A Pox on the First Amendment

holmes 0319
Oliver Wendell Holmes Jr.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Here’s a sticky wicket for you: is it okay to spread misinformation about vaccines when there is a public health crisis?

Yesterday, between reports on weather-caused calamity, the news also featured pushback from the “anti-vaxxers” who believe their content is being censored on platforms such as Facebook and Google. They may have good cause to believe this: Rep. Adam Schiff (D-California) sent a letter to these companies and at least one other (ah, memory) that appears to strongly encourage them to stop being complicit in spreading misinformation about vaccines.

It does seem clear it is, indeed, misinformation. The scientific community, a body whose work we generally these days tend to regard with derision and doubt, has stated categorically and in unison that vaccines are safe and lead to the common good. According to CBS This Morning yesterday (that’s not confusing at all), government officials are also in lockstep on this issue: 100 percent certainty that vaccines do not cause harm.

And, although CBS only aired one anti-vaxxer’s input, it almost seemed as if she was acknowledging that she is spreading misinformation. I don’t recall her name, of course, but she’s the producer of an anti-vaccine film that she says is now being suppressed on internet platforms. But this is what she said in her defense: “If I want to tell people that climbing mountains causes cancer, I should be able to do that.” Clearly, she doesn’t believe climbers are cancer-ridden, which makes me wonder how much she believes her anti-vaccination statements.

But she certainly believes in her First Amendment right to free speech, and CBS asked Congressman Schiff about this. He thinks that preventing a public health crisis justifies asking big internet companies to tamp down their anti-vaccine content.

Does it really?

I spent more research time on this than usual, maybe even an entire half-hour (although I did get sidetracked a lot, even if it wasn’t the Encyclopedia Brittanica), and it turns out, while Supreme Court Justice Oliver Wendell Holmes Jr. did use the “can’t shout ‘fire’ in a crowded theatre” analogy, this World War I-era decision is widely decried in legal circles as a travesty and was overturned 40 years later. It seems that you can shout “fire” in a theatre, although you may find yourself liable if people get injured in any ensuing melee. Unless, of course, there really is a fire. Then you’re probably absolved.

The case that went before Holmes and his fellow jurists had nothing to do with fires or public gathering places, but with a socialist who was peacefully protesting a wartime draft via a printed pamphlet. It was a broad overreach by the court, and that was remedied a mere four decades later. Who says justice doesn’t move swiftly?

Americans use their “freedom of speech” to incite all manner of harmful activities (think about it: have you suggested out loud that some sort of harm should befall one of our two most recent presidents?), so I kind of think Congressman Schiff is on shaky ground.

The Atlantic article where I picked up a lot of my information this morning was written in 2012 and it felt sure that a “counterbalance” of more free speech will always bring about the Truth. But now it’s 2019, and I’m not so sure that still the case. A Washington Post article from today talks about the scientific (there go those scientists again) study a large medical clinic undertook after anti-vaxxers flooded their social media in an orchestrated attack after the clinic posted a short video encouraging parents to bring their kids to the clinic to be vaccinated against HPV.

It was an ad for a service the clinic offered, not a crusade, but the “other side” waged nothing short of a holy war against the clinic for daring to suggest that a vaccine might be helpful.

I am vaccinated, although I resisted getting a flu shot until two years ago, and I regularly breakfast with a public health nurse and a biologist who are firmly convinced vaccines are necessary and the antithesis of public health menaces. As a student of history, I read about the ravages of diseases we have largely managed to forget about, thanks to vaccines. And I’m old enough to have known people who suffered throughout their lives because of a childhood bout of polio.

There was a woman in town (if she’s still here, she’s gotten much quieter) who was fervently and vocally opposed to vaccinations. Wherever she is, I’m sure she believes with every fiber of her being that a vaccination is what caused her son’s autism.

[Just this morning, CBS aired the results of a preliminary study suggesting that pregnant women exposed to pesticides are at some higher risk of producing children with autism, and it makes me wonder if this woman has focused all her energy on the wrong enemy.]

This woman is, or was, anyway, on a mission, and that mission is to keep other kids from getting vaccinated. I’m sure she thinks she’s saving them. But when a measles outbreak spreads to a large number of states (including Colorado) and keeps spreading because the number of unvaccinated children has quadrupled — quadrupled! — since 2001, and kids are getting very sick, possibly dying, possibly facing a lifetime of ill effects from disease, and not a single scientist can prove a single case of causation between a vaccine and autism . . . well, I sympathize with Congressman Schiff.

But then there’s the First Amendment.

It’s operating today in a place I’m doubting the founders could have ever envisioned, and the enormous capacity of the internet to serve not only as an echo chamber but an amplifier could lead to places we’ve never imagined, including a return to mass outbreaks of diseases we believed to be virtually eradicated.

The “easy” answer, of course, would be an improvement in information literacy, but the chances of that happening are probably the same as me winning the lottery I’ve never purchased a ticket for. Or to just put down the Facebook and walk away, but that’s not going to happen either. Until some newer, more exciting platform comes along, but it’s going to serve the same function. Roses by any other name, and all that.

Other than that — and I’m not even among the group here in town that is really trying to push the concept of information literacy, focusing primarily on college students — I don’t have any answers, good or bad.

Censorship is not the way to go, but the ease and rapidity of the spread of misinformation ought to concern us all as we totter precariously forward into a Brave New World.

It is, indeed, a sticky wicket.

Fear not: tomorrow I will be back in regular form, probably with a Very Important Discussion concerning a swirl of color decisions.


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