Vilches Arguello 1

Ailin Vilches Arguello

Professor David Primo

PSCI 210W

13 December 2023

Balancing Public Health and First Amendment Rights during Global Health Crises

Introduction

Amid the COVID-19 pandemic, the tension between safeguarding public health and

upholding First Amendment rights has become a paramount concern. This research aims to delve

into the intricate dynamics of managing this delicate balance, exploring a diverse selection of

sources to comprehend the conflicting views on this complex issue. By examining the response

to the COVID-19 pandemic in the United States, this paper seeks to draw valuable lessons from

both successes and shortcomings in our attempt to navigate the intersection of public health

imperatives and the preservation of constitutional rights. This exploration will then contribute to

a nuanced understanding of the inherent challenges in such situations, along with the opposing

views that emerged due to the various policies and approaches that the United States

implemented in response to this public health emergency.

Throughout this pandemic, numerous layers intertwined, demanding a comprehensive

understanding to safeguard both the population and their individual freedoms. The uncertainty

surrounding scientific knowledge, coupled with political considerations and public perception,

converged with economic aspects and profound public health concerns. These factors disrupted

our social dynamics, revealing numerous deficiencies that rendered the situation more intricate

than ever before. In the face of such complexities, critical questions arise for public health
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officials and the government alike. How can they strike a balance between protecting public

health and respecting people’s civil rights?

On the one hand, imposing excessive limitations on the First Amendment may jeopardize

thoughtful debate and dissent, hindering the ability to learn and discover new information. This

view - embodied by, for example, those scientists who signed The Great Barrington Declaration -

asserts that there was insufficient scientific evidence to justify restrictions on a free society and

individual rights during the COVID-19 pandemic. According to Dr. Jayanta Bhattacharya, who is

a co-author of this document, societies learn and evolve through reasoned disagreement, and

unity then emerges organically. They criticize what they perceive as an increased shutdown of

diverse perspectives that deviated from established narratives or scientific consensus, citing a

potential misuse of public health protections that, in their view, undermines freedom of

expression.

However, the counterargument, expressed in the official discourse of the government,

asserts that stringent measures were essential to protect public well-being. For instance, Dr.

Anthony Fauci has stated on the Department of Health and Human Services’ (HHS) “Learning

Curve” podcast that lockdowns have saved hundreds of millions of infections and millions of

lives.

Even though we have seen Fauci’s statement challenged by the analysis of new data that

shows it not to be entirely accurate, whether these trade-offs were worthwhile depends on

individuals’ perspectives and understanding of this entire crisis. Each side has arguments to

defend its position based on their beliefs and priorities, considering aspects such as economic

concerns, public health threats, political dynamics, psychological effects, impacts on education,

socio-economic factors, and implications related to race and gender, among many others.
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Legal Landscape: Courts and Constitutional Rights

Throughout the first months of the COVID-19 outbreak, as we grappled with

understanding the nature of the virus, officials implemented measures such as physical

distancing, stay-at-home orders, travel restrictions, and the closure of schools and nonessential

businesses. Did the government do too much? Did they potentially cross a line regarding

people’s civil rights?

While the courts typically require health officials to provide individualized risk

assessments, along with procedural protections, to justify isolation and quarantine measures, they

also grant considerable discretion during emergencies (Gostin and Wiley). For instance, in 1986,

a New York court upheld the closure of bathhouses to prevent the transmission of HIV.1 In

addition, Congress has the authority to regulate interstate travel if necessary to prevent the spread

of a contagious disease; however, the extent of the President’s authority in this regard is

uncertain in the absence of explicit legislative authorization (Gostin and Wiley).

