Is there a First Amendment right to advocate against getting vaccinated for COVID-19, or for defying social distancing requirements, or for achieving herd immunity through mass infection?

Before going further, this disclaimer: I’m not a lawyer. Although I have a strong lay background in First Amendment law, I’m no match for someone with real expertise, so I recommend you take what follows as speculative rather than definitive.

In Schenck v. United States (1919), Justice Oliver Wendell Holmes, Jr. famously argued that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” The crowd would stampede, leading to gratuitous injury and death. Pandemic defiers and Darwinists are not yelling fire. They’re yelling the opposite, i.e. that there’s not enough danger to justify emergency action. But the result of their speech is the same: gratuitous injury and death.

On a grand scale.

Consider the consequences of striving for herd immunity. According to the Centers for Disease Control, so far the U.S. has had over 19 million cases of COVID-19, roughly 5.7% of the population. To achieve herd immunity, especially now that the virus has evolved more contagious mutations, Dr. Anthony Fauci and others suggest we need a 90% infection rate. That means a nearly sixteen-fold increase in cases. So far, the CDC says 334,000 Americans have died from COVID-19. Multiplied sixteen-fold, that’s roughly 5.3 million deaths.

Those are Holocaust numbers — thousands upon thousands of panicked theaters.

Holmes argued in Schenck that “The question in every [free speech] case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger . . . .” Since then, in Hess v. Indiana (1973), the Supreme Court has more narrowly defined “clear and present danger.” Gregory Hess, while demonstrating against the Vietnam War, was pushed off the street by police, then arrested for shouting “We’ll take the fucking street again!” The Supreme Court overturned his conviction for disorderly conduct, stating “The words he used were not directed to any person or group and there was no evidence that they were intended and likely to produce imminent disorder.”

That’s quite a hurdle: proving that pandemic defiers and Darwinists are directing their words at a specific person or group with the intention and likelihood of producing imminent disorder. Perhaps that’s why no one I’m aware of has gone after private parties (I can see exempting public officials on grounds of qualified immunity) for a free speech violation.

But it might be worth trying. When the digital security firm Smartmatic was smeared by wingnut conspiracy theorists alleging vote count fraud in the 2020 presidential election, Smartmatic threatened litigation — and respondents, including Fox News, hastily backpedaled.

Like Smartmatic, victims of pandemic defiers and Darwinists have the facts. I’d love for a few of them to test whether they have the law, too.

Justice Oliver Wendell Holmes, Jr. circa 1930.

Former Risk Manager at UC Berkeley, author of four books, ectomorphic introvert.