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The Free Speech B.S. is strong in this one…

Recently, Skepchick Elyse wrote about an anti-vaccine ad being played in Times Square in New York City, and started a worthy campaign to have the ad removed. In response, a counter petition has been proffered, claiming that CBS should run the ad “in honor of free speech and informed consent.”

I’m not a doctor, but I’m fairly sure that “informed consent” does not mean dangerous misrepresentations that could have very serious ramifications on the health of children. But I am a lawyer, and this issue has little or nothing to do with speech freedoms in the United States.

(But first, I have to say that this is by no means meant to be legal advice. If you have a legal problem, personally contact a lawyer for advice. Every case is different, so there is really no such thing as a standard legal question. Now, on to the show.)

A good place to start is to read the pertinent part of the First Amendment.

Congress shall make no law…abridging the freedom of speech…

This sounds pretty straight forward, but through 200+ years of case law it has taken on more shades of gray. For example, there are certain types of speech that are not considered “speech” for Constitutional law purposes (obscenity and defamation are some examples). In addition, the Supreme Court has determined that some actions constitute “speech,” due to the expressive nature of the conduct, like burning a flag. But conduct related to speech can be restricted if certain rules are followed, and regulation of content is almost never allowed.

This is really only scratching the surface of First Amendment law. However, all of it is moot in this situation. To see why, let’s look at the relevant part of the First Amendment again:

Congress shall make no law…abridging the freedom of speech…

Notice that the Constitution only bars Congress (and through the 14th Amendment, state governments as well) from passing a law that limits speech freedoms. Government action is necessary to implicate First Amendment protections. So if the federal government or the New York state government decreed that anti-vaccine ads can no longer be shown, this probably violates the First Amendment. It’s a perfect example of impermissible content discrimination.

But no one is advocating state interference here. The First Amendment does not prohibit citizens from petitioning for change (in fact, it protects an individual’s right to petition the government); it requires actual government action. The petition requesting that CBS – a private entity – halt the anti-vaccine ad are not in conflict with free speech principles. In fact, the petition is in perfect harmony with them.

In order to have a democratic government, more people need to be willing to voice concerns and work to have those concerns addressed. Representative government can only do so much. Here in the United States, we’ve collectively decided that there are certain things the government cannot do, or, at least, cannot do much of. Regulating speech falls in this category. In order to have orderly, lively debate, government should not impede the flow of information. But because the Constitution guarantees expansive speech freedoms, a robust civil society is required to make sure the truth in any debate wins out.

It is preferable to allow false or misleading information into the debate than to risk keeping good information out. This is why we put such a premium on the free exchange of ideas, and why we have such a visceral reaction to any whiff of censorship. The problem comes when one idea is clearly superior.

In the law, there is rarely a “right” answer. There is only a best argument. However, when it comes to whether or not to be vaccinated, there is a right answer. All the credible science says that vaccines are safe, effective and save lives, so airing a so-called PSA saying otherwise is simply dangerous.

So the question presented (as my legal writing teacher would say) is not whether petitioning CBS to stop airing the anti-vax ad violates principles of free speech. CBS can legally air – and, indeed, it has been airing – this ad. It is whether CBS has a social responsibility to stop. And this is a question for society, not the law.

As Skepchick Elyse pointed out in her post on the subject, anti-vax misinformation has caused several outbreaks of preventable, yet deadly diseases. Anti-vax organizations will argue that they are totally within their rights to produce misleading ads and have those ads aired. If that is correct, then pro-vaccine groups have the right to fight that misinformation tooth and nail. This is what we call a debate (even if it is a debate that science says we should not be having. Like evolution.)

Most people see free speech guarantees as an unmitigated good. But in reality, it’s a compromise. There is a lot of bad information floating around. Information needs an advocate. And that is all the CBS petition is doing. It is advocating for solid scientific information.

Of course, the anti-vaxxers will argue that this is precisely what they are trying to do. They are trying to advocate for their cause. Yes, they are. They claim to want to inform. They want to enter the public debate. Or, rather, create a debate on the foundation of faulty evidence.

