Monday, January 24, 2022
Claudia E. Haupt (Northeastern University), Wendy E. Parmet (Northeastern University), Lethal Lies: Government Speech, Distorted Science, and the First Amendment, U. Ill. L. Rev. (forthcoming):
Throughout the COVID-19 pandemic, Americans have had to confront an extraordinary speech phenomenon: an onslaught of misinformation and recurring lies from government officials, including the former President and his top health officials, about the pandemic. This phenomenon intersects in potentially novel ways with enduring questions about the regulation of government speech.
Ordinarily, the government is free to articulate its own message to the exclusion of others. It can be pro-democracy or anti-tobacco without running afoul of the First Amendment. Whereas the requirement of content neutrality applies when the government polices the public speech of non-governmental actors, neither the government nor government officials are required to be neutral in their own messaging. Nor would we want them to be neutral regarding scientific and factual issues. Rather, we expect that government health agencies, such as the CDC or FDA and their officials, express only one side – the side best supported by science.
In this sense, we have traditionally treated government speech relating to health, safety and scientific matters as a particular form of expert speech. The expectation of content neutrality also does not apply to non-governmental experts, such as physicians and other health professionals. They are expected to ground the information they offer in the best science available. But unlike government officials, they are subject to malpractice law when they are offering advice to particular patients and clients. Government speakers have traditionally faced no such consequences for giving bad advice to the public. The torts of public health malpractice or public official informational fraud are not recognized. That raises the critical question: should they be? Or, do First Amendment values demand that government speakers have free reign, even when they deliberately distort scientific information related to the health of the citizenry?
In this Article, we engage with such questions. We begin by offering a typology that disaggregates speakers and types of speech through the lens of the range of misinformation that officials have offered during the COVID-19 pandemic. We distinguish among government speakers who echo experts, government experts who speak outside of their realm of expertise, and government speakers who lack expertise and issue official statements contra to expertise. We then explore the First Amendment’s relationship to government health misinformation, and consider whether private law should play a similar demarcation between protected and unprotected speech for government health officials as it does for privately practicing health professionals. We then argue that given the strong similarities between certain types of official health-related misinformation and professional speech, the legal regime that applies to the latter, more specifically malpractice law, provides a helpful model for thinking about and potentially policing the former.