Whether you’re a hard core anti-vaxxer (and it seems no one claims to be one anymore), or have even the mildest concerns that some vaccines might be harming a small subset of people, it’s been tough times recently. The measles outbreaks in Washington, Oregon and New York have really stirred things up in both the public and private sectors.  

Congress has held hearings. Adam Schiff has even taken a day off from Trump-bashing to call on Amazon and social media to ban anti-vax content. (more about that later).  Amazon has responded by removing “anti-vax” movies from its web site. There is talk about removing books from on-line sales sites. Facebook just announced that it is implementing an anti-vax policy, as have other internet platforms. The soon-to-be former FDA commissioner has threatened unspecified federal action against states with low vaccination rates. See my post at:   http://rickjaffeesq.com/2019/02/20/fda-commish-talks-from-a-place-other-than-his-mouth-and-i-agree-with-richard-pan/

I’ve recently written about a case report in a medical journal which was removed because the columnist dared to suggest to clinicals that they consider whether presenting symptoms might be acute encephalitis associated with the HPV vaccine. Here is that post: http://rickjaffeesq.com/2019/02/28/real-time-censorship-of-case-report-on-hpv-vaccine-associated-with-adem/

 A filmmaker called me recently and told me his films have been removed from Amazon and there was only a peripheral connection to vaccines. He wanted to know what the community is going to do about it. That got me thinking about the obvious:

 Are we getting into First Amendment violation territory with all these actions?

I haven’t heard much of these kinds of issues reaching the courts, and a cursory search mostly confirmed that. But for grins, let’s work through the issue, starting with the where it all starts, the First Amendment:

Here are those magnificent but intentionally vague words:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” First Amendment of the U.S. Constitution passed by Congress September 25, 1789. Ratified December 15, 1791.

I found a good explanation of freedom of speech on the American Library Association’s web site. Here it is:

“The right to speak and the right to publish under the First Amendment has been interpreted widely to protect individuals and society from government attempts to suppress ideas and information, and to forbid government censorship of books, magazines, and newspapers as well as art, film, music and materials on the internet. The Supreme Court and other courts have held conclusively that there is a First Amendment right to receive information; the right to receive information is a corollary to the right to speak. Justice William Brennan elaborated on this point in 1965:

“The protection of the Bill of Rights goes beyond the specific guarantees to protect from Congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful. I think the right to receive publications is such a fundamental right. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.” Lamont v. Postmaster General, 381 U.S. 301 (1965).

When the Supreme Court considered whether a local school board violated the Constitution by removing books from a school library, it held that “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.”

But here is the really important point from this site:

“The First Amendment only prevents government restrictions on speech, not restrictions imposed by private individuals or businesses. Mark Zuckerberg can restrict speech on Facebook because it is a private business and he is not the government, the action of private individuals.” 

Here is the page where this appears: http://www.ala.org/advocacy/intfreedom/censorship

 Let’s call this the general rule of First Amendment free speech law. It only applies to restrictive action taken by the government. But as we’ll see, the Library’s view might be alittle simplistic and might even be changing. Nonetheless, as a general rule it’s accurate. So, if Facebook, Amazon and the rest of E commerce and the Internet are viewed as private parties, the First Amendment wouldn’t prohibit their content censorship, at least under current jurisprudence.

In terms of government or state restrictions on speech, the courts generally look unfavorably on censorship or government regulation of content of protected speech. Maybe the government can regulate the time, place and manner of protected speech, but that’s about it, in terms of protected speech.

 What about unprotected speech? Well Duhh! It’s unprotected (by the First Amendment).

What kind of speech is unprotected? Libel, slander, false advertising, words meant to incite violence, child pornography, obscenity (hard to define, but as the Justice said, “I know it when I see it”), students advocating illegal drug use at a school event, and of course, yelling fire in a movie theater if there is no fire.  