Similarly, the courts provide extensive authority over business operations to ensure public

health protection, but federal power to shut down businesses is limited to preventing the

interstate transmission of diseases. Dating back to 1873, the Supreme Court upheld an order to

relocate private slaughterhouses from New Orleans downstream to mitigate cholera outbreaks.2

Given the rapid spread of SARS-CoV-2, health authorities then had well-established

powers and precedents to order the shutdown of places where people congregate (Gostin and

Wiley). These bans and restrictions significantly impacted people’s everyday lives, influencing

how they socialize and engage in their daily activities, including religious congregations,

entertainment, business meetings, lobbying, protests, among many others.

1
New York v New St Mark’s Baths, 497 NYS2d 979 (Sup Ct 1986).
2
Slaughter-House Cases, 83 US 36 (1873).
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In this regard, the controversial aspect is that the First Amendment protects free speech,

religion, and assembly. Nevertheless, the Supreme Court often upholds “content-neutral”

restrictions when justified by a compelling public interest. Not only did COVID-19 policies not

single out any group or censor any idea, but public health officials also argued that those

measures were necessary in light of the threat posed by this crisis (Gostin and Wiley). For

example, a recent decision by a New Hampshire court held that, due to the rapid spread of

SARS-CoV-2 in congregated settings, bans on gatherings are a permissible limitation on free

assembly.3 In this sense, the First Amendment is then subject to regulation, especially during a

public health crisis.

What remains unclear, though, is the standard of review used to assess the

constitutionality of the restrictions imposed nationwide on people’s rights. Over the course of

this pandemic, COVID-19 regulations, often issued as executive orders, were scrutinized either

under the Jacobson standard or through rational basis or strict scrutiny (Griffin and Pashman).

The Jacobson standard stipulates that, in the face of “a society-threatening epidemic, a state may

implement emergency measures that curtail constitutional rights so long as the measures have at

least some “real or substantial relation” to the public health crisis and are not “beyond all

question, a plain, palpable invasion of rights secured by the fundamental law.”4 The rational basis

test, on the other hand, prohibits the government from imposing restrictions on liberty that are

irrational or arbitrary. Meanwhile, strict scrutiny dictates that the legislature must have enacted

the law to further a “compelling governmental interest.” In this context, the courts arrived at

significantly different conclusions on multiple cases, with no consensus even on the applicable

standard of review, so there is no clear opinion or judgment about these policies.

3
Binford v Sununi, Order of NH Super Ct. Docket No. 217-2020-CV-00152. March 25, 2020.
4
In re Abbott, 954 F.3d 772, 784-85 (5th Cir. 2020).
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Nonetheless, some of these restrictions were subsequently addressed through revised

executive orders and policy decisions. As circumstances in the virus’ spread changed, and there

was widespread social upheaval in response to some of the government’s actions, officials were

prompted to reassess their positions to navigate the balance between public health and public

opinion (Griffin and Pashman). For instance, demonstrations following the killing of George

Floyd in Minneapolis compelled leaders to reconcile their support for the Black Lives Matter

protests with their efforts to prevent further spread of COVID-19 by limiting gatherings.

Afterwards, several protests occurred across the country, yet no state has issued citations for

violating those restrictions.

Taking an opposing view from what has been discussed so far, there is also an argument

asserting that the role of the courts has, in fact, undermined the states’ capacity to safeguard

public health in the future. The Court’s approach to comparability in COVID cases, responding

in part to “the messy [...] mix of laws and exemptions that characterized the state response to the

pandemic,” has opened a Pandora’s Box posing a threat to public health (Parmet). Given the lack

of a coordinated, federal response, states have implemented, withdrawn, and reinstated a range of

restrictions, creating significant inconsistencies between jurisdictions. Some of these changes

were prompted by new evidence and the virus’s shifting epidemiology, while others were

influenced by political and economic pressures (Parmet).

COVID-19 will not be our last pandemic, and when the next one occurs, safeguarding the

public’s well-being may once again involve the reimplementation of certain policies and

restrictions until a vaccine or treatment is developed. However, the Court’s recent legal

interpretations may imply that any exemptions in those policies could trigger strict scrutiny and
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increased litigation concerning the effects of broad discretionary powers (Parmet). In such cases,

the state’s reliance on public health evidence might offer limited support to its position.

