Our friend Jay Bhattacharya (ep. 175) is at the center of a major lawsuit claiming that the Biden administration has used the censoring power of big tech companies to get around the first amendment protection of free speech.
Documents released as part of the discovery process and through prior FOIA requests seem to confirm beyond any doubt a direct collusion between the feds and tech giants to muffle, silence, or deplatform critics of lockdowns, mask policies, and vaccine mandates (such as Bhattacharya, co-plaintiff Martin Kulldorff, journalist Alex Berenson, and others). The plaintiffs stand a good chance of winning, and a win would be a huge victory against public health tyranny.
But the prospect of a win in defense of free speech—which I anticipate as quite likely—makes me ponder a strange modern cultural attitude that holds freedom of speech in higher regard than freedom from bodily harm.
One evidence of this is that vaccine mandates have been widely upheld as permissible by the courts, with almost no justification demanded of the governmental branches that impose them. In contrast, the right to free speech often prevails in the courts unless the government makes a compelling case in favor of censorship. There seems to be a lopsided protection of an individual’s speech as compared to the protection afforded to an individual’s body. I realize that free speech is enshrined black-on-white in the Constitution, whereas protection from physical harm is gerrymandered in various parts of it, but that’s precisely what I find peculiar.
To flesh this out a little more, vaccine mandates (which in the West go back more than a 200 years) have been accepted with hardly any opposition on principle from the public at large. Granted, there have been substantial anti-vaccination movements in the past, such as the anti-vaccination leagues of the early 1800s in England and similar ones a few decades later in the US and elsewhere. But past opposition movements were tied to specific vaccines and directed at their suspected harm. They were not movements supporting a “right” to bodily integrity.
Even now, the vast majority of those who oppose COVID vaccine mandates oppose them because they consider these particular mRNA vaccines risky or harmful, not because they are motivated by a principled defense of bodily integrity. Many current COVID vaccine mandate opponents do not, for example, voice opposition to school districts mandating the measles vaccines (although I hope that will change).
Likewise, the courts have invariably sanctioned vaccine mandates and given no legal space to a person’s right to bodily integrity in this context. When the US Supreme Court struck down the Biden’s administration COVID vaccine mandate, the rebuke was based on the fact that the administration had no legal authority to impose mandates on businesses. It did not assert that vaccine mandates per se could not be imposed, nor did it hint that the public health authorities must justify mandates before implementing them. The recent overruling of the NYC vaccine mandate was also on procedural grounds. As far as I know, courts have never restricted or even questioned vaccine mandates based on an implied right to bodily integrity, even as some states have made school mandate exemptions increasingly more difficult to obtain in the last few years.
Isn’t this odd? Under tort law, being jabbed against one’s will with a sharp object is naturally considered an assault, even if nothing at all is being injected into the body and even if the injury is minimal. A fortiori being injected against one’s will with a substance that permanently alters one’s cellular behavior should be considered a grave assault.
Yet the public health sector has essentially been granted free rein to simply decide, whenever it wishes, that to assault citizens with vaccines or ostracize them if they refuse is permissible. The courts never ask for a formal justification of the benefit of vaccine mandates. There is no presumption that citizens should be free from jabbing unless the public health bureaucrats can make a compelling case to jab the unwilling. That’s quite different from how speech censorship is treated.
But freedom from compulsory vaccination ought to be more worthy of defense than freedom from censorship, because the unvaccinated person is not doing anything and not threatening anyone. One would think that ought to be worthy of some principled protection. In contrast, the person who speaks is acting and therefore at least likely to do something that could harm others.
And some protected speech is clearly not harmless! In fact, depictions of pornographic, violent, explicitly vile things now omnipresent in public spaces–including schools–are arguably much more harmful to society at large than infectious disease outbreaks that are seriously harmful only for a minority of individuals. Yet such expressions and displays of immorality have been protected and facilitated by the courts precisely on the basis of a right to free speech. What accounts for the preeminence of the defense of free speech over that of bodily integrity?
In my view the answer lies in our deep-seated dualism, the often inchoate but ingrained belief that we are spiritual beings inhabiting bodies distinct from ourselves. What matters most is our consciousness, our thoughts, our feelings—and our speech that directly expresses all of that. The body is valued only in an instrumental way, to the extent that it serves the needs and purposes of the spiritual self.
Dualism is a belief that pervaded non-Christian cultures throughout history. Christianity held it back for a while but it never completely disappeared. It resurfaced prominently with the Protestant Reformation and, since the Enlightenment, has become rampant in Western societies. There is no clearer evidence of the current prominence of dualism than the rise of transgenderism, assisted suicide, and euthanasia, but modern dualism runs deep and informs many of the laws and institutions of liberal democracies. The privileged position that freedom of speech holds over freedom from physical harm is a manifestation of this dualistic frame of mind. We view censoring the speech as “canceling” the person, but jabbing the arm and injecting a substance that permanently changes the body is…meh…just a slight.
Dualism is a big topic and I’ll have more to say about it in subsequent posts.