JURIST Guest Columnists James G. Hodge Jr. of the Sandra Day O’Connor College of Law at Arizona State University and Doug Campos-Outcalt of the University of Arizona College of Medicine-Phoenix discuss the potential to legally limit anti-vaccination messages widely disseminated by political candidates…

Heard enough about the potential for childhood vaccines to cause autism or other harms? So have we. For decades, politicians have replayed over and over misbeliefs about the alleged risks of autism and other injuries from childhood vaccines. In the September 2015 Republican Presidential Debate, the one-time front-runner Donald Trump alleged he knew of a 2-year-old who was vaccinated, got a “tremendous fever” and “now is autistic.”

Other Republican Presidential candidates, including medical doctors Rand Paul and Ben Carson, support vaccines but suggest they should be spaced out over a longer period than a child’s first three years. Previously Sarah Palin and Michelle Bachman resonated their own anti-vaccination sentiments. In 2008 even President Obama acknowledged others’ concerns about potential links between vaccines and autism.

Separating Myth from Reality
Enough is enough. It is time to separate myth from reality. Anyone trained in public health will tell you about the significant impact of vaccines on reducing morbidity and mortality in the last century. Vaccines (1) prevent more illnesses (16 million per year on average in the US according to the Centers for Disease Control and Prevention (CDC)); and (2) save more lives (2-3 million globally annually according to the World Health Organization (WHO)) than virtually any other public health intervention. Childhood vaccines, most of which are relatively inexpensive, avert billions in health care costs and are extremely safe due to robust public and private testing and monitoring systems.

Comprehensive reviews of vaccine safety conducted by CDC, WHO, the Institute of Medicine, and others overwhelmingly support their effectiveness based on the current distribution schedule. These assessments also disprove completely claims of vaccine-linked autism. Prior “research” suggesting a link in the medical journal, The Lancet, has been debunked entirely and retracted from its original publication.

Still, some fringe groups genuinely believe vaccines are riskier than the diseases they prevent. These beliefs, based on junk science, rumor and fraud, imply that the timing of child vaccines and early onset autism (or other conditions) are related. They are not.

Shutting Down Messengers of Vaccine Lies?
If dissemination of these false beliefs caused no societal harms, then so be it. Medical misstatements are exchanged all the time largely without incident. However, negative impacts arise when appreciable numbers of Americans avoid timely immunization of their children in fear of potential harms extending from the receipt of a substance foreign to the human body. Multiple outbreaks of preventable diseases, highlighted by the Disneyland measles outbreak earlier this year, threaten thousands of kids and adults annually. Such consequences beg the question: can messengers of openly false statements that contravene the public’s health be stopped?

The answer juxtaposes First Amendment freedoms of speech and constitutional protections of community health. Americans enjoy significant liberties to speak as they wish on topics of choice. Government prohibitions of specific content of speech are constitutionally disdained. Alternatively, government attempts to mandate speech contrary to one’s beliefs or interests are routinely rejected based on infringements of the right not to speak.

Yet free speech has its limits, particularly when significant public health interests are at stake. In many instances legal ramifications, penalties or liabilities may stymie or derail specific messages. For example, if governmental health officials publicize false statements linking child vaccines and autism, they could lawfully be censored or fired from their positions. They have no constitutional right to spread false statements antithetical to the mission of their agency or office.

Politicians or others who incorrectly suggest that a specific pharmaceutical company’s vaccines are known to cause autism could be sued for defaming the company. In multiple states, including Arizona and Georgia, defaming perishable foods can give rise to litigation across an entire industry. Recall in 1998 when Oprah Winfrey was sued, albeit unsuccessfully, under Texas state law for alleging the US beef industry was at risk of mad cow disease?

Conversely, what if a company nationally advertised the following claim: “Unlike competitors’ products, our vaccine has never been linked to autism?” The Food and Drug Administration (FDA) could lawfully fine the company and require the retraction of its ads. Commercial speakers cannot spread falsehoods about their or others’ products.

Doctors or other health providers who counsel parents to avoid child vaccines because of risks of autism could face potential licensure sanctions and malpractice claims should a patient suffer harm as a result. Of course, few doctors would make this practice mistake. In reality, up to 20 percent of pediatricians today opt to disassociate altogether from parents who refuse vaccinations for their kids.

A Political “Free Pass”
In each of these examples (and multiple others), freedoms of speech do not absolve messengers from potential legal ramifications of disseminating false information contrary to the public’s health. So why do politicians seem to enjoy a virtual “free pass” to spread such public health lies?

In part, their statements are overly general. If a candidate specified one vaccine was linked to autism, forthcoming defamation claims may convince them from ever saying it again. More importantly, political actors enjoy extensive First Amendment protections to promote vigorous and open political processes. Political views, even those that outright lack truth, can be made without major, or sometimes any, legal implications.

For example, Missouri Rep. Todd Akin stated in 2012 that “legitimate rape” does not lead to pregnancy, which is untrue. He later recanted the statement and apologized. During the 2015 Planned Parenthood investigations, Utah Rep. Jason Chaffez publicly posted a chart with patently false data. When called out on it he quickly changed the subject.

For politicians to intimate that kids’ vaccines are the cause of autism is not just a lie, it is the public health equivalent of falsely yelling “gun fire” in a crowded theater. In both cases, people react in ways that harm them or others without justification. While anti-vaccination statements may still be “protected speech” when spoken by politicians, there is, of course, no legal requirement to listen to, or vote for, brokers of public health fabrications.

James G. Hodge, Jr., JD, LLM, is Professor of Public Health Law and Ethics and Director, Public Health Law and Policy Program at the Sandra Day O’Connor College of Law at Arizona State University. Doug Campos-Outcalt, MD, MPA, is Medical Officer, Mercy Care Plan, Phoenix, Arizona, and Adjunct Professor of Medicine, University of Arizona College of Medicine-Phoenix.

The author acknowledges the following individuals for their research and editing assistance: Brenna Carpenter and Matt Saria with the Public Health Law and Policy Program, Sandra Day O’Connor College of Law, ASU.

Suggested citation: James G. Hodge & Doug Campos-Outcalt, Legally Limiting Lies About Vaccines, JURIST – Academic, Nov. 17, 2015, http://jurist.org/academic/2015/11/hodge-campos-vaccines-speech.php.