War Of Words Between Anti-Vaxxers Results In An Unconstitutional Gag Order
from the even-assholes-have-rights dept
Eugene Volokh, the EFF, and several members of First Amendment Clinic students and professors have filed a brief in a case involving an unconstitutional and apparently permanent injunction against an anti-vaxxer. Oddly enough, this injunction is the result of a civil action brought by another anti-vaccination activist. The details leading up to this "shut up" order are a bit convoluted (and explained in full at the Volokh Conspiracy) but the short version is this:
Anti-vaccination activist Kimberly McCauley blogs about her efforts and experiences. This includes frequent mentions of her daughter, who is now apparently being harmed by the state's vaccination requirements for students.
McCauley sued Matthew Phillips, a lawyer and another anti-vaccination activist. Apparently, Phillips believes McCauley isn't as anti-vaccination as she could be and has criticized her on Facebook. Phillips has also mentioned McCauley's daughter in his posts, but McCauley has put her daughter front-and-center in her anti-vaccination crusade.
While there is little doubt Phillips posts are antagonistic and filled with ridiculous conspiracy theories (the words "crisis actor" have been thrown around, along with accusations of shilling for pharmaceutical companies), it would appear the bulk of what he's posted is still protected speech. McCauley's full complaint can be read here and it details some disturbing trolling efforts by Phillips. This forms the basis of her request for a civil restraining order [PDF], which was granted, but demands nothing more than Phillips' silence on the subject of McCauley in perpetuity.
The trial court ordered Todd Phillips not to "post photographs, videos, or information about [Kimberly McCauley] to any internet site and to remove the same from any internet site over which he has access or control."
This is overbroad and a clear violation of the First Amendment, as Volokh argues in the brief [PDF]. It points out speech can be restricted for a handful of reasons, but this short order does more than deter future harassment. It effectively forbids Phillips from discussing any of his anti-vaccination efforts if they happen to include past (or future!) interactions with McCauley.
To be sure, there are some narrow categories of speech that can be restricted, such as libel and true threats of criminal conduct. And unwanted speech to a particular person can be restricted, which is why telephone harassment laws, for instance, are constitutional. But there is no general exception for opinions and accurate factual claims about a particular person. The injunction is thus an unconstitutional prior restraint.
This would be so even if the injunction simply suppressed purely personal criticisms; but here, the injunction is broad enough to cover a wide range of political advocacy as well, such as:
Phillips' writing a blog post that criticizes McCauley for her stance on vaccination laws, since any such criticism would necessarily include some "information about" McCauley.
Phillips' creating a Facebook page for a political campaign that advertises his commitment to anti-vaccination principles by recounting his past exchanges with McCauley.
Phillips' Tweeting about McCauley as an example of an anti-vaccination activist who has supposedly endangered her family through vaccination.
Phillips' criticizing McCauley on a Facebook page for seeking this injunction.
Phillips' criticizing the injunction online for preventing his speaking about McCauley, since such criticism would likewise have to include some information about McCauley.
Phillips' posting on an anti-vaccination message board that he is subject to this order, and explaining McCauley's rationale for getting the order, as a way of warning others about the possible consequences of their speech.
As is noted in the brief, speech that's unpleasant to the target isn't one of the narrow categories exempted from First Amendment protections. If McCauley finds statements libelous, she's welcome to sue. If she feels the speech constitutes criminal harassment, she can look to law enforcement for solutions. But what the court should not do is engage in prior restraint, simply because the speech appears to have disturbed the person bringing the complaint.
The brief cites prior Supreme Court decisions upholding speech deployed to ostracize others or coerce people into actions via public shaming. This has been held to be protected even if the target of the speech is a private individual.
Likewise, the inclusion of a minor does not automatically deprive it of First Amendment protections. Certain speech about minors is outside Constitutional coverage (child porn, sexually-themed speech directed at a minor), but what's covered here doesn't fall into any of these exceptions. The brief notes several state courts have struck down cyberbullying laws, finding the restrictions enacted to be unconstitutional, even when this speech is directed at minors.
As Volokh sums up, the order expands past the margins of First Amendment exceptions to effectively silence a citizen engaged in subject of great interest to many members of the public.
The injunction in this case bars Phillips from talking about McCauley, his political adversary, in the context of a heated debate on a public matter. It limits his ability to publicly explain his disagreement with her. It limits his ability to argue that she ought not be trusted. Indeed, it even limits his ability to condemn the injunction itself and her role in asking for this injunction.
This isn't about making sure unpleasant people with shitty debate skills can use Facebook to spread both ignorance and hate. It's about the fact our nation's free speech protections cover a whole lot of unpalatable speech. When courts blow calls on the First Amendment, bad things happen. They're not excusable just because they happened to bad people.
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Filed Under: anti-vaccer, injunction, kimberly mccauley, matthew phillips, prior restraint, vaccinations
Reader Comments
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To vax or not to vax .. that is the question.
