On April 21, Missouri Attorney General Eric Schmitt filed a lawsuit against China for having “deceived the public” about COVID-19. The complaint, which names the Chinese Communist Party, the Wuhan Institute of Virology and other government-run entities as defendants, puts Missouri in the unenviable position of being the first state to sue a foreign nation demanding damages for economic and non-economic losses associated with the pandemic. But Missouri is not alone. A putative class action was brought nearly simultaneously in New York against the World Health Organization, also seeking damages for “injury, damage and loss” caused by COVID-19.
In addition to tracing the early history of the Missouri and New York suits, in this post we explain how these high-profile lawsuits are being used as conduits for misinformation in ways that are likely to accelerate the crystallization of misinformation and their recurring sources. Moreover, these lawsuits add to the ongoing instrumentalization of the individual and collective hardships created by a major public health crisis as a tool to further ideology – as has happened recently in Texas in connection with abortion rights throughout the duration of the pandemic.
The Missouri Lawsuit Against China
The Missouri suit invokes exceptions to the Foreign Sovereignty Immunities Act (FSIA) as a way to pierce China’s sovereign immunity, and seeks compensatory and punitive damages for the impact of COVID-19 in Missouri. Procedurally, the lawsuit rests on shaky ground. The rule of thumb under FSIA is that foreign states and governments cannot be sued. Precedent and caselaw on FSIA do not indicate that the United States – let alone a state – can use the commercial or tortious exceptions to sovereign immunity under the facts pled in the complaint. We have gone into some of the procedural components of the case in a short essay here. In a nutshell: the events that Missouri AG Schmitt attempts to frame as actionable include lab work on the virus (a topic we return to below when addressing misinformation problems), China’s failure to quarantine and impose travel restrictions early on, and hoarding personal protective equipment. While it is undeniable that China’s response to the outbreak was far from flawless – and that some of these actions have economic ripple effects – neither the commercial nor the non-commercial tortious exceptions cover a country’s discretionary actions in the course of governing, including the response to a public health crises.
The problems with the Missouri lawsuit, however, run much deeper than poor procedural grounds. In addition to raising delicate federalism questions and interfering with the federal government’s political and diplomatic relationship with China (incidentally, our largest creditor), we have a state deciding to spend its already very limited resources on litigation that is unlikely to succeed and that constitutes a thinly veiled maneuver to draw attention away from its own poor response to the pandemic. Like several other states – and the federal government – Missouri reacted belatedly to COVID-19. For example, Missouri Governor Parson waited to close schools until after local school boards had individually made the decision to close, and was similarly slow in ordering business closures across the state. The lawsuit attempts to distract from the shortcomings of the state government by pointing the finger at a foreign government, and the lawsuit does so at the expense of misusing government and judicial resources.
The New York Lawsuit Against the World Health Organization
As finger-pointing has become a feature of the U.S. response to the pandemic, it is not surprising that the WHO has emerged as the other target in this budding wave of lawsuits attempting to conjure up legal liability out of claims with no legal salience.
While the procedural contours of the proposed class action are different from the Missouri case, the bottom line is similar. The International Organizations Immunities Act, even as recently interpreted by the Supreme Court in Jam v. International Finance Corporation, drastically limits the possibility of lawsuits against international organizations like the WHO in the United States. At the international level, the International Health Regulations have not established any mechanisms for compensation owed in connection with the spread of infectious diseases.
Nevertheless, residents of Westchester County, one of the epicenters of COVID-19 in the State of New York, claimed in Kling v. World Health Organization that the WHO mismanaged the response to the pandemic and misled the international community about “its devastating medical and economic effects” in a co-conspiratorial effort with China to “cover-up” the magnitude of the outbreak.
These claims closely mirror President Trump’s strategic approach to the pandemic and the toll of COVID-19 in the U.S. Finger-pointing at China and the demonization of the WHO leading to its defunding have been the preferred decoys to shift attention away from domestic shortcomings in the response to the pandemic. Missouri is using this technique at the state level, while the New York plaintiffs are propagating a significant strand of the Trumpian COVID-19 discourse through the seemingly legitimate avenue of judicial proceedings. Which brings us to our last point – the role of misinformation in the pandemic, as evidenced by the use of inaccurate information in these lawsuits.
Lawsuits as Conduits for Misinformation
For months now, there have been repeated warnings from international and domestic organizations about a misinformation “infodemic” related to COVID-19. The previous section described the instrumentalization of legal proceedings as amplifiers of blame-shifting discourses in the current pandemic. In doing so, the Missouri lawsuit further amplifies misinformation related to the pandemic and inscribes sources of misinformation into facially credible documents.
The complaint is peppered with references to multiple Fox News pieces that suggest that the ongoing outbreak is the product of virus-engineering in a Chinese lab. These pieces, published on April 15, 17 and 19, are the sole source of this information, and are not accompanied by any of the multiple pieces published elsewhere during the same period of time debunking this theory. What is more, Fox News itself published another piece debunking the theory on April 17, a full four days before the complaint was filed – a source which was left out by Attorney General Schmitt.
Even though the lawsuits are bound to fail as judicial artifacts, they are likely to leave enduring imprints well beyond the judicial arena, accelerating the crystallization of misinformation and its recurring sources. Their long-term effects might also prove costly: weaponizing the law to disinfect misinformation or to reframe a global pandemic as melodrama between villain and victim not only distracts from reality, but it also obscures the pressing need to change preparedness and response frameworks before the next pandemic.