What is sad is that the anti-vaxxers are using the cloak of free speech to hide the fact that they do not have a winning argument. Science is not on their side. Vaccines save lives, and do not cause autism spectrum disorders. Appealing to deeply held beliefs about the place of free expression in our society is the only way to make the argument seem credible. But in the end, it’s a question of social policy. Not Constitutional law.

Don’t forget to sign the petition. Do it! Do it now!

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Mindy

Mindy is an attorney and Managing Editor of Teen Skepchick. She hates the law and loves stars. You can follow her on Twitter and on Google+.

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28 Comments

  1. Wow.

    see, I’ve been wanting to point this out to the people who are saying that simply having a discussion about a picture (see previous thread) was censorship.

    To the people that say that any disagreement amounts to censorship, “You keep using that word. I do not think it means what you think it means.”

    Maybe we just have to add it to the growing list of words that people only vaguely understand but continue to advocate their ignorance.

  2. It drives me nuts that people think “Free Speech” is short for “Free Speech without consequences.” So yes, antivaxers can proclaim what they want, and if we mount a campaign to call them on their bullshit, that’s entirely appropriate.

  3. Ummm…can I say AWESOME! Thank you for the detailed dissection of the “free speech fallacy” (which ain’t a defined fallacy as far as I’m aware, but that’s what I’m gonna call it). You have the right to say anything you want, but that doesn’t mean that others must sit idly by while you say it, or argue or advertise your point for you.

    This argument could be made for other silly arguments our there, as you point out with the example of arguments against evolution. This is a great reference piece – thanks again.

  4. The worst have been people saying that they won’t say anything because they value free speech too much.

    WHAT?!

    1. You clearly don’t even value it enough to understand what that means.
    2. Free speech doesn’t mean the first person to talk gets to make everyone else shut up.
    3. Everything Mindy said.

    Thanks for writing this, Mindy! It’s driving me insane that allies won’t sign this petition because they think they’re interfering with “free speech” by doing so. I hope this changes minds.

    1. Thanks! It was my pleasure. If people really valued free speech they would speak up. That’s the whole point of the protection. It’s not a finite resource. It’s not going to run out. But every time you don’t speak up is a lost opportunity. It’s a shame that there is this type of misplaced deference.

  5. Lawyers and politicians have done a good job ‘defining’ what is and isn’t free speech, and personally it and Mindy’s explanation of free speech stinks. The framers of the constitution wrote quite a bit on free speech and in rare cases of where free speech immediately endangered people (yes, yelling ‘fire’ in a crowded theatre) the framers where in favor of far more dramatic free speech than we see today.

    If you don’t like what someone is saying, outlawing their right to say it is wrong, period. However you have the right to speak up against what they say and to stand up and refute it. In this particular case, every attempt to censor the anti-vax groups only feeds their ‘conspiracy against us’ propaganda.

    There have and will always be people that choose to refuse vaccination, and publicly try to stop vaccination. It’s stupid, I don’t agree with it but at the same time I don’t care if they run ads. I will continue to explain to people why they are wrong. One person at a time if that is what it takes. Some people will listen tome, some won’t, and some will try to shut down my venues for saying it or try to outlaw my right to say it.

    Attempting to get the ads banned, is fighting the wrong fight.

    1. I think that’s a very naive position that you can have anti-vax groups reaching millions of people with a single ad and then we can just pound the pavement and convince people one at a time. On other skeptical issues, sure, that’s fine… ghosts and whatnot… but when you have schools shutting down, children being hospitalized and infants dying because of vaccine fears, letting ads air to feed that fear is a terrible idea. Your solution is simply not practical.

      And, in the meantime, I’m still working to educate people, one at a time.

      1. Removed, banned, same difference. While pounding the pavement may not be realistic or particularly effective sometimes it’s the only thing to be done. If you don’t like their ad campaign, mount a counter campaign, can’t afford to, then do something else. A for anti-vaccine propaganda leading to lives lost et al, all I can say, realistically is that the path to hell is paved with good intentions. Some people you and I will never reach. I can accept that. Some people will always makes choices that will hurt and kill themselves and maybe others, and I can accept that too. Vaccines are a great thing and everybody should be vaccinated, I’m just not comfortable with forcing them on anyone or restricting their right to say that they don’t like vaccines and why.

