So, historically, the key to determining the extent of an individual’s right to free speech under the First Amendment has been the classic example that one cannot “shout fire in a crowded theatre”. The social media analogy to that now is the use of a public platform to spew false, discredited and completely erroneous information about COVID vaccine efficacy and side effects to a vulnerable public.
I am a professor, and I place a tremendous amount of value upon the free exchange of information. But, at some point, when there are reams of evidence (!) that certain opinions are absolutely incorrect and, in fact, dangerous, lines finally must be drawn. I reached that point this week. First, I had a conversation recently with a person who argued that a person’s right to a “choice” about the vaccine must be honored. I acknowledged that conversation about diverging opinions is always a good idea, and then I informed the person that I had been teaching remote, and that my family had been in deep isolation for over 18 months because we have family members with health conditions that put them at imminent risk of death from COVID. Newsflash: when your “choice” endangers my kids’ health, your “right” to a choice disappears.
This weekend, the impact of the “choices” people are making was made even more evident to me. My daughter, who has an autoimmune condition, experienced a significant health event. She ended up in the Boston Children’s ER. Massachusetts is one of the most highly vaccinated states in the country. Yet, the ER was inundated with sick kids. They were lying in beds in the halls. She wasn’t seen for over 5 hours, and she wasn’t diagnosed for 20 hours. Boston Children’s stopped elective surgeries 6 weeks ago in anticipation of this. The ER staff was clearly doing their very best, but pushed beyond any reasonable bounds.
A close relative who is a pediatrician informs me her hospital has created pop-up urgent care clinics, or mini-ERs, in an attempt to handle the overwhelming caseload of sick kids. Right now, they are staffed by MDs who want to moonlight, but it is anticipated that hospital staff will be mandated to cover the increasing patient load. The hospital is consistently at “red” or “yellow” levels, meaning it either is at full capacity and cannot accept patients, or it is just below that level.
Recognize that, unlike the kids, the athletes who are voicing their opinions have “choices”. The kids don’t. The vaccine was only recently approved for them. They are dependent upon the responsible, mature decisions by the adults in this country, many of whom are simply making bad decisions. At this point, I think freedom of expression – and choice – should be subject to a condition subsequent. Fine. Don’t get vaccinated. But if you become ill, don’t expect to take a bed that can and should be given to an ill child. And if you, as a high profile professional athlete, continue to publicize false, damaging information that may persuade others to make bad choices (FULL STOP: THAT MEANS NOT BEING VACCINATED), the more rational general public can and should boycott any products you endorse, and your employers and sponsors should terminate your contract. Period. State Farm, are you listening?
Helen A. “Nellie” Drew is an expert in sports law, including professional and amateur sports issues ranging from NCAA compliance and Title IX matters to facility construction, discipline of professional athletes, collective bargaining and franchise issues. Drew formerly served as an officer and in-house counsel to the Buffalo Sabres of the National Hockey League, after previously working as outside counsel to the Sabres and the NHL. Among her more interesting experiences were assisting former USSR superstar Alexander Mogilny in obtaining asylum status in the U.S. and working on multiple NHL expansions, including San Jose, Ottawa, Florida and Tampa Bay.
Drew teaches a variety of courses that incorporate topics such as drug testing in professional sports and professional player contract negotiation and arbitration. She is especially interested in the evolving research and litigation concerning concussions in both amateur and professional sports.