RFK, Jr. hearing prompts reconsideration of civil, regulatory responsibility for vaccine misinformation

"Are you supportive of these onesies?" Sen. Sanders asks.
© C-SPAN (YouTube; license).

The showdown between Bernie Sanders and RFK, Jr., featuring anti-vacc onesies, got me thinking about articles published by a former student, later academic and bar colleague, positing tort and regulatory approaches to harmful vaccine misinformation.

I wrote in 2017 about physician-attorney Donald C. Arthur's Commercial Deception by Anti-Vaccine Homeopathic Websites: A Consumer Protection Approach, 10:1 Biotechnology & Pharmaceutical L. Rev. 1, 27 (2017). At the time, the article was behind a pay wall; it is now freely available.  Here is the abstract.

Some internet marketers offer for sale "vaccination substitutes" that can purportedly replace actual scientifically-tested and federally-approved vaccinations. Deceptive internet advertising for vaccine substitutes has dissuaded parents from vaccinating their children, resulting in a resurgence of vaccine-preventable childhood diseases. The Food and Drug Administration and Federal Trade Commission have the authority to address dangerously deceptive product claims, including those for homeopathic preparations that have thus far avoided safety and efficacy testing. This article presents the issues involved in deceptive advertising and proposes regulatory solutions.

When Dr. Arthur and I first discussed the project in the 2010s, he was thinking about a tort theory for liability for publishers of vaccine misinformation. The tort theory is fraught, but feasible. There are problems of proof, such as the attenuated causation linking the publication of misinformation with later disease, and the inevitable First Amendment defense, which at plaintiff's most fortunate still might require culpability in excess of ignorance.

Dr. Arthur split his research into two works. He published in 2016, I didn't mention in 2017, Negative Portrayal of Vaccines by Commercial Websites: Tortious Misrepresentation, 11:2 UMass L. Rev. 122 (2016), also freely available. Here is the abstract.

Commercial website publishers use false and misleading information to create distrust of vaccines by claiming vaccines are ineffective and contain contaminants that cause autism and other disorders. The misinformation has resulted in decreased childhood vaccination rates and imperiled the public by allowing resurgence of vaccine-preventable illnesses. This Article argues that tort liability attaches to publishers of commercial websites for foreseeable harm that results when websites dissuade parents from vaccinating their children in favor of purchasing alternative products offered for sale on the websites.

When Dr. Arthur wrote both these articles in 2016, it was before the first election of Donald Trump with attendant attempts to disarm and dismantle federal consumer protection systems. The tort theory looks better now. See Dorit Reiss & John Diamond, Tort Law: Liability for Anti-Vaccine Misinformation, 4 Judges Book 107 (2020) (not citing Arthur).

Dr. Arthur is an emergency medicine and preventive medicine physician.  He served 33 years in the U.S. Navy, culminating his career as Navy surgeon general and retiring at the rank of vice admiral. He served as chief executive officer of three hospitals, including the National Naval Medical Center in Bethesda, Maryland. Dr. Arthur teaches adjunct at UMass Law and for seven years practiced of counsel with the Law Offices of Beauregard, Burke and Franco.

HT @ Melissa Colten, UMass Law public interest fellow, whose curiosity reminded me of these articles.

Emergency orders survive constitutional scrutiny; Mass. Court cites Korean War, smallpox cases

The Massachusetts Supreme Judicial Court (SJC) ruled Thursday that pandemic emergency orders of the Commonwealth Governor were valid under the Massachusetts Civil Defense Act and public health law, rejecting challenges based in state and federal civil rights, including due process and the freedom of assembly.

Defunct Youngstown Sheet & Tube Co., 2006 (stu_spivack CC BY-SA 2.0)

The Court borrowed doctrine from U.S. constitutional law on separation of powers, Youngstown Sheet & Tube Co. v. Sawyer (U.S. 1952), a case about President Truman's seizure and operation of steel mills during the Korean War.  The SJC used Youngstown and the concurring opinion of Justice Robert H. Jackson to reason that Governor Charlie Baker acted at the zenith of executive power, because he acted within broad statutory authority.