Balancing Boundaries: Free Speech and Professional Discourse

Over the course of this pandemic, it has been argued that an increasingly conservative

U.S. Supreme Court has significantly hindered the government’s ability to regulate

misinformation regarding the risks, prevention, and treatment of COVID-19 (Sage and Yang).

This misinformation ranges from challenging the safety and effectiveness of vaccines to

promoting unproven and risky treatments and encouraging conspiracy theories. Given that legal

precedents allowing some regulation of potentially false or misleading information may no

longer accurately reflect the stance of the courts, the regulatory capacity of governmental bodies

in managing speech during public health crises is now more constrained (Sage and Yang). In

retrospect, it becomes evident how the increasing flow of false information has damaged the

reputation of public health officials and eroded society’s trust in them.

Do the consequences of misinformation and harmful speeches during life-threatening

situations justify limiting individual rights to protect public well-being? At this point, striking a

balance becomes crucial, especially in the context of the COVID-19 pandemic with its new

challenges and uncertainty.

While disagreements about personal beliefs and priorities are inherent in any society,

there is a clear distinction between debating trade-offs from which people can arrive at different

conclusions, and disagreeing about facts and spreading hurtful misinformation. In this sense,

there are constructive debates - for example, about supporting or not vaccine mandates - that

contribute to an expansion of our understanding and consideration of different points of view.

Yet, asserting that COVID-19 vaccines do not reduce the likelihood of contracting the virus or
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promoting conspiracy theories is what some people would consider the negative side of the First

Amendment - that is, the harmful spread of false information.

How can the government then control the spread of misinformation without stifling

enriching debate? Do public officials need to pass laws to prevent members of the scientific

community from sharing false medical advice or misleading information? This might prove

challenging as the government cannot infringe on the right to free speech protected by the First

Amendment of the US Constitution. Moreover, the courts interpreting the First Amendment have

not assigned special status to “professional speech” (Sage and Yang). Should the fact of being

subjected to government oversight and discipline as a condition of professional licensure

constitute a waiver of the right to speak freely? In the early stages of the pandemic, for instance,

the Federation of State Medical Boards asserted that “providing misinformation about the

COVID-19 vaccine contradicts physicians’ ethical and professional responsibilities and,

therefore may subject a physician to disciplinary actions.”5

At this point, there is a fine line between the right to speak freely and knowingly

spreading hurtful and misleading information. Similarly, there is a delicate balance between the

government’s attempts to reduce or prevent the spread of false information and its potential

inclination to control speech for reasons other than those related to public health or welfare. In

any case, the government has to demonstrate a “compelling interest” to justify restricting a

doctor’s speech, ensuring that its action is “narrowly tailored” to prevent potential harms arising

from that speech (Brown). Consequently, “the goal is to allow doctors to participate freely in

public debate, and to prevent the government from imposing a single view of disputed matters,

5
Spreading covid-19 vaccine misinformation may put medical license at risk. FSMB. (2021, July 29).
https://www.fsmb.org/advocacy/news-releases/fsmb-spreading-covid-19-vaccine-misinformation-may-put-medical-l
icense-at-risk/
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and from overriding the rights of citizens to hear all sides of a debate and come to their own

conclusions” (Brown).

In this way, “First Amendment rights protect individuals against the government, not

against other individuals, private organizations, or businesses” (Sage and Yang). It is uncertain if

the courts would, for example, validate laws that forbid private healthcare organizations from

taking disciplinary action against professional employees or affiliates for irresponsible or

inaccurate COVID-19-related speech. This is because such laws could simultaneously impose

restrictions on the speech rights of these private entities.

Furthermore, the government cannot restrict health professional speech that is unrelated

to patient care, whether the speech is false or misleading or has an impact on public trust in

health professions. Nor can it penalize speech directed towards the general public rather than

patients (Sage and Yang). Thus, when expressing themselves outside their role as doctors,

medical professionals have traditionally benefited from the free speech protections of the First

Amendment.

