Misinformation and a shifting majority in the Supreme Court add to the uncertainty for states fighting the pandemic. Photo By: William Rison.


By William Rison, JHBL Staff Member

Conspiracy theories dangerously erode the public trust in government institutions, and online platforms facilitate and amplify the proliferation of increasingly extreme theories. Algorithms on Facebook and YouTube are designed to funnel content that supports and builds upon existing beliefs.  Generated content uses an individual’s search terms and has gradually become more extreme by engaging the user for increasingly longer periods of time and exposing the user to more advertisements.  Online platforms, therefore, benefit from the wide dissemination of conspiracy theories because they generate more profit for the platform. “Conspiracy theories are difficult to displace because they provide explanations for events that are not fully understood, such as the current pandemic, play on people’s distrust of government and other powerful actors, and involve accusations that cannot be easily fact-checked,” said Kathleen Hall Jamieson, Annenberg Public Policy Center director.[1]

One might think that conspiracy theories have little impact on the world beyond an individual’s misunderstanding, i.e., believing the moon landing was fake or that the world is flat doesn’t affect others.  During a global pandemic, however, which requires a unified public action to mitigate the spread and to keep your fellow neighbors safe, an individual’s misunderstanding can have broad and severe consequences.  Getting vaccinated or even wearing a mask in public is just as much about protecting yourself as it is about protecting your neighbors.  Startlingly, a recent study found that only 62% of people who were most likely to believe conspiracies said they wear a mask compared to 95% of people who were unlikely to believe conspiracies.

To combat infectious disease, state actors have taken a broad range of actions in the interest of the general public.  At the base of state actions taken in the public interest is a Supreme Court holding in Jacobson v. Massachusetts.   In this 1905 case, the Court held that a MA law allowing cities to require residents to be vaccinated against smallpox was a legitimate exercise of the state’s police power to protect its citizens’ public health and safety.  The Court reasoned that local boards of health determined when mandatory vaccinations were needed, thus making the requirement neither unreasonable nor arbitrarily imposed.  The limited mandate fined an individual $5 for declining to vaccinate (equivalent to $140 today).

As recently as this past spring and summer, 5-4 majorities in the Supreme Court had declined to interfere when states like California and Nevada restricted the size of indoor gatherings to combat the spread of COVID-19, including religious services using the holding in Jacobson as precedent. However, after the passing of Justice Ginsburg and confirmation of Justice Barrett this November, the Court, in Roman Catholic Diocese of Brooklyn v. Cuomo, has gone in a different 5-4 split, upholding religious freedom as an overriding interest against New York State laws restricting religious services to less than 25 people. Justice Gorsuch, in his concurrence, reasoned that the Constitution does not go on “a holiday during this pandemic” and that the harm to the religious institutions was clearly visible compared to the benefits of the limitations in preventing the spread.

On top of the disinformation surrounding the deadly virus, there is now a Supreme Court willing to make religious activism a priority over state and local governments’ attempts to save lives in their communities. The Court goes out of its way to comment on New York laws that were rescinded before certiorari was granted, in order to draw a judicial exemption for future religious gatherings to the very restrictions health officials say are needed to combat the spread.  With the Supreme Court’s unsigned opinion, the judicial branch shows a concerning tip of the hat to religious entities, specifically violating restrictions aimed at the public’s welfare.

Facing unprecedented circumstances and a public conditioned to mistrust public health recommendations, every governor must now question whether the restrictions enacted to protect the public from the spread of a deadly virus will run afoul of the Supreme Court’s most recent decision.  Lower courts believed they had their precedent in deferring to legislative and executive acts informed by public health professionals, and now the Supreme Court has created uncertainty when collective action and guidelines are needed most.

Community health officials in New York City noted that there have been issues with mask compliance and social distancing because of misinformation spread and supported by the president, and broadly disseminated through social media.  President Trump indicated that masks are “a double-edged sword. People touch them. And they grab them and I see it all the time. They come in, they take the mask. Now they’re holding it now in their fingers. And they drop it on the desk and then they touch their eye and they touch their nose.”[2]  If the Executive is actively undermining the public health initiative combatting the virus, and the Supreme Court is adding greater doubt in the government’s ability to stopping the spread, I fear public health interests are no longer as interesting to the Court as adding a new vigor in supporting religious entities.


[1] Alter, Charlotte. “How Conspiracy Theories Are Shaping the 2020 Election.” Time, 10 Sept. 2020, time.com/5887437/conspiracy-theories-2020-election/.

[2] Blake, Aaron. “Analysis: Trump’s Dumbfounding Refusal to Encourage Wearing Masks.” The Washington Post, WP Company, 25 June 2020, www.washingtonpost.com/politics/2020/06/25/trumps-dumbfounding-refusal-encourage-wearing-masks/.


William Rison is a second-year law student at Suffolk University Law School and a JHBL staff member interested in Fourth Amendment Privacy Interests in Personal Health Information (PHI).  This fall, William interned for the Honorable Justice Frank Gaziano of the Massachusetts Supreme Judicial Court.  Prior to attending law school, William worked for Boston College, Tufts University, and Johns Hopkins University reviewing applications and recruiting students from around the world as an admissions counselor.  He graduated from The College of William and Mary with a Bachelor of Arts in American Studies in 2012.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.


Sources:

https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf

https://time.com/5887437/conspiracy-theories-2020-election/

https://time.com/5891333/covid-19-conspiracy-theories/

https://www.wsj.com/articles/supreme-court-blocks-covid-19-restrictions-on-church-attendance-in-new-york-11606369004

https://supreme.justia.com/cases/federal/us/197/11/#tab-opinion-1921099

https://reader.elsevier.com/reader/sd/pii/S027795362030575X?token=DBF45A06B14ED7E3E7CAEE3D4A17B085506ED8A7FDEE86856B2790A3A60C87C7885262A238F131978C83D3CEEC84BBBB

https://time.com/5362183/the-real-fake-news-crisis/

https://www.wsj.com/articles/trump-and-his-aides-have-long-downplayed-importance-of-face-masks-distancing-11601655164?mod=article_inline

https://www.washingtonpost.com/politics/2020/06/25/trumps-dumbfounding-refusal-encourage-wearing-masks/