"Can Speech Policy Protect Public Health?" to Appear in Utah Law Review

Using Speech to Address Public Choice Problems

Together with Cassandra Burke Robertson and Zoe Robinson, I wrote a new piece forthcoming in the Utah Law Review and whose draft is available here. The abstract is as follows:

Government speech shapes public health outcomes, yet political incentives often lead officials to either remain silent about emerging threats or subordinate scientific evidence to partisan goals. This Essay examines how three factors interact to influence public health: the constitutional status of health-related speech, the political economy of public health policymaking, and the modern information environment. Drawing on insights from public choice theory, we demonstrate how misaligned incentives lead political actors to avoid communicating about health risks or spread misinformation that serves their short-term interests at the expense of population health. The conventional tools of public health policy were developed when official sources could effectively shape public understanding, but today's fragmented information landscape demands new approaches to health communication.

This Essay analyzes both the constitutional framework governing health-related speech and the practical dynamics that complicate effective public health messaging. We propose specific mechanisms to combat harmful misinformation while creating stronger incentives for accurate government communication about health threats. Throughout, we move beyond binary debates about censorship versus free speech to develop approaches that reflect the complex relationship between information flows, political incentives, and public health outcomes. The history of public health challenges—from the AIDS crisis of the 1980s to today's emerging strains of avian influenza—shows how institutional responses often falter. Understanding these dynamics can help shape better responses to current and future health crises.

Comments

[Speaking for normal people]

Irina, I will give you the benefit of the doubt here but you sound just like Biden with the Government Disinformation Board, something hated all across the political spectrum.All you are doing is putting some nebulous public good/common good against unalienable rights of the individual. Madison warned that the Tyranny of the Majority would try to silence people in the very way you are arguing.

[Lee Moore]

For those whose time is scarce, let me precis this for y'all.

1. Reagan bad.
2. Trump very bad.
3. Free speech doubleplus bad.
4. Swamp good...
5. ....but dangerously influenced by voters. Must be further insulated from outside influence.

[Malika]

Record billionaires in cabinet, not swamp of course 🙂

[Ken Arromdee]

I noticed that the prime example in the paper given of maybe true maybe false speech about COVID is an obscure idea about COVID and T-cells. The phrase "lab leak", a much more famous one, does not appear in the paper. As far as I can tell, neither does "hug a Chinese person" or the original about-face on masks. The whole thing is also full of left-wing talking points, including "Female black journalists and politicians get sent an abusive tweet every 30 seconds" which doesn't even *try* comparing it to what men get (quick, does Trump receive an abusive tweet more than every 30 seconds or less?) Biden's censorship of social media is not mentioned, either, even though some of it was about COVID.

[Stephen Lathrop]

Arromdee — Johnny on the spot to deliver the QED to Manta's point about anti-science political pressure. Which will prove catastrophic if, for instance, mutated pandemic measles arrives, with its historical capacity for contagion renewed for everyone, and coupled to the kind of deadly outcomes the original version inflicted on the naive immune systems of indigenous Americans.

Arromdee is perhaps incapable to grasp that the lab leak theory has never been a scientific hypothesis supported by evidence. It has always been a political excuse, intended to distract from Trump's bungling mismanagement of the pandemic.

Why can't Aromdee grasp that? Precisely because internet publishing which bypasses prior editing makes it look to Aromdee as if an excuse which feels good to him politically is also widely supported as scientifically plausible.

The problem Manta mentions and Aromdee ignores is that neither plausibility nor widespread popular support mattered at all. In the case of Covid, even certain knowledge of the source of the pandemic would have contributed little or nothing to the question what public health counter-measures were best from a public health standpoint.

Covid turned out to be a terrible example upon which to base future-oriented public debates about public health. Covid's capacity to kill more than a million made it formidable. But its tendency to spare from serious danger most of the population tended to suggest validity, low risk, and even salience for actually crazy anti-public-health arguments.

[F.D. Wolf]

Well, I have read the article and assess it as mostly crap. Did you know Ronald Reagan is responsible for the AIDS epidemic? If you didn't, this article goes out of its way to hit that point five or six times.

While Donald Trump and Elon Musk are singled out for blame in COVID deaths, one name curiously absent from the article is Anthony Fauci. It's easy to pinpoint the exact moment the CDC forfeited any ounce of credibility and shattered public trust in government health officials: when, after months of demanding everyone close their business and isolate indoors, it announced it was permissible to gather to protest the death of George Floyd because racism is a more dangerous virus than COVID.

"Science"!

[Homeros]

A sterling example of the naivete of our educated elite.

The neurologist who correctly diagnosed a disorder my wife has, that had been undiagnosed by some of the finest specialists in NYC, told us the sad, but difficult truth: Medicine is messy. My wife's condition affects millions of people, and the understanding of it has not truly penetrated our great hospitals after 20 years. This is true of much medical discovery. Truly great doctors gave us misinformation just last year.

As a classicist, it remains true as rain what the great poets told us in the beginning, language and communication are 'messy', certainly messier than medical knowledge. The interface of medicine and communication is a great topic, but not for the typical academic. Academics are rewarded for saying what is popular, not for saying what is true and insightful.

This article is a great example of the miseducation of America's elite, and the waste of so much time, money and talent to produce nothing of value.

[Just Eric]

"content moderation policies that leave room for scientific debate while restricting the most harmful forms of health misinformation"

How many time do we need to see false claims of "misinformation" and "debunking" to stop trusting any self-described arbiter of truth--inhumanely err-less? We need more humility from public health officials and private practitioners/communicators alike, and it is hard to trust a medical community which has yet to start reckoning with parallels between 20th century sterilization and lobotomization practices and 21st century transgenderist delusion-affirming interventions. "Community notes" approach seems more promising than central moderation for those who still care to think for themselves with as much info as possible.