Politicians' Deliberate Lies about Health Issues Present Tough Cases for Lovers of Free Speech

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.

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[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

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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

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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. ]