When Public Health Is Eroded by Junk Science: Muzzling Anti-Vaxxer FEAR Speech - And the First Amendment

Abstract

The 2018-2019 measles epidemic was the worst the world (and the US) had seen in almost 30 years, manifesting in increased morbidity, mortality, hospitalizations, and public health expenditures. Public Health officials and legal scholars attribute the rise to the emergence of organized and well-funded anti-vax groups. These groups disseminate false, endangering and reckless propaganda (what I call FEAR speech) with the objective of fostering vaccine resistance. Pamphleteering and conferences/symposia sponsored by these groups have been blamed for successfully persuaded a vulnerable public that vaccination is dangerous. The World Health Organization lists these groups among the top five public health threats. This is the first article to document the influence of anti-vax activities in stoking the explosiveness of four recent virulent epidemics in the developed world (three in the US and Israel) by comparing the most recent epidemics with ones occurring within the last decade in the same locality and then propose a novel legal solution to address the anti-vax threat. While five states have legislatively removed non-medical exemptions to the nationally required pre-school vaccination, that number has stalled, suggesting rising vaccine resistance, and increasing vulnerability. I therefore propose that controlling FEAR speech would be the best method to foster vaccine compliance, noting that to do so would trespass on conventional first amendment protections. The article then suggests various means of overcoming constitutional restrictions before proposing a novel methodology to address this emerging concern: content-neutral legislation that would extend the Daubert standard of evaluating scientific assertions to those made in the public domain when the objective is to influence public conduct in a manner deleterious to the national health, safety, and security.