        1. @tomservo said “If you don’t like their ad campaign, mount a counter campaign, can’t afford to, then do something else.”

          How then is persuading and educating the media outlet that the message they’re helping relay is dangerous and misguided not ‘doing something else’? You seem to be drawing the line of free speech backwards and backwards until it arrives on my doorstep. Am I then to be forced to allow any speech within my private domain? CBS still had a choice. Still got to make the decision as to how they responded. It is, in fact, part of free-market economy that a vendor responds to the whims of the buyer.

          The society you’re painting is one where I need to allow anyone to say anything they like in my house (or business, or society) and, once they’re done I can then respond. I can’t just tell em to get the he’ll out of my house. Frankly, this strikes me as the same argument Internet trolls use when they cry ‘free speech’ for being bounced or quieted. I much prefer being able to throw them out the door.

    2. I am a rabid anti-originalist. The Constitution originally allowed state governments to regulate speech as much as it wanted; it was only Congress who couldn’t. Now, the Constitution is, as the say, the floor. As a general matter, referencing “the framers” may be helpful, but should not be the only thing the Supreme Court bases decisions on in the 21st century. We live in a different world with different standards.

      That said, it sounds like we agree on an important point, that outlawing these ads would be wrong. Unconstitutional, in fact (content discrimination. see the post.) But attempting to have the ad removed is not the same as banning. There is no state action. People attempt to get corporations to change their policies all the time. This is no different. CBS is actively promoting a dangerous concept that not only harms the people who choose not to be vaccinated, but also those who are too young to be vaccinated. We who are familiar with the science have a responsibility to counter and eradicate misinformation.

      1. It is unclear from the unlinked quote just what the context was in which the anti-vaxer said “in honor of free speech and informed consent.” However is it not clear from reading that this person was taking any kind of legal position. Freedom of speech isn’t just a body of law, and it isn’t just in the US Constitution. It is a global value that predates 1791 by quite a lot. It is older than the enlightenment, and has roots in Stoicism and Cynicism and ancient Greek philosophy. Surely it is much older than that, but the ancient Greeks were some of the earliest constitutional scholars and wrote down many values older than civilization. Freedom of Speech is not just a body of law, and to somebody not in the target audience the above rant could seem like a straw-man which does not address the criticism which is implied. Perhaps some understanding of the sense in which the statement was given could clarify that.

        Additionally some of your other statements also seem needlessly polarizing and will narrow your audience further. Perhaps that is intentional, since you are a “rabid” anti-originalist. However many do not think well of legal positivists, or take kindly to the implication that constitutions should be changed by unelected officials instead of by elected bodies of representatives. Nor do they take well to having their views represented by another false straw-man. Originalists read the Fourteenth Amendment in light of its own origin, not 1788.

        The best arguments are epistemological and grounded in the values that the widest audience will hold in common, such as value of human life and health. Vaccines save lives, with mild short-term side effects and undetectable long-term side effects. The problem is that anti-vaxers do not realize this, not that they are stupid.

        1. There was a lot in your comment, and I tried to respond to everything. If I missed anything, please let me know.

          While I think it’s probably fair to say that the petition did not intend to implicate First Amendment case law, I still a think a quick analysis was warranted. When someone invokes speech freedoms, it is for the purpose of scaring people into thinking that somehow those freedoms will be taken away. Part of what this post was meant to address is that, in this case, that is not going to happen. The petitions have absolutely no effect on the legal status of free speech.

          In addition, free speech, as an nebulous concept, is very old. However, to simply shout, Free speech! without defining what it actually means renders the concept useless in a public debate (like we’re having right now!). While the core concept is arguably at least near universal (it is in the International Bill of Human Rights and every regional human rights instrument) it’s parameters are defined differently in every country, consistent with it’s history and traditions. I’m not a moral relativist (although I kind of sound like one. Yikes!); I do think there are certain rights that every person should have, regardless of country. But I also think that maybe Germany should be allowed to ban the Nazi political party. This is something that would so not fly here, but is kind of reasonable given Germany’s history.

