JURIST Guest Columnist Mary S. Holland from the New York University School of Law discusses the legality of censoring speech on vaccines and autism…

In a recent guest column, Professors James G. Hodge, Jr. and Doug Campos-Outcalt explore ways to limit presidential candidates’ speech about a link between vaccines and autism. Noting recent comments by Trump, Carson and Paul associating vaccines and autism, the authors decry the politicians’ “free pass” to “spread such public health lies.” They even suggest that the candidates’ statements are the equivalent of yelling “gun fire” in a crowded theater and accuse them of being “brokers of public health fabrications.” Strong stuff! As the authors correctly note, however, the First Amendment offers little support for their proposed censorship.

As a threshold question, though, how do the authors know that the candidates’ underlying assertions are false? Has a vaccine-autism link been “debunked,” as they suggest? With the US autism rate among children continuing to skyrocket, having climbed from 1 in 110 children in 2011 to an estimated 1 in 45 children today, the question is critical. Are those who make a connection between autism and vaccines yelling “fire” in a crowded theater? Or, alternatively, are those who seek to suppress free speech trying to restrict people from yelling “fire” in a theater when there is indeed a fire, thus escalating potential harm? Can we possibly hope to establish truth without robust public discourse? I for one do not think so. The US embraces free speech more fully than any other country in the world precisely to ensure that the marketplace of ideas, and not government censors, ultimately decide what constitutes truth.

Enormous bodies of evidence, including federal statutes and case law, link vaccines to brain injury, including autism. Let us start with US Vaccine Law 101: because federally recommended childhood vaccines carry risks of severe injury and death, Congress passed the National Childhood Vaccine Injury Act in 1986, effectively shielding vaccine manufacturers and medical professionals from liability for vaccine-induced harm. Congress simultaneously created a compensation program in the Federal Court of Claims to pay out children for vaccine-induced injuries, including brain damage (encephalopathy) and death. To date, the compensation program has paid over $3.2 billion to 3,300 individuals for vaccine injuries and death. Since Congress granted industry and the medical profession a liability shield, the number of recommended childhood vaccine doses has approximately tripled.

Just what is the difference between cases of brain damage that the US government has compensated as a vaccine injury and those of “autism” that the government has refused to compensate? Several co-authors and I asked that very question in 2011, publishing an article in the Pace Environmental Law Review, entitled “Unanswered Questions from the Vaccine Injury Compensation Program” which finds that many compensated brain injury cases feature autism. The program compensated the cases for brain damage and seizures, but autism was present in a high percentage of cases. Dr. Julie Gerberding, former director of the Centers for Disease Control and Prevention and now a Vice President at Merck, Inc., acknowledged on CNN in discussing a federally-compensated case featuring autism that “…if you’re predisposed with the mitochondrial disorder, it [vaccination] can certainly set off some damage. Some of the symptoms can be symptoms that have characteristics of autism.” In plain English, Dr. Gerberding acknowledged that vaccines caused the child’s autism, as there is no meaningful distinction between “characteristics of autism” and autism, because the diagnosis is based solely on characteristic symptoms.

Another decision from the Vaccine Injury Compensation Program, Banks v. HHS, states the reality of vaccine-induced brain injury including autism more starkly: “Bailey’s ADEM [acute disseminated encephalomyelitis] was severe enough to cause lasting, residual damage, and retarded his developmental progress, which fits under the generalized heading of Pervasive Developmental Delay, or PDD. Additionally, this chain of causation was not too remote, but was rather a proximate sequence of cause and effect leading inexorably from vaccination to Pervasive Developmental Delay,” which is an autism spectrum disorder (italics added).

Why would we censor Presidential candidates who concur with what government officials and civil servants have already acknowledged? Why would we seek to deter politicians from discussing a national health disaster and its plausible causes?

The authors suggest that vaccine manufacturers should sue candidates for defamation if the candidates finger particular vaccines. Truth, however, is an absolute defense against defamation. The irony of the authors’ statement is that certain vaccine manufacturers already acknowledge a vaccine-autism link. Sanofi Pasteur’s product insert for its diphtheria-tetanus-pertussis vaccine Tripedia includes on page 11 that autism is a reported adverse event. GlaxoSmithKline, in a confidential 1271-page report on one of its infant vaccines disclosed in a European lawsuit that autism is a reported side effect of its hexavalent vaccine at page 626. Surely, defamation suits would be impossible to win if corporations themselves report plausible vaccine-autism links.

While the authors suggest that medical authorities, including the CDC, WHO and Institute of Medicine “disprove completely” any vaccine-autism link, they fail to discuss the recent admissions of Dr. William Thompson, a CDC lead scientist on vaccines and autism whose work has figured prominently in official rebuttals of a vaccine-autism link. Dr. Thompson has acknowledged, as published in a recent book, that CDC scientists intentionally manipulated and falsified data showing a powerful statistical link between the measles-mumps-rubella vaccine and autism in African-American males. Dr. Thompson has requested that Congress issue a subpoena for him to testify. Congrssman Bill Posey has called for hearings on Thompson’s allegations, but so far, Congress has failed to act on this issue, as it has on so many others.

It is perhaps unsurprising that the authors would prefer to muzzle the vaccine-autism debate. By all appearances, they have staked major part of their careers on the safety and efficacy of vaccines, working closely with government on vaccines. Presumably, anything that suggests that childhood vaccines are less than completely safe and effective is unwelcome. Nevertheless, what we know from science, medicine, statutes, case law, corporate statements and tens of thousands of case histories is that vaccines are neither completely safe nor completely effective. We know indisputably that for some children, vaccines cause brain injury and that in some cases, the brain injury manifests symptoms called “autism.”

So, may the vaccine-autism debate rage on, at the Presidential level and elsewhere, until we know fully what has caused this unprecedented condition and until we have prevented its further rise. Then, let the debate die of its own accord, not because would-be censors attempt to silence it.

The First Amendment and former Justice Sandra Day O’Connor of the US Supreme Court, stand squarely behind free speech:

The constitutional right of free expression is … intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us…in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. (internal citations omitted).

Mary S. Holland, Research Scholar and Director of the Graduate Lawyering Program, New York University School of Law.

Suggested Citation:Mary S. HollandLegally Censoring Speech on Vaccines and Autism: A Response, JURIST – Academic Commentary, December 11, 2015, http://jurist.org/forum/2015/mary-holland-vaccines-autism.php