However, while prohibiting the government from restricting speech, the First

Amendment does not inherently protect individuals from subsequent sanctions based on the

content of their speech. For instance, a malpractice suit would not be invalidated when it arises

from negligent medical advice or a lack of informed consent. Still, it is unclear if this pattern of

action would have helped prevent misinformation during the pandemic, and it is argued to

potentially induce self-censorship in speech.

Balancing Boundaries: Misinformation, Free Speech, and Freedom of Information

Since the emergence of the COVID-19 pandemic, a surge of misinformation has

undermined the public’s ability to identify reliable sources and accurate data that would help
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them better understand this situation and enable them to make their own informed decisions.

What is the government’s responsibility in these situations? Where is the line between protecting

public health and safeguarding First Amendment rights?

In this context, the right to access information holds particular significance when the

information is of public interest. For this reason, not only does this right extend to information

held by whistleblowers (public health experts and medical providers), but international law also

favors their protection.6 When governments silence these individuals, they then breach their

obligations under the International Covenant on Civil and Political Rights (ICCPR), thereby

jeopardizing public health (Pomeranz and Schwid). In this sense, violations of international law

occur when governments criminalize journalism or prosecute truthful expression or criticism of

the government. In the early stages of the pandemic, the U.S. government removed two

high-ranking federal health officials who had reported testing delays, shortages of medical

supplies in hospitals, and expressed disagreement with the president’s recommendations

regarding the efficacy of hydroxychloroquine.

In this regard, although laws of various strengths were previously enacted to safeguard

free expression, “including the right to information in the public interest held by public

authorities,” the U.S. government may have deviated from these commitments “in the name of

addressing COVID-19 misinformation” (Pomeranz and Schwid). From this perspective, freedom

of information is then an integral component of the fundamental right of freedom of expression.

According to the United Nations, government-imposed restrictions undermined the right to

expression itself in many countries. These restrictions were deemed unnecessary and

6
United Nations General Assembly. “Promotion and protection of the right to freedom of opinion and expression.”
A/70/361, (2015).
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disproportionate to the public health threat, lacking a clear aim at achieving legitimate national

security or public health policy objectives.7

On the contrary, it is also argued that there is a pressing need for collective action to

preserve freedom of information while simultaneously safeguarding public health, considering

that, for example, fake news can lead to life-threatening behaviors (Marco-Franco, et al). In the

United States, fake news is “considered a major problem in 68% (65 or older) to 80% (18 to 29

years old) of American citizens, and somewhat of a threat or a serious threat to democracy in

88%.”8 In addition, social media platforms bear partial or significant responsibility for the

propagation of fake news in 89% of cases, and 69% of individuals believe that these platforms

are inadequately addressing the spread of false information.

In light of this, should regulations be implemented? Furthermore, when does the

government need to intervene, and how can it ensure it doesn’t overstep its role and infringe on

people’s rights? In some cases, legal avenues may exist for combating misinformation that poses

a threat to public health. However, rather than relying solely on administrative measures and

policies restrictions, citizens, as indicated in surveys, appear to prefer combating fake news

through informational campaigns and collaborative initiatives involving the government,

associations, and news outlets (Marco-Franco, et al).

What’s more, in terms of those legal pathways, they have proven ineffective in enabling

the government to regulate misinformation and speech during the pandemic. The Supreme

Court’s general stance is that false statements can serve a valuable purpose by allowing

individuals to challenge widely held beliefs without fearing repercussions (Beckstrand). Not only

are there potential risks associated with granting the government broader regulatory authority

7
United Nations Human Rights Council. “Disease pandemics and the freedom of opinion and expression. Report of
the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression” (2020).
8
Gallup-Knight Foundation. “Americans See Media As Key to Democracy But Increasingly Don’t Trust It” (2018).
 Vilches Arguello 11

over such statements, but there are also several challenges in practice. Firstly, it is unclear to

what extent something must be demonstrably false for it to be subject to restrictions. Is it a

matter of being false, or is it merely not demonstrably true? Does this distinction hold any

significance? Secondly, in the realm of scientific claims, the knowledge base that categorizes a

statement as true or false evolves over time. Third, some individuals disseminating false

statements knowingly lie, while others genuinely believe in their truthfulness. Lastly, a

significant portion of the population lacks trust in the government’s ability to wield the power to

declare a statement as false speech without potential abuse (Beckstrand).