          What I am trying to demonstrate is that there really is not one way to do this free speech thing. Everyone has their own idea of what free speech is. And well they should. But to invoke “free speech” without defining it renders it a useless concept in a public debate, since everyone will be arguing from only an internal understanding.

          In a country with laws, free speech does boil down to just that. Laws. It’s easy to speech philosophically about what people should and should not be able to do. But when it comes right down to it, how those rights are manifested in modern society is through a legal system. Maybe there is a better way, but it’s not the way we’ve chosen.

          I also think you are overlooking the last half of the piece, as well. Not only do I argue that pulling the PSA wouldn’t ruin free speech for everybody, but I also argue that the mere existence of the petitions is a boon for free speech. I don’t think I could say any more here that I haven’t already said in the post.

          The “rabid anti-originalist” comment was directed at a comment about “the framers,” and only reflect my particular view of how the Constitution should be interpreted, and has no effect on the status of the law as it stands (which is accurately reflected in the piece.)

          I really don’t want to get into a debate on the merits of a common law system. But just remember that the Supreme Court consistently upholds free speech guarantees, (may I direct you to the case just last (?) term where the Phelps family was protected by First Amendment guarantees? A more heinous group of people I know not.) while legislatures pass the Alien and Sedition Acts and the PATRIOT Act. If the speech values are really universal, there should be no reason why a court shouldn’t hold them up on a regular basis.

          Also, I have no idea what your 14th Amendment comment is supposed to mean. But that only has bearing on the First Amendment because the 14th applies the First to the states. And yes, justices will look to whenever the amendment was ratified. It does no use to try to figure out what I means in a time before it was enacted.

          And I never said anti-vaxxers were stupid. At least, I didn’t mean to. I said they were fraudulent and implied they were hyperbolic.

      2. ‘That said, it sounds like we agree on an important point, that outlawing these ads would be wrong. Unconstitutional, in fact (content discrimination. see the post.) But attempting to have the ad removed is not the same as banning. There is no state action. People attempt to get corporations to change their policies all the time. This is no different’

        You are correct, and I agree. However, I personally am not comfortable with that. It’s not a cop out, I just prefer to use the ‘woo-woo’ communities campaigns as an opportunity to point out to friends and family and then explain to them why it’s spurious. I think that it is more productive to counter a poor argument than to just simply hide the poor argument from sight.

    3. I personally think that saying vaccines are dangerous is on par with yelling “FIRE!” in a crowded theatre. It’s directly and provably endangering people’s health and even their lives.

      At the same time, not speaking up in favor of vaccines and standing idly by while the misinformed continue to spread their misinformation is like noticing the smoke and the flames in the bacl of theatre and NOT yelling “FIRE!” and through your inaction allowing the fire to spread and potentially kill more people.

  6. I stumbled across a news story today that reports that the FTC is attempting to shut down a company in Washington state that disseminates false product claims (link below).

    It would be interesting to hear from someone who can tell us what the extent of the FTC’s power is (ie, does it work only on companies engaging in some form of trade, or can be it employed against any individual or organization; who decides the veracity of the claims and how egregious they have to be; is this power used only for good and never for evil; and so on).

    So, if Mercola and the National Vaccine Information Center are in fact disseminating harmful and/or demonstrably false information, then it seems odd that there wouldn’t be some mechanism for shutting them down as well. I’m a huge First Amendment fan, but as you point out, there are exceptions for obscenity and defamation, so maybe the list of exceptions should be broadened a bit — or at least a mandate that false information always be accompanied by the hashtag #NotIntendedToBeAFactualStatement. :)

    http://www.king5.com/news/Feds-crack-down-on-fake-news-stories-pitching-products-119825434.html

    1. If all else fails:

      http://www.bugaup.org/

      If you really need to get some action, get off ur fat lazy arses and employ some direct action!!!
      Sign a petition?, …yeah right!!!

