A month before her wedding Samantha Wendell, 29, a surgical technician, and her fiancé, Austin Eskew, 29, a correctional sergeant, came down with COVID-19. Eskew’s case was mild, and he recovered at home. Wendell's condition worsened and breathing became difficult. After a week, she went to the hospital. Doctors tried with limited success to stabilize her. On Aug. 16, five days before her wedding date, doctors put her on a ventilator. On Sep. 10, her family agreed with the doctors that her case was hopeless, and they took her off life support.
Initially, Wendell had rejected getting vaccinated because the Grand Rivers couple planned on having children. And when the CDC approved COVID-19 vaccines, some of Wendell’s co-workers said the shots caused infertility — an unfounded claim that has gained ground despite top reproductive health groups refuting it. Emotion clouded her thinking and she determined to avoid the vaccine.
She did not remain an anti-vaxxer. As deaths mounted from the delta variant of the disease, she and her fiancé booked vaccinations for the end of July. But catching COVID derailed that plan.
Wendell’s story is a tragic tale made worse by its needlessness. This healthy young woman — she had no underlying conditions — did not have to die. But, as her cousin Maria Vibandor Hayes, 39, said, ‘misinformation killed her.” This raises the question, should there be restrictions placed on speech that causes harm?
The most famous expression advocating that philosophy is Justice Oliver Wendell Holmes’ aphorism that,
"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
People promoting free speech restrictions frequently trot this out as justification for their position. They should not. Holmes offered his famous rationale in U.S. v. Schenck. A case in which SCOTUS decided that Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act (1917) for writing and distributing a pamphlet that expressed his opposition to the draft during World War I. This was despite the fact that the pamphlet did not call for violence or even civil disobedience.
It has been called one of the Supreme Court’s worst decisions. And it was essentially overturned in 1969 by the Brandenburg vs. Ohio decision, which limited restrictions to only speech that would incite “imminent lawless action”. American jurisprudence now favors broad protections for free speech. And even Holmes came to see Schenck for the abomination it was. He wrote in his dissent in Abrams vs the U.S. — another case involving the Espionage Act — that,
"The ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."
It is a noble sentiment — that truth will crowd out lies in the marketplace of ideas, and we will all be the better for it. But Holmes spoke from an ivory tower. And, like many isolated from the harsh truths of the ordinary citizen, he had no understanding how con-men, swindlers, and others looking to profit from lies have a genius at convincing the credulous of the solidity of pure wind (to paraphrase George Orwell*).
Based on that ugly truth, let us ask the question, should the law restrict the speech of liars? Specifically, speech that causes harm to others? Should Fox News be held accountable for its nightly tsunami of anti-vax fables and promotion of modern-day snake oil as a COVID cure? Should the religious leaders seducing their flocks into ill-considered health strategies face legal consequences? The answer is no. If nothing else, can you imagine what the GOP would do if handed that tool?
Perhaps private citizens could use existing laws. Already the law holds the media liable in defamation suits if a plaintiff proves they knowingly and wilfully told damaging lies. Maybe a creative lawyer could figure a way to hold them liable for spreading medical information they know to be both false and harmful. Fox, for instance, allows its prime-time prevaricators to peddle anti-vax nonsense while mandating vaccines for their employees.
Of course, right-wing media hosts are experts in skirting the law with tactics such as “I’m just asking questions”, “people say”, “I’m not saying don’t get the vaccine — but what about your freedoms?” However, maybe another imaginative lawyer could use a RICO strategy to target Fox’s executives. That legislation was originally intended to convict crime bosses even if they didn’t pull the metaphorical trigger.
Whatever legal remedies may present themselves, in the long term, schools need to do a better job of teaching critical thinking. In first grade, teachers teach the difference between fact and opinion — after which the typical curriculum never addresses critical thinking again. I do not know the point of teaching science, language, history, civics, and literature if at the end of the process the student has no clue how to process information.
We tend to think of anti-vaxxers and the vaccine-resistant as being tooth-challenged yokels, decked in MAGA paraphernalia, weeping into cheap beer about pernicious liberals cheating their glorious leader out of his God-given presidency — and some are. But others, supposedly better educated, have enthusiastically embraced the most absurd lies because they also lack the skills to be rational thinkers. And worse, they are blind to their limitations because of their faith in their mental acuity as demonstrated by their BA in communications from a mid-rank state school. Or even by an Ivy League law degree.
* ”Political language … is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.” — George Orwell