Well, the cleverer ones are probably thinking, what if the government claims that anti-vax misinformation is like yelling fire in a movie theater when there is no fire? It’s just as dangerous isn’t it? Scarring people by disseminating false information about the dangers of vaccines which we know causes parents not to vaccinate their kids which leads to these horrible outbreaks, or so the argument might go. Seems like a good guess that’s coming if the government decides to step in. And frankly, it seems like a formitable argument, based on the current medical vaccine paradigm (but more about that another time).

But circling back to the main point of this post, namely whether private companies have to comply with the First Amendment or whether they can engage censorship, there might be some wiggle room based on a pending Supreme Court case.  

 What if a private company acts with a public license, like say a public access cable TV station? Can it engage in content-based discrimination/censorship? Does the grant of a public license in some sense make the company a “state actor” which would require it to comply with the First Amendment like the government must?  

That question will be answered by the Supreme Court this term in Manhattan Community Access Corp. v. Halleck, No. 17-1702, My intuition honed by 30 plus years of practice and my deep legal scholarship gives me some insight into the matter. OK, not really, but here is what Wikipedia says about the case:     

“While the case deals with speech limited by a public access television station, questioning whether the station was a state actor or a private entity, analysts expect the case will determine if private operators’ limitations on free speech on social media violate First Amendment rights.”

For those who want to get the details and the prior case law. Here is the URL.

https://en.wikipedia.org/wiki/Manhattan_Community_Access_Corp._v._Halleck

So, we might have some Supreme Court authority on the issue in a few months. (oral argument was two weeks ago).

Here’s another question: Suppose a government official tells Facebook or Amazon to engage in censorship? Is that enough for state action? Could that be a conspiracy? (I hate using that word in a vaccine post, but I mean it in a technical legal sense like in 21 USC 371). Probably not technically anyway, since legislators are generally cloaked with absolute immunity. (So, Adam, I think you’re probably OK, legally speaking. Now maybe go back to Trump bashing. You’re really good at it because you’re so measured and circumspect, which has to make it even more galling for our Dear Leader, but I digress.)   

What about search engines?

Can you sue them delisting companies or web sites?  You just know that’s coming as well.

That question was addressed in E ventures Worldwide v. Google. Google delisted the company because it thought the company was spamming. E ventures argued that it was kicked-off because Google didn’t want the competition from the company’s SEO activities.

The court held that Google’s action in removing the company from its search engine was covered by the same First Amendment privilege that attaches to a newspaper editor who decides which articles go on the front page and which are unworthy of publication.

Here is the URL for the decision.  https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2410&context=historical.

This is just the most recent example of a company not being able to sue Google for being delisted. Earlier decisions go back to the early 2000’s. Here is an earlier one.

http://blogs.reuters.com/alison-frankel/files/2014/03/Search-King-Inc-v-Google-Technology-Inc.pdf

So, search engines have a First Amendment right to publish or not publish what they want, even if it’s content censorship, But Facebook arguably can engage in content-based censorship because the First Amendment doesn’t prohibit such companies from doing so?? Hmm. Some might consider that odd, and possibly require some harmonization.   

And at some point (but not here), I’ll need to address some specific federal communications laws applicable to internet provides which might provide additional wrinkles. (For those who just can’t wait, look at the E ventures decision which addresses the issue.)

 https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2410&context=historical.

Does it feel like we’re on a merry-go-ground? Are you getting dizzy yet? Good, that’s the point, meaning the law is still unsettled and has to be developed.

But for now, and I mean right now, my sense is that Facebook and other such places do not have to allow everyone to post anything they want, and these companies can enforce what they call their “community standards” at they see fit, in their absolute discretion. That would include removing material they consider to be anti-vax, at least until some court, (and that ultimately would be the Supreme Court) says they can’t.

But… (and like I’ve said in the past, there’s oftentimes a but), practically speaking, it might be harder than Facebook thinks to enforce its new policy. I’ll explain that in another post. But to give you a forspice (appetizer/taste for the Yiddish illiterati), one of my all-time favorite phases comes from JD Salinger’s Franny and Zooey, “verbal stunt pilots.”

Stay tuned!

Rick Jaffe, Esq.

rickjaffeesquire@gmail.com