever Trump imitator the Republicans nominate, and the defeated
candidate demands as Trump did, that officials overturn the vote,
Republicans in key states could do so. I’d want to join Bernie
Sanders in protesting loudly. What if Facebook banned posts
questioning the sanctity of the new non-elections?
Health
matters present a tough case. When influential folks (like the
Governors of Florida and Texas) purvey vaccination misinformation,
they are killing people. Or helping COVID-19 do so. (It ain’t
coincidence that Florida and Texas are now experiencing disastrous
COVID-19 contagion, while their cities and counties break the rules
or sue the state.) Could we see a wrongful death lawsuit against
cybermedia for publishing vaccine/mask disinformation? Causation
would be tough to prove.
Clearly, the misinformers are making a political argument.
Expressed more honestly than they usually put it, they say that
instead of sacrificing so much to protect human life, we should act
freely, in pursuit of the Almighty Dollar (and political power), and
let hospitals get overcrowded and people die, because the fittest
will survive. (There’s no Constitutional right not to be
vaccinated if so ordered. See Jacobson v Massachusetts.)
I
believe generally in following the law. I’ve also studied Barack
Obama’s authorization and direction of a mission to kill a foreign
national on another nation’s soil; and while I recognize he
probably violated international law, I applaud him and those troops.
Similarly,
I’m glad we’re no longer bombarded with Donald’s attacks on our
democracy, but I’m uneasy.
- 30 -
[The
above column appeared this morning, Sunday, 15
August
2021,
in the Las Cruces Sun-News, as well as on
the newspaper's website
and KRWG's website. A related radio commentary will air during the
week on KRWG (90.7
FM)
and
KTAL-LP.
(101.5
FM
–
http://www.lccommunityradio.org/),
and will
presently
be
available on demand on KRWG’s site.]
[I
mentioned Jacobson
v Massachusetts,
which
has been relied on by court’s during the pandemic.
You can read that case at
https://supreme.justia.com/cases/federal/us/197/11/
.
The
facts of Jacobson
were straightforward: confronted
by smallpox, Massachusetts enacted a law allowing County Boards of
Health to impose mandatorty vaccination; under that authority,
Cambridge enacted such an ordinance, requiring everyone 21 or older
to submit to vaccination; in 1902, Jacobson was 21 or older, and refused,
which resulted in a criminal conviction (and $5.00 fine) which the
Massachusetts Supreme Judicial Court upheld. The U.S. Supreme Court
also upheld the law and ordinance.
Meanwhile,
so far, judicial
decisions
on the startling contemporary situation (in
which governors
of Texas, Arkansas (though Governor Hutchison has honorably
apologized for signing the law after witnessing the resulting
emergency), Oklahoma,
and Florida have
signed
laws forbidding counties, municipalities, and even private concerns
from requiring vaccination as a condition of service or of continued
employment, and local governments challenging those laws in the
courts)
have
resulted in preliminary orders suspending effectiveness of the state
laws pending a final decision. Notably, Supreme Court Justice Amy
Coney
Barrett
(the Supreme Court Justice who initially hears emergency stay
requests in the geographic area that includes Indiana) denied
emergency
relief
to eight students challenging University of Indiana’s order that
students must be vaccinated to attend fall classes in person, without
referring the request to the full Court.
That’s a good sign. (Such orders require no written decision, and
this one was announced by a spokesperson for the Supreme Court.A)
After
rejecting the view that vaccination somehow violated “the spirit of
the Constitution” or its Preamble, the Court (in an opinion written
by Justice Harlan), stated:
We
come, then, to inquire whether any right given or secured by the
Constitution is invaded by the statute as interpreted. . . . The
defendant insists that his liberty is invaded when the State subjects
him to fine or imprisonment for neglecting or refusing to submit to
vaccination; that a compulsory vaccination law is unreasonable,
arbitrary and oppressive, and, therefore, hostile to the inherent
right of every freeman to care for his own body and health in such
way as to him seems best, and that the execution of such a law
against one who objects to vaccination, no matter for what reason, is
nothing short of an assault upon his person. But the liberty
secured by the Constitution of the United States to every person
within its jurisdiction does not import an absolute right in each
person to be, at all times and in all circumstances, wholly freed
from restraint. There are manifold restraints to which every
person is necessarily subject for the common good. On any other
basis, organized society could not exist with safety to its members.
Society based on the rule that each one is a law unto himself would
soon be confronted with disorder and anarchy. Real liberty for all
could not exist under the operation of a principle which recognizes
the right of each individual person to use his own, whether in
respect of his person or his property, regardless of the injury that
may be done to others. This court has more than once recognized
it as a fundamental principle that
"persons
and property are subjected to all kinds of restraints and burdens, in
order to secure the general comfort, health, and prosperity of the
State, of the perfect right of the legislature to do which no
question ever was, or upon acknowledged general principles ever can
be, made so far as natural persons are concerned."
Railroad
Co. v. Husen, 95
U. S. 465, 95
U. S. 471; Missouri,
Kansas & Texas Ry. Co. v. Haber, 169
U. S. 613, 169
U. S. 628, 169
U. S. 629; Thorpe
v. Rutland & Burlington R.R., 27
Vermont 140, 148. In Crowley
v. Christensen, 137
U. S. 86, 137
U. S. 89,
we said:
"The
possession and enjoyment of all rights are subject to such reasonable
conditions as may be deemed by the governing authority of the country
essential to the safety, health, peace, good order and morals of the
community. Even liberty
Page
197 U. S. 27
itself,
the greatest of all rights, is not unrestricted license to act
according to one's own will. It is only freedom from restraint under
conditions essential to the equal enjoyment of the same right by
others. It is then liberty regulated by law."
