MISINFORMATIONDoes Free Speech Protect COVID-19 Vaccine Misinformation?
“The Supreme Court has held that many kinds of false statements are protected speech under the First Amendment,” says Stanford University’s Michelle Mello. “The Supreme Court’s general finding is that false statements can often be valuable in terms of allowing people to challenge widely held beliefs without fear of repercussions, and that things could go pretty wrong if the government had a wider berth to regulate them.”
We all know, or have heard about, someone who’s refused to get a COVID-19 vaccine. While some individuals have medical or religious reasons for avoiding vaccination, for some, other factors influence their decision. Despite the importance of vaccines for public health — and the serious risk associated with being unvaccinated — getting the shot may 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’s not based on scientific data — sometimes it’s with good intentions, other times it’s intentionally misleading. But the outcome is the same: misinformation.
This led Michelle Mello, JD, PhD, a Stanford Medicine professor of health policy and Stanford Law professor, to dig into questions that surround this issue.
While some might say making or spreading known false statements related to the vaccine should be criminalized, the First Amendment, which guarantees free speech, continues to provide protection for people who promulgate such faulty information. So, how can the spread of misinformation be stopped without quashing free speech?
I spoke with Mello and asked her to address the Supreme Court’s view on vaccine misinformation — an issue she addressed in a recent Viewpoint piece in JAMA Health Forum. The following Q&A has been edited and condensed.
Sharon Beckstrand: Several countries have criminalized vaccine misinformation, but the United States has not. Has the Supreme Court’s interpretation of the First Amendment allowed the continued spread of false claims?
Michelle Mello:The Supreme Court has held that many kinds of false statements are protected speech under the First Amendment. In a 2012 case called United States 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 hold that a statement’s falsity put it outside the realm of First Amendment protection.
But there are some kinds of false speech that can be penalized by the government, including lying in court, making false statements to the government, impersonating a government official, defaming someone and committing commercial fraud. But it’s a pretty limited list. The Supreme Court’s general finding is that false statements can often be valuable in terms of allowing people to challenge widely held beliefs without fear of repercussions, and that things could go pretty wrong if the government had a wider berth to regulate them.