Official portrait of Justice Jackson,
by John C. Johnsen, Collection of the
Supreme Court of the United States, via Oyez

In Youngstown, Justice Jackson set out a three-part rubric to test the strength of executive power, whether bolstered by congressional authorization, occurring amid legislative silence, or arising in defiance of legislative imprimatur.  Though not without controversy attaching to the communitarian result in the context of government seizure of private enterprise, Justice Jackson's famous test has been committed to memory by law students studying for the bar exam for generations.  Justice Jackson was Attorney General to President Franklin D. Roosevelt, so loyal to the New Deal.  Roosevelt appointed Jackson to the Court in 1941.  While a Supreme Court Justice, Jackson also served as chief U.S. prosecutor in Nuremberg after World War II.

Ruling the pandemic within the scope of "other natural causes" of emergency under the Civil Defense Act (CDA), the Court indicated also that it was not shirking its oversight role:

[W]e emphasize that not all matters that have an impact on the public health will qualify as "other natural causes" under the CDA, even though they may be naturally caused. The distinguishing characteristic of the COVID-19 pandemic is that it has created a situation that cannot be addressed solely at the local level. Only those public health crises that exceed the resources and capacities of local governments and boards of health, and therefore require the coordination and resources available under the CDA, are contemplated for coverage under the CDA. Therefore, although we hold that the COVID-19 pandemic falls within the CDA, we do not hold that all public health emergencies necessarily will fall within the CDA, nor do we hold that when the public health data regarding COVID-19 demonstrates stable improvement, the threshold will not be crossed where it no longer constitutes an emergency under the CDA.

Mass. Gov. Baker (Charlie Baker CC BY-NC-SA 2.0)

Relative to civil rights, the Court recognized the Governor's argument under Jacobson v. Massachusetts (U.S. 1905).  A federal Supreme Court case that arose in Cambridge, Massachusetts, at the turn of the century before last, Jacobson has been cited widely lately, amid the coronavirus pandemic, because in Jacobson, the Court upheld an ordinance requiring vaccination for smallpox as a valid exercise of state police power.

Critics fairly argue that Jacobson is read too broadly as a constitutional authorization of mandatory vaccination.  Among points of distinction, the upheld ordinance merely subjected an objector to a five-dollar fine—about $150 today, much less than the individual-healthcare-mandate penalty before Congress zeroed it out.  More importantly, Jacobson predates the complex system of multi-tiered constitutional scrutiny that the U.S. Supreme Court devised under the due process clauses of the Fifth and Fourteenth Amendments in the 20th century. 

Justice Cypher

The SJC quoted Jacobson's logic in some detail "as an initial matter," but declined to give the Governor carte blanche, instead applying 20th-century due-process scrutiny.  The Court rejected procedural due process arguments because the emergency orders occasioned no individual adjudication, and rejected substantive due process because the generally applicable orders satisfied rational-basis review.  The selection of "essential" businesses was non-arbitrary and did not treat disparately any protected class, such as religious institutions.

Similarly with regard to the freedom of assembly, the Court regarded the emergency orders as valid time, place, and manner restrictions, appropriately narrowly tailored to a significant government interest in intermediate scrutiny, leaving open ample alternative channels of communication.

The case is Desrosiers v. Governor, No. SJC-12983 (Mass. Dec. 10, 2020).  Justice Elspeth B. Cypher authored the opinion for a unanimous Court.

Abstract: Arthur on vaccination and consumer protection

Donald C. Arthur, M.D., J.D. UMass Law '17, has published Commercial Deception by Anti-Vaccine Homeopathic Websites: A Consumer Protection Approach, 10 Biotechnology & Pharmaceutical L. Rev. 1, 27 (2017).  Here is the abstract.

Abstract

Some internet marketers offer for sale “vaccination substitutes” that can purportedly replace actual scientifically-tested and federally-approved vaccinations. Deceptive internet advertising for vaccine substitutes has dissuaded parents from vaccinating their children, resulting in a resurgence of vaccine-preventable childhood diseases. The Food and Drug Administration and Federal Trade Commission have the authority to address dangerously deceptive product claims, including those for homeopathic preparations that have thus far avoided safety and efficacy testing. This article presents the issues involved in deceptive advertising and proposes regulatory solutions.

The article is available to Westlaw Next subscribers here.  The Review is published at North Carolina Central University School of Law.

Claiming Don as an alumnus is decidedly my privilege.  Dr. Arthur is an emergency medicine and preventive medicine physician.  He served 33 years in the U.S. Navy, culminating his career as Navy surgeon general and retiring at the rank of vice admiral. He served as chief executive officer of three hospitals, including the National Naval Medical Center in Bethesda, Maryland.