Hence, these challenges lead the Supreme Court to hesitate in restricting speech that

might eventually prove truthful or, at the very least, contribute to public debate and the pursuit of

truth. In this way, the Supreme Court would prefer to allow the determination of what’s true to be

contested in the “marketplace of ideas” (Beckstrand). Yet, this approach restricts the

government’s array of policy tools. Instead of directly addressing misinformation about

COVID-19, the government was confined to combating it through counter-speech. While the

notion that conflicting ideas will bring forth the best ones may be attractive to judges, it does not

always translate effectively in practice (Beckstrand). For instance, changing people’s false beliefs

stemming, in particular, from vaccine misinformation poses significant challenges. “In the case

of COVID-19 vaccines, misinformation has led as many as 12 million Americans to forgo

vaccination, resulting in an estimated 1,200 excess hospitalizations and 300 deaths per day,

according to Johns Hopkins’ Center for Health Security” (Beckstrand).

Nevertheless, there are various arguments against the idea that censorship or speech

restrictions would help in reducing vaccine misinformation; instead, those initiatives might

inadvertently exacerbate it. On one hand, attempting to silence anti-vax groups may
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unintentionally suppress individuals with legitimate questions, compelling them to withhold their

concerns out of fear of shame or ridicule. Not only could it foster greater suspicion of public

health authorities and lead individuals to sympathize with the anti-vax rhetoric, but it can also

stifle enriching debate and hinder our capacity to learn and discover new information. On the

other hand, this approach is unlikely to dissuade those who already resonated with such

messages; rather, it could strengthen their deeply held convictions regarding vaccine conspiracies

and heighten their skepticism toward public health authorities (Armitage).

In this respect, a U.S. appeals court determined that various government entities,

including the White House, the FBI, the Surgeon General, and the Centers for Disease Control

and Prevention, infringed upon the First Amendment by exerting pressure on social media

companies to regulate their content concerning vaccine misinformation (Swanson). This ruling

supports those who have consistently contended that the government has excessively pressured

social media companies to align their content decisions with government opinions. In response,

the Administration stated that they had promoted “responsible actions to protect public health,

safety, and security when confronted by challenges like a deadly pandemic,” and that their “view

remains that social media platforms have a critical responsibility to take account of the effects

their platforms are having on the American people, but make independent choices about the

information they present.” Additionally, the Surgeon General characterized social media

platforms as being “one of the biggest obstacles” to controlling the COVID-19 pandemic

because they had “enabled misinformation to poison” public discourse and “have extraordinary

reach” (Swanson).

Finally, revealing one more dimension of this misinformation problem, the dissemination

of disinformation by government officials poses a particular challenge due to the general

expectation that governments will provide accurate information and helpful resources. Despite

the potential implications of leaders’ statements on public order, national security, and public

health, government officials’ speech within the context of their positions is typically considered

protected expression under international law (Pomeranz and Schwid). As a result, this protection

hinders any government obligation to address such false information, given the influential role of

these leaders in their respective governments. For example, President Donald Trump suggested

that ingesting hydroxychloroquine or injecting disinfectant, light, or heat might prevent or cure

COVID-19. In consequence, these disinformation campaigns, reaching large populations, have

widespread impacts by distorting public discourse and politicizing health and science.

