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 and viewpoint neutrality applies when the government polices the public speech of nongovernmental 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, would 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 nongovernmental 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. This raises the critical question: should they be? Or do First Amendment values demand that government speakers have free reign, even when they 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 contrary 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, more speculatively, potentially policing the former.
a. Associate Professor of Law and Political Science, Northeastern University.
b. Matthews Distinguished University Professor of Law and Director, Center for Health Policy and Law; Professor of Public Policy and Urban Affairs, Northeastern University.
Our thanks to Helen Norton and the University of Illinois Law Review for inviting us to participate in this symposium, and to the symposium participants as well as Joseph Blocher, Caroline Mala Corbin, Wes Henricksen, Jessie Hill, Catherine Ross, Ana Santos Rutschman, and participants in the 2022 Freedom of Expression Scholars Conference at Yale Law School for helpful comments on earlier drafts. Thanks also to Alexandra Baskfield, Katherine Reynolds, and Connor Scholes for their excellent research assistance.
The full text of this Symposium is available to download as a PDF.