We vax'd.
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Re: To vax or not to vax .. that is the question.
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If the anti-vaxer doesn't give their kid a vax, then they have to get their kids to contract the disease they don't want to vax for.
If they live after, they can go to school.
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the kid did not get a choice of which fucked up parent they got!
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how about you go and rattle of jokes like this to parents that have lost a kid... and see how much they like your bull fucking shit "modest proposal".
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... No. People making jokes about making children suffer are not in the same boat as people making children suffer. The joke may be in bad taste but it's not going to kill anyone.
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https://en.wikipedia.org/wiki/A_Modest_Proposal
BTW, you appear to be way too sensitive and might want to seek psychiatric help. Seriously :/
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Lets put it to the test.
How about if the same joke was made against a minority protected class. Would you say the same? Because if that is the case, there are a couple of political parties that are in serious need around here.
If you dislike that I have a negative reaction to joking about playing Russian roulette with children and diseases maybe you are the one that need the help.
Many a true word is spoken in jest. How much farther does a person joking about harming a child need to go before they have become willing to do so?
How a person thinks about the issue is often a telltale sign...
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If your only reaction is to call a person's sanity to question when they do that to you, then perhaps you are the one in need of some therapy. These diseases are nasty and horrifying to watch and deal with. A good ole joke about visiting them upon children for political currency smacks of someone that has spoke before they took a moment to think about it!
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This is literally what the OP was doing.
So it's ok for you to do it but not him? Double standards much?
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"fuck you"
is as serious as
"If the anti-vaxer doesn't give their kid a vax, then they have to get their kids to contract the disease they don't want to vax for."
In my reponse... no one has to risk death... So while I DID propose a harsh response "intentionally" so, you have to have a lot of extra intellectual dissonance to advance the notion that fuck you comment is comparable to satirical joke about kids dying from disease.
Sure, I DEFINITELY got where he was coming from with or without the proper understanding of his reference.
I am just saying that the way he said it... clearly looks pretty bad to a passing read, earning him a resounding fuck you. I did not say hid life should be threatened in response, I just made it clear that his approach to the "extreme opposite" was far more tasteless than mine!
Is that clear enough for your meager mentality? You guys need a lesson in balance. You clearly show that it is okay to go extreme when it suits your purpose. I didn't even get as extreme as they did in the opposite direction and somehow I am the bad guy.
think about that!
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And there is the rub. You don't get it. Is it a joke? Not quite, it's satire.
Here's a quote from Swift's "A Modest Proposal."
"A young healthy child well nursed, is, at a year old, a most delicious nourishing and wholesome food, whether stewed, roasted, baked, or boiled; and I make no doubt that it will equally serve in a fricassee, or a ragout."
Was he serious about eating children to relieve poverty? No
Was I serious about exposing children to life threatening diseases? Well, I started out say I had a 'modes proposal'.....Can you connect two dots?
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I never suggested this, nor meant to. Extremes can be relative. You brought up the idea of using an opposite extreme to drive home a point. You are complaining that someone did the same thing you did but somehow it's ok for you to do it. The fact that one is not "as serious" as the other is irrelevant.
That did not seem to be the case given your earlier posts. Hence why we are where we are now.
Matter of opinion.
This is exactly what you are doing. Hence, double standards.
The guy used satire to drive home a point, he was in no way serious and was not joking about the matter. Merely trying to highlight the lunacy of NOT getting vaccinated. Your response was an "extreme" overreaction.
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The post contained an explicit reference to the most famous work of satire in history. And several replies to you pointed it out, before my reply. I also provided a Wikipedia link, where you could've educated your ignorant self, but you are obviously not much of a reader.
"In English writing, the phrase "a modest proposal" is now conventionally an allusion to this style of straight-faced satire."
There is no "joking about harming a child". None. The very presence of the phrase "modest proposal" means that it's a parody of the position that the writer very strongly opposes. Ergo, the comment should be understood as "anti-vaxxers are fucking animals that hurt their children".
Of course, the comment is so over-the-top it should be understood that way even without the phrase in question, but it's presence makes it crystal clear even for idiots.
Well, most idiots.
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Like neanderthals? I see you have no problem doing the same thing you decry others for doing. What's the word for that again?
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It was and is horrific. That is the point, to go so far as to make people react, and hopefully start to rethink things.
This modest proposal is in the same vien. The core conciet of Anti-Vax (ignoring any debates into the merits of their claims) is that the low risk of harm from Vaccines, like Autism, is somehow worse then the risk of death from the diseases we vaccinate for primarily because of their horrific death tolls.
So Barron von Robber chose to list a modest proposal, to hit home what it used to be like before vaccines and herd immunity limited infection rates, so to perhaps shock the reader into looking at what Anti-Vaxcers open their child up to. If you ever hear the words "A modest Proposal", assume that the content following it will be shocking, and over the top.