Conclusion

In navigating the delicate balance between safeguarding public health during a global

health crisis and upholding First Amendment rights, the challenge lies in establishing trust in

science and the decision-making process without overextending scientific authority. It is then

imperative to strike a balance that respects individual freedoms while addressing compelling

public health necessities. In this sense, adopting rigorous scientific standards, transparent

decision-making processes, and the least restrictive measures necessary to protect public health

serve as crucial guideposts in maintaining this equilibrium. Notably, individual freedom is not

absolute and must be weighed against the broader public health imperatives.

When it comes to addressing COVID-19 misinformation and achieving a balance with

civil rights, a multifaceted approach is necessary. In this regard, protecting freedom of

expression, disseminating accurate information, safeguarding whistleblowers, and fostering an

independent media environment are paramount components to this. Government actions that

create uncertainty, disseminate false information, and foster an atmosphere of fear undermine
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public health efforts and drive people to seek information from less reliable sources. Instead,

governments should commit to providing clear, consistent, and transparent public health

messaging, acknowledging the uncertainties within the scientific community.

Still, even with these theoretical considerations, discerning the boundary between

preserving lives and safeguarding individual rights remains challenging in practice. Due to the

United States’ political polarization and the politicization of the pandemic, the evaluation of

government actions during this crisis is complicated, resulting in subjective and potentially

biased answers. Nevertheless, critically analyzing and challenging our experiences during this

crisis provides a valuable starting point. Learning from mistakes, understanding diverse

perspectives, and striving for improvement will be essential in preparing for future challenges.
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Works Cited

Armitage, R. “Online ‘anti-vax’ campaigns and COVID-19: censorship is not the solution.”

Public Health 190 (2021): e29.

Beckstrand, Sharon. “Does Free Speech Protect Covid-19 Vaccine Misinformation?” Stanford

Law School (2022).

Binford v Sununi, Order of NH Super Ct. Docket No. 217-2020-CV-00152. March 25, 2020.

Brown, Christopher. “Covid-19 Misinformation Tests Doctors’ Free Speech Rights (1).”

Bloomberg Law (2022).

Gallup-Knight Foundation. “Americans See Media As Key to Democracy But Increasingly

Don’t Trust It” (2018).

Gostin, Lawrence O., and Lindsay F. Wiley. “Governmental public health powers during the

COVID-19 pandemic: stay-at-home orders, business closures, and travel restrictions.”

Jama 323.21 (2020): 2137-2138.

Griffin, C. J., and Howard Pashman. “COVID-19 stay at home orders provoke first amendment

challenges.” NJ Lawyer 326 (2020): 26-31.

Marco-Franco, Julio Emilio, et al. “COVID-19, fake news, and vaccines: should regulation be

implemented?.” International journal of environmental research and public health 18.2

(2021): 744.

New York v New St Mark’s Baths, 497 NYS2d 979 (Sup Ct 1986).

Parmet, Wendy E. “From the shadows: the public health implications of the Supreme Court’s

COVID-free exercise cases.” Journal of Law, Medicine & Ethics 49.4 (2021): 564-579.

Pomeranz, Jennifer L., and Aaron R. Schwid. “Governmental actions to address COVID-19

misinformation.” Journal of public health policy 42 (2021): 201-210.

Sage, William M., and Y. Tony Yang. “Reducing “COVID-19 Misinformation” While Preserving

Free Speech.” JAMA 327.15 (2022): 1443-1444.

Slaughter-House Cases, 83 US 36 (1873).

Swanson, Ian. “Appeals Court Rules Government Likely Violated First Amendment in Vaccine

Misinformation Campaign.” The Hill (2023).

United Nations General Assembly. “Promotion and protection of the right to freedom of opinion

and expression.” A/70/361, (2015).

United Nations Human Rights Council. “Disease pandemics and the freedom of opinion and

expression. Report of the Special Rapporteur on the promotion and protection of the right

to freedom of opinion and expression” (2020).

Disclaimer: This paper utilized Generative AI, specifically ChatGPT, as a tool for grammar

checking purposes.