      Is it petitions that made America great?!
      Back in the day they said smoking was fine…THEY LIED !!! Big shock..sign a petition?… yeah right!!!
      If you’re fair dinkum, rage against the machine!!! ACT NOW !!!

      1. Um… vandalize a JumboTron? In heavily trafficked and monitored Times Square?

        I don’t think that’s a great “appeal to parents” campaign. We still need to send the message that we’re like them and we care about health and safety. Spraypainting a Jumbotron is none of that.

        I’m more down with the “Let’s all try not to get arrested” strategy. It’s hard enough to fundraise for a nonprofit without explaining to donors that their money is for bail and defense attorneys.

        1. Back in the day we used spray cans against billboards, we’ve come a long way. Isn’t there some-one who can, within safe limits, electronically jam the signal during that ad. Maybe an inside job. If ppl can hack in to DoD and NASA can’t they just interfere for one day. Just sayin’..

          1. Which part of Willfull destruction of private proprty is “within safe limits”?

            Who exactly is this gang of juvie anarchist masterminds out h4x0ring the feed or manning the spray cans out to get?

            The anti-vax ad originators?

            CBS?

            The ad agency that probably actually owns the billboard you’ve just defaced?

            I’m sorry, man. This whole idea is just childish and pointless. All you do is draw attention away from anything else and put it squarely on these billboard bandits. You haven’t stuck it to the man, you’ve stuck it to some schmuck trying to make a living selling ad space.

    2. I actually thought about doing a little research on the FTC, because this does seem like something they could regulate. In the end, I decided to keep this post focused on speech issues. Plus, I don’t have much experience with FTC rules, and it would have taken me forever to research it. I have a life man! What do you want from me?

      But now you’ve peaked my interest, so now I’ll have to do some research :)

  7. I’ll admit to a bit of ignorance with the law, and I certainly support our dearly-held right to free speech. I just wonder how many degrees away this is from assisted suicide or some cross between negligent homicide and manslaughter.

    I can almost see it now: a mother passes on vaccination following the implications of this ad. In this case, her child catches the preventable disease and dies. Will she try to sue someone? The NVIC? CBS Outdoor who owns the medium by which she received this message? How far would it go? Could many parents of children suffering preventable diseases make a class action lawsuit?

    Again, I know nothing of the law here. It’s all speculation, so please feel very free to correct any of my guesses. The worst thought I have is that many more children are going to die before something responsible is done about this. :(

  8. Very uninformed non-lawyer question: How does Oliver Wendell Homles’ “you do not have the freedom to shout “fire” in a crowded theater when there isn’t one” fit into the anti-vax ads vs. Free Speech question? Speech that does harm not enjoying 1st amendment protection?

    Also, doesn’t the anti-vax ad constitute practicing medicine without a license given that the doctor who first provided the basis for this is no longer allowed to practice medicine anymore? Just curious.

  9. re: methods
    Whilst I agree with the more moderate approach in the present case, Bugga-Up actually worked and had a lot of mainstream public support, as well as sympathetic or at most neutral response from the media.
    However, in the anti-smoking campaign the stakes were higher in terms of lives lost and the power balance was even more distorted.
    In this context I like today’s post at http://www.youaredumb.net/
    Check out the last paragraph!
    There may come a time when more vigorous means become justified against anti-vaxxers. I hope not.

  10. @ Elyse: You know, the more I think about it, you should check out the clippings page on that bugaup link. I had forgotten how succesful they were.
    @Maggie is quite wrong, they were not “juvie anarchist masterminds” but rather professionals such as doctors. The whole idea was not childish and pointless, but resulted in major restrictions on tobacco advertising and a substantial decrease in the percentage of smokers in the population.
    Indeed the whole bugaup concept has been adopted by governments themselves in the health warnings and gory pictures now placed on cigarette packets.
    I copy one press clipping for your consideration:
    “The public support is staggering. People see BUGAUP as socially responsible even while the law is being broken. People can see the contradiction in alcohol and tobacco consumption, and I think they appreciate the humour that Bugaup tries to produce. There is a bit of the Ned Kelly ethic in every Australian that supports the underdog. Bugaup are out there actually doing what normal people only fantasise about”

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