In
the constitution of Massachusetts adopted in 1780, it was laid down
as a fundamental principle of the social compact that the whole
people covenants with each citizen, and each citizen with the whole
people, that all shall be governed by certain laws for "the
common good," and that government is instituted
"for
the common good, for the protection, safety, prosperity and happiness
of the people, and not for the profit, honor or private interests of
anyone man, family or class of men."
The
good and welfare of the Commonwealth, of which the legislature is
primarily the judge, is the basis on which the police power rests in
Massachusetts. Commonwealth
v. Alger, 7
Cush. 53, 84.
Applying
these principles to the present case, it is to be observed that the
legislature of Massachusetts required the inhabitants of a city or
town to be vaccinated only when, in the opinion of the Board of
Health, that was necessary for the public health or the public
safety. The authority to determine for all what ought to be done in
such an emergency must have been lodged somewhere or in some body,
and surely it was appropriate for the legislature to refer that
question, in the first instance, to a Board of Health, composed of
persons residing in the locality affected and appointed, presumably,
because of their fitness to determine such questions. To invest such
a body with authority over such matters was not an unusual nor an
unreasonable or arbitrary requirement. Upon the principle of
self-defense, of paramount necessity, a community has the right to
protect itself against an epidemic of disease which threatens the
safety of its members. It is to be observed that, when the regulation
in question was adopted, smallpox, according to the recitals in the
regulation adopted by the Board of Health, was prevalent to some
extent in the city of Cambridge, and the disease was increasing. If
such was
Page
197 U. S. 28
the
situation -- and nothing is asserted or appears in the record to the
contrary -- if we are to attach any value whatever to the knowledge
which, it is safe to affirm, is common to all civilized peoples
touching smallpox and the methods most usually employed to eradicate
that disease, it cannot be adjudged that the present regulation of
the Board of Health was not necessary in order to protect the public
health and secure the public safety. Smallpox being prevalent and
increasing at Cambridge, the court would usurp the functions of
another branch of government if it adjudged, as matter of law, that
the mode adopted under the sanction of the State, to protect the
people at large was arbitrary and not justified by the necessities of
the case. We say necessities of the case because it might be that an
acknowledged power of a local community to protect itself against an
epidemic threatening the safety of all, might be exercised in
particular circumstances and in reference to particular persons in
such an arbitrary, unreasonable manner, or might go so far beyond
what was reasonably required for the safety of the public, as to
authorize or compel the courts to interfere for the protection of
such persons. Wisconsin
&c. R.R. Co. v. Jacobson, 179
U. S. 27, 179
U. S. 301;
1 Dillon Mun. Corp., 4th ed.,§§ 319 to 325, and authorities in
notes; Freund's Police Power, § 63 et
seq. In Railroad
Company v. Husen, 95
U. S. 465, 95
U. S. 471-473,
this court recognized the right of a State to pass sanitary laws,
laws for the protection of life, liberty, heath or property within
its limits, laws to prevent persons and animals suffering under
contagious or infectious diseases, or convicts, from coming within
its borders. But as the laws there involved went beyond the necessity
of the case and under the guise of exerting a police power invaded
the domain of Federal authority, and violated rights secured by the
Constitution, this court deemed it to be its duty to hold such laws
invalid. If the mode adopted by the Commonwealth of Massachusetts for
the protection of its local communities against smallpox proved to be
distressing, inconvenient or objectionable to some -- if nothing more
could be reasonably
Page
197 U. S. 29
affirmed
of the statute in question -- the answer is that it
was the duty of the constituted authorities primarily to keep in view
the welfare, comfort and safety of the many, and not permit the
interests of the many to be subordinated to the wishes or convenience
of the few.
There is, of course, a sphere within which the individual may assert
the supremacy of his own will and rightfully dispute the authority of
any human government, especially of any free government existing
under a written constitution, to interfere with the exercise of that
will. But it is equally true that, in every well ordered society
charged with the duty of conserving the safety of its members the
rights of the individual in respect of his liberty may at times,
under the pressure of great dangers, be subjected to such restraint,
to be enforced by reasonable regulations, as the safety of the
general public may demand. An American citizen, arriving at an
American port on a vessel in which, during the voyage, there had been
cases of yellow fever or Asiatic cholera, although apparently free
from disease himself, may yet, in some circumstances, be held in
quarantine against his will on board of such vessel or in a
quarantine station until it be ascertained by inspection, conducted
with due diligence, that the danger of the spread of the disease
among the community at large has disappeared. The liberty secured by
the Fourteenth Amendment, this court has said, consists, in part, in
the right of a person "to live and work where he will," Allgeyer
v. Louisiana, 165
U. S. 578,
and yet he may be compelled, by force if need be, against his will
and without regard to his personal wishes or his pecuniary interests,
or even his religious or political convictions, to take his place in
the ranks of the army of his country and risk the chance of being
shot down in its defense. It is not, therefore, true that the power
of the public to guard itself against imminent danger depends in
every case involving the control of one's body upon his willingness
to submit to reasonable regulations established by the constituted
authorities, under the
Page
197 U. S. 30
sanction
of the State, for the purpose of protecting the public collectively
against such danger.
The
decision was published in 1905. The vote was
7-2.
You can read the full opinion at
https://supreme.justia.com/cases/federal/us/197/11/
. The
Court considered the fact that Jacobson and others, including a few
experts thought vaccination ineffective or even dangerous, and
stated:
Since,
then, vaccination, as a means of protecting a community against
smallpox, finds strong support in the experience of this and other
countries, no court, much less a jury, is justified in disregarding
the action of the legislature simply because, in its or their
opinion, that particular method was -- perhaps or possibly -- not the
best either for children or adults.
]
