Michelle Mello, writing in the JAMA Health Forum, is frustrated that the Supreme Court considers vaccine disinformation to be protected under the first amendment.
As many as 12 million persons may have forgone COVID-19 vaccination in the US because of misinformation, resulting in an estimated 1200 excess hospitalizations and 300 deaths per day. If 5 fully loaded 747s crashed each week due to wrong information, regulators would be apoplectic.
She points out that there are many circumstances in which potentially harmful falsehoods can be policed. This includes advertising -- an ad claiming that Ivermectin is safe and effective against Covid-19 can and would be banned. State medical licensing boards can suspend the licenses of physicians who convey false information to their patients. However, these same people can go on Faux news and make the same claims, and there is nothing to be done except to rebut them.
While Mello seems to want the court to allow policing of harmful falsehoods, there are difficulties. Someone has to decide that a claim is indeed objectively false, and sufficiently harmful that it should be banned from public discourse. I can see why the courts are reluctant to allow this. Scientific conclusions can change with new evidence, and may have varying degrees of uncertainty in the first place. People who make false assertions may believe what they are saying and again, some regulatory authority has to conclude that their reasoning is unsound.
However, it occurs to me, although she does not mention it, that the possibility of civil litigation might be entertained. If someone's relative died of Covid-19, and the person refused to be vaccinated because of the ravings of a TV personality, the bereaved party might have grounds for a lawsuit, it seems to me. That would allow the claims to be adjudicated and evaluated by a judge or jury. I don't see why people don't try it.
Also, too, Pfizer and Moderna could sue for defamation. Sandy Hook parents sued Alex Jones and they won. Dominion Voting Systems sued Faux News and Faux stopped lying about them. Hillary Clinton threatened to sue Faux News and they stopped lying about her. It works!
1 comment:
Your last two posts, while excellant and important in themselves, rasised a question that has been bugging me for some time: Can someone be sued for something that probably caused an injury or death but can't provably be shown to be the actual cause? Since folks who have been vaccinated for Covid-19 sometimes do indeed die from the disease, must you show that your relative would have lived had he or she been vaccinated?
This may be a settled issue, but I haven't been able to phrase a question to Google in a way that gets me close to finding a site that addresses it. The discussions I have read seem to focus on finding some plausible concrete link between harm to plaintiff and actions of defendant, not just a statistical one.
So, if vaccination improves survival odds by, say 90%, could survivors of 100 Covid-19 victims who had refused vaccination due to actions of the defendant claim that it is statistically impossible that fewer than 50 of them would still be alive had they all been vaccinated? The court could then rule that defendant was responsible for at least 50 deaths even though it couldn't say which 50. The damages assessed would have to be split 100 ways. I realize that this example has major problems due to things like selection bias, but the defendant has certainly caused real harm and should be held at least somewhat accountable for that damage. I'm not a statistician, and I don't even play one on TV, but a real one should be able to frame an argument that no reasonable person would reject - if they knew a little math.
Is that a problem?
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