Given our right to free speech in the United States, most of us are uncomfortable—and perhaps enraged—at the idea of social media sites restricting the expression of our ideas and opinions. Although speech often has real-world implications, are there times when we should be more concerned about the sharing of potentially false or misleading speech? What about during a global pandemic—when the mass sharing of false information might suddenly become detrimental to human health and public safety? 

Coronavirus disease (COVID-19) is a novel respiratory virus that is currently spreading throughout the world. Most infected individuals will likely experience little to no symptoms at all. However, the virus can cause severe health complications for older individuals or those suffering from compromised immune systems. Perhaps of more concern is the worry that the sudden and rapidly spreading infection will leave many healthcare systems overburdened and unable to treat those with pressing medical issues that are caused by the virus and other medical conditions. 

People are panicking and rightfully so. However, panic is arguably at an all-time high due to our ability to rapidly communicate. Thanks to the internet, there are basically no limits on the amount and type of information that we can send and receive. On the one hand, it is incredibly important that reputable sources, such as the Centers for Disease Control (CDC), can communicate updated information about the virus—information that will ultimately educate the public and potentially save lives. On the other hand, social media has also given individuals the means to create unnecessary hysteria and spread misinformation, perhaps without even trying to do so.

Currently, social media companies have the sole discretion in regulating the presentation of content on their platforms. There is little federal or state regulation restricting these social media platforms from regulating user content. However, they have to comply with the Constitution. The First Amendment “guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely.” Under the First Amendment, hate speech (unless likely to incite violence), obscenity, and misinformation are also generally protected. Misinformation is defined as “false or inaccurate information.” Think “fake news.” While the First Amendment does protect false statements of fact, there are some exceptions to this, such as defamation.

While the breadth of First Amendment protection might be comforting, do we feel differently when individuals on Facebook or Instagram are sharing misinformation regarding COVID-19? What about if these individuals have a huge following and, therefore, the potential to reach millions of people with their posts? For example, model Kendall Jenner posted a series of statistics, known as the Data Pack, to her Instagram page. Jenner, who has over 18 million Instagram followers, received significant backlash. Responders claim that while the statistics Jenner posted are from the CDC and Johns Hopkins University, without proper context they seem to undermine the severity of the situation and encourage people to continue about their daily lives without taking proper precautions. These statistics arguably fail to capture the short and long-term economic effects of COVID-19 and the systemic risk on our healthcare systems as they become flooded with severe cases in the coming weeks. While Jenner probably had the best intentions, her post, and many others like it, could potentially discourage people from practicing preventative measures, such as social distancing. Given her high-profile reputation, Kendall Jenner is an easy example. However, there are other individuals who are spreading false or misleading information, such as “gargling with bleach will kill the coronavirus.” Although the spreading of misinformation is potentially dangerous, most people are likely just afraid and are trying to offer some sort of ease via comforting statistics and “cure-all” remedies. 

But can anything be done to improve the accuracy of the information on the internet as we prepare for the escalation of this pandemic? The government—aside from the fact that it is extremely occupied at the moment—is unlikely to pass legislation restricting speech on social media platforms. The judicial standard of strict scrutiny applies whenever the government seeks to implement a law that restricts a fundamental constitutional right. In order to satisfy the strict scrutiny standard, the government must first identify a compelling state interest. Here, that interest could be preventing the spreading of potentially dangerous information during a global pandemic. Second, the government must demonstrate that its legislation is “narrowly tailored” so as not to restrict the constitutional right more than necessary to achieve its intended goal. This standard is an incredibly hard one to pass in court, and given Congress’s current reluctance to pass legislation, I doubt that now is the time it will start. Furthermore, regulating speech is a very tricky matter. What counts as false speech—someone’s opinion you do not agree with? Or a Jenner-like statement that is technically true but misleading? 

So, what can individuals do to share information responsibly while simultaneously preventing ourselves from succumbing to coronavirus falsehoods and myths? 

1. Stay up to date with the development of the global response to the coronavirus using reputable sources. This will make you less likely to believe falsehoods on social media. The following sites are the leading and most accurate resources: 

2. In addition to being selective with the sources you consume information from, be mindful of the information you repost to your own social media accounts. While you cannot always predict how someone else will (mis)interpret your posts, you can make sure to fact check information before you post it.

3. Shut off the apps for a minute. This tip gets more to the hysteria element of our constant consumption of information. While practicing social distancing (ie. sitting on the couch) makes it way too easy for us to scroll through our phones, taking a few hours a day from social media may prove helpful for our mental (and physical) health during this time. 

Eryn Terry

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