Its not a joke gaining value from its shocking nature. Its commentary, and the shock is the point.
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However, the admonition would best be to say to anti-vax crowd that they are risking their children's lives MORE by not giving them vaccines. But it looked to me that he was more or less saying that children should be subjected to these diseases so that they will either become immune or die from them so that the rest can "feel" safer.
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> *I've a modest proposal.*
On another note:
> *children should be subjected to these diseases so that they will either become immune*
This is literally an argument some anti-vaxxers make. Instead of getting the chicken pox vaccine, they deliberately expose their children to someone who already has it so they will contract it and get an immunity "naturally". What kind of sense does that make?
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I see... how fair of you to force the problem of clarity onto the recipient instead of the person attempting to provide such clarity without reference.
"This is literally an argument some anti-vaxxers make. Instead of getting the chicken pox vaccine, they deliberately expose their children to someone who already has it so they will contract it and get an immunity "naturally". What kind of sense does that make?"
Okay, hold up, you have red about how vaccines work right? They are either inert, partial, or weakened parts of the real thing to give your body a much higher fighting chance against these diseases.
Sure I would question the sanity of a parent that would refuse vaccines for their child but fear does that to people. It is better to understand that fear and help them out of it.
Would you treat a person about to commit suicide the same way? These parents are about to risk suiciding their kids, how about your have some compassion and stop brow beating a bunch of people reacting out of fear... you have become nothing but bullies in response!
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....I'm not sure how many times or ways I can say "He did provide reference in his first sentence". How are you not understanding this?
Yes I understand how vaccines work. What does that have to do with my statement essentially stating that it's absolutely crazy to expose yourself or your child to the full strength disease in order to gain an immunity to it?
You seem to be confused. First you berated the OP for "joking about killing kids with disease", despite the fact that he was using satire to drive home the point that not getting vaccinations is crazy, and now you're berating us for not being more sensitive to the parents who are ostensibly forcing these bad situations on their kids? Which one is it?
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Oh, wait, didn't happen.
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Actually it was just an essay.
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I am bitching about him even joking about intentionally subjecting a child to the risk of death to teach a parent a lesson. I bet the joke was racial you would have a different opinion wouldn't you?
You fucks don't seem to say or do anything without working it through your double standards filters first... so shut your pie hole!
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Allow us to introduce you to the concept of satire and taking a concept to its logical conclusion to prove how silly and ridiculous said concept is.
(Disclaimer: the internet may cause high blood pressure in those who are easily offended. Please consult your doctor prior to using the internet if you suffer from this condition.)
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You have a long way to go before you can offend a person like me. I am not offended by a person using satire or a small child in the argument. I just think they are fucking assholes and tell them to fuck off. Is that easy to figure out for ya?
I think people are well equipped to understand risk at a rudimentary level. The problem comes down to knowledge. If the pro-vax crowd is going to do nothing but bully the anti-vax crowd then what you doing is perpetuating the divide.
Stop being little tards and get off your satirical high horses and help them understand that hey... maybe a vaccine will cause harm to your child, but the risk for not doing so is actually greater than not giving them a vaccine. People do all sorts of risky things like smoking while pregnant, doing drugs will trying to conceive, drinking alcohol, or not taking a folic acid rich multivitamin while sexually active to prevent deformities, but people still take these risks.
Help them understand this, don't run around advancing satire that their children are going to die horrible painful deaths or survive with possible heath issues their entire life.
I can't think of a single time satire has helped, can you? Satire is great for theater, but terrible for debate because it reeks of condescension and disrespect.
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For someone who can't be offended that easily, you sure are pretty offended by every single comment on here.
Well, I don't know, there's these: https://en.wikipedia.org/wiki/Satire#Age_of_Enlightenment
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This is just...sad.
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yep... the good ole first step down the slippery slope.
"think of the children" and surrender your rights like they never existed!
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Since the 1st does not have an exception for "except when kids are involved" then you either amend the constitution or you obey it. As long as we keep allowing things like this for "political expediency" you get what we have now... people more than willing to let constitutional protections fail just because a morally reprehensible person would be defended.
And people wonder why the government is just blatantly ignoring the Constitution like it never mattered? We gave them explicit permission AND encouragement to ignore the constitution when it serves our political morality.
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"then you either amend the constitution or you obey it"
Don't give them any ideas. :)
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It's pretty annoying when you find yourself supporting obnoxious people.
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"I disapprove of what you say...
...but I will defend to the death your right to say it". I would say Voltaire is spinning in his grave, but... it turns out that would actually be Evelyn Beatrice Hall.
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That rule may not mean what you think it means.
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Emergency nonsense
I am the kind of person whom you would presume to champion with this nonsense and I would rather you NOT completely pervert my liberties and those of my heirs.
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