Government's Free Speech Crackdown Risks Hampering Medical Innovation
As our knowledge about the COVID-19 virus has grown and shifted, so too has the guidance about what to do to stop its spread. That’s why the Biden administration’s new guidelines to halt the sharing of so-called misinformation are troubling: Not only do they pose a clear and growing threat to our free speech rights, they ignore the fact that what we know about public health is constantly evolving, and that being able to communicate freely about these changes and about medical innovations can make a life-or-death difference — for this virus and for many other diseases.
In a 22-page Advisory issued in July by Surgeon General Vivek Murthy, the White House characterizes misinformation as a “serious threat to public health” that has hindered vaccination efforts, encouraged opposition to masking, and led to the harassment of public health workers. To combat these problems, the Advisory, among many other troubling directives, instructs technology companies to “redesign recommendation algorithms to avoid amplifying misinformation,” strengthen “monitoring of misinformation,” impose “clear consequences” on those who communicate disfavored messages, and to “amplify communications from trusted messengers and subject matter experts.”
Nobody wants misinformation, of course. But we’re still learning about COVID — about its transmission, its effects on the body, and its long-term impacts. Medical experts’ understanding of COVID has changed significantly over the past 18 months, and so has their guidance regarding how to control its spread. Recommendations that seemed unconventional at one point in the pandemic became widely accepted months later. Even the Surgeon General’s Advisory acknowledges that that it’s “important to be careful and avoid conflating controversial or unorthodox claims with misinformation,” but it relegates that statement to a footnote. And indeed, it appears to be nothing more than lip service, given that the entire document aims to shut down opinions that don’t mesh with what the White House declares to be the “best available evidence.”
There are countless examples of how our understanding of conditions and appropriate treatments has evolved over time. Take Botox, for one: First developed as a treatment for two rare eye muscle disorders, it is more commonly known as a vanity product to turn back the clock on some types of facial lines. It is now approved by the U.S. Food and Drug Administration (FDA) for many conditions, including lower limb spasticity in children with cerebral palsy, chronic migraine, and overactive bladder. And clinical evaluation continues for additional indications. Similarly, our comprehension of COVID is developing, and a gag rule on any speech that contradicts the “best available evidence” might slow the learning process.
Furthermore, this new Advisory ignores the fact that there are already federal and state laws in place to punish fraud and deception. The Federal Food, Drug, and Cosmetic Act, for example, gives the FDA authority to pursue anyone who markets drugs or medical devices with false or misleading information. And the Federal Trade Commission already has power to punish deceptive and unfair acts or practices in any medium.
These laws are actively enforced. The FDA has established a COVID-19 Fraud Task Force and launched “Operation Quack Hack” to monitor potentially misleading information about the disease and potential treatments. As of mid-July, it had issued more than 180 warning letters to sellers, more than 300 reports to online marketplaces, and nearly 300 abuse complaints to domain registrars.
These are all praiseworthy undertakings. But they also prove that crackdowns on free speech aren’t needed to protect people against misinformation: We already have mechanisms to deal with such challenges, and they’re working as designed.
Free speech — not government censorship — has always been the best tool for combating misinformation. As Supreme Court Justice Louis Brandeis famously put it, “the remedy to be applied” for falsehoods or misunderstanding “is more speech, not enforced silence.” The new Advisory ignores the fact that in the act of choosing what speech to permit and what to limit, bureaucrats will inevitably bring their own biases to the table — biases that can only be counteracted by free and open public debate.
When it comes to understanding threats to our health, our knowledge does not remain static. Innovations evolve, as does the guidance about when, why, and how available tools can be utilized to protect ourselves. Therefore, government efforts to declare what is officially “true” can be dangerous: Public health directives change as new realities present themselves. Government’s free speech crackdown means that we may be slamming the door shut on needed information and tools, leaving our frontline healthcare providers who are most responsible for our care less able to swiftly adapt to those changes.
Dvorah Richman is a medical device regulatory attorney who has worked for various medical device companies. Naomi Lopez is the Director of Healthcare Policy at the Goldwater Institute.
