LISBON, PORTUGAL - 7 NOVEMBER 2017: Dr. Oz, heart surgeon & television personality speaks at the Web Summit, Lisbon.

The Dr. Oz Paradox

By Claudia E. Haupt

Why does the law sanction giving bad advice to one patient, while it permits giving bad advice to millions of YouTube or television viewers, which may result in significant physical harm?

We might call this the “Dr. Oz paradox.” Dr. Mehmet Oz, the Republican candidate in Pennsylvania’s U.S. Senate race, is a famous television personality as well as a licensed physician. But, according to one study, half of his publicly disseminated medical advice is wrong. Yet, his sizable audience may very well follow it anyway, and perhaps suffer harm as a result. Such bad advice, which could get any doctor in legal trouble if disseminated to their patients, may be given to the public at large without fear of sanction. The consequences of this sharp doctrinal distinction can be quite jarring.

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lady justice.

When Health Advice Is Hard to Come by, BIPOC Suffer the Consequences

By Claudia E. Haupt

The COVID-19 pandemic has highlighted the tradeoffs at stake for Black, Indigenous, and people of color (BIPOC) seeking reliable health advice.

While there are legal safeguards to ensure reliable health advice within the confines of the doctor-patient relationship, outside of that relationship, the First Amendment protects bad advice just as much as good advice.

Courts continue to interpret the First Amendment in an expanding, deregulatory manner and the health context is no exception. For example, one novel judicial interpretation challenges previously accepted applications of the police power in furthering public health. In a forthcoming article, “Public Health Originalism and the First Amendment,” my colleague Wendy Parmet and I explore some of the dangers associated with this deregulatory approach.

Overall, the beneficiaries of these recent developments tend to be powerful speakers. The costs have largely fallen on women, as seen for example in NIFLA v. Becerra, and those who lack access to reliable medical advice, who are disproportionately BIPOC. Current First Amendment doctrine thus has the dangerous potential to further exacerbate existing racial disparities in health.

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Bill of Health - Mask with "misinformation" written in it with a "stop" above on a gray background, covid misininformation

Emergency Measures: Free Speech and Online Content Moderation During Coronavirus

By Jeremy Dang

In the chaos and confusion of the coronavirus pandemic, few have stopped to notice or second-guess the unprecedented role that online platforms have assumed in the past few months. Among the few who have, fewer still have looked beyond the pandemic and questioned what is truly at stake. In a matter of years, social media has become an essential, indispensable part of how we relate to each other and the world around us, and the power of online communication is now undeniable. Today, a tweet or a Facebook post can quickly reach vast personal, social, and even political networks, and online communication has even facilitated important national and global movements. But during a global pandemic, when staying informed can mean the difference between life or death, the power of online speech takes on a new urgency, and the dangers of pernicious speech can quickly become lethal. In a pandemic, misinformation is not abstractly disruptive or potentially harmful, but immediately dangerous in obvious, devastating ways.

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