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JURIST: Mary Holland on Legality of Censoring Speech on Vaccines & Autism

Kent legalNote: Excerpted from JURIST. Read the full article here.

JURIST Guest Columnist Mary S. Holland from the New York University School of Law discusses the legality of censoring speech on vaccines and autism:

n a recent guest column, Professors James G. Hodge, Jr. and Doug Campos-Outcalt explore ways to limit presidential candidates' speech about a link between vaccines and autism. Noting recent comments by Trump, Carson and Paul associating vaccines and autism, the authors decry the politicians' "free pass" to "spread such public health lies." They even suggest that the candidates' statements are the equivalent of yelling "gun fire" in a crowded theater and accuse them of being "brokers of public health fabrications." Strong stuff! As the authors correctly note, however, the First Amendment offers little support for their proposed censorship.

As a threshold question, though, how do the authors know that the candidates' underlying assertions are false? Has a vaccine-autism link been "debunked," as they suggest? With the US autism rate among children continuing to skyrocket, having climbed from 1 in 110 children in 2011 to an estimated 1 in 45 children today, the question is critical. Are those who make a connection between autism and vaccines yelling "fire" in a crowded theater? Or, alternatively, are those who seek to suppress free speech trying to restrict people from yelling "fire" in a theater when there is indeed a fire, thus escalating potential harm? Can we possibly hope to establish truth without robust public discourse? I for one do not think so. The US embraces free speech more fully than any other country in the world precisely to ensure that the marketplace of ideas, and not government censors, ultimately decide what constitutes truth.

Enormous bodies of evidence, including federal statutes and case law, link vaccines to brain injury, including autism. Let us start with US Vaccine Law 101: because federally recommended childhood vaccines carry risks of severe injury and death, Congress passed the National Childhood Vaccine Injury Act in 1986, effectively shielding vaccine manufacturers and medical professionals from liability for vaccine-induced harm. Congress simultaneously created a compensation program in the Federal Court of Claims to pay out children for vaccine-induced injuries, including brain damage (encephalopathy) and death. To date, the compensation program has paid over $3.2 billion to 3,300 individuals for vaccine injuries and death. Since Congress granted industry and the medical profession a liability shield, the number of recommended childhood vaccine doses has approximately tripled.

Just what is the difference between cases of brain damage that the US government has compensated as a vaccine injury and those of "autism" that the government has refused to compensate? Several co-authors and I asked that very question in 2011, publishing an article in the Pace Environmental Law Review, entitled "Unanswered Questions from the Vaccine Injury Compensation Program" which finds that many compensated brain injury cases feature autism. The program compensated the cases for brain damage and seizures, but autism was present in a high percentage of cases. Dr. Julie Gerberding, former director of the Centers for Disease Control and Prevention and now a Vice President at Merck, Inc., acknowledged on CNN in discussing a federally-compensated case featuring autism that "...if you're predisposed with the mitochondrial disorder, it [vaccination] can certainly set off some damage. Some of the symptoms can be symptoms that have characteristics of autism." In plain English, Dr. Gerberding acknowledged that vaccines caused the child's autism, as there is no meaningful distinction between "characteristics of autism" and autism, because the diagnosis is based solely on characteristic symptoms.

Another decision from the Vaccine Injury Compensation Program, Banks v. HHS, states the reality of vaccine-induced brain injury including autism more starkly: "Bailey's ADEM [acute disseminated encephalomyelitis] was severe enough to cause lasting, residual damage, and retarded his developmental progress, which fits under the generalized heading of Pervasive Developmental Delay, or PDD. Additionally, this chain of causation was not too remote, but was rather a proximate sequence of cause and effect leading inexorably from vaccination to Pervasive Developmental Delay," which is an autism spectrum disorder (italics added).

Why would we censor Presidential candidates who concur with what government officials and civil servants have already acknowledged? Why would we seek to deter politicians from discussing a national health disaster and its plausible causes?

The authors suggest that vaccine manufacturers should sue candidates for defamation if the candidates finger particular vaccines. Truth, however, is an absolute defense against defamation. The irony of the authors' statement is that certain vaccine manufacturers already acknowledge a vaccine-autism link. Sanofi Pasteur's product insert for its diphtheria-tetanus-pertussis vaccine Tripedia includes on page 11 that autism is a reported adverse event. GlaxoSmithKline, in a confidential 1271-page report on one of its infant vaccines disclosed in a European lawsuit that autism is a reported side effect of its hexavalent vaccine at page 626. Surely, defamation suits would be impossible to win if corporations themselves report plausible vaccine-autism links.

While the authors suggest that medical authorities, including the CDC, WHO and Institute of Medicine "disprove completely" any vaccine-autism link, they fail to discuss the recent admissions of Dr. William Thompson, a CDC lead scientist on vaccines and autism whose work has figured prominently in official rebuttals of a vaccine-autism link. Dr. Thompson has acknowledged, as published in a recent book, that CDC scientists intentionally manipulated and falsified data showing a powerful statistical link between the measles-mumps-rubella vaccine and autism in African-American males. Dr. Thompson has requested that Congress issue a subpoena for him to testify. Congrssman Bill Posey has called for hearings on Thompson's allegations, but so far, Congress has failed to act on this issue, as it has on so many others.

Comments

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NanNJ

I was sitting under a dryer at the hair salon yesterday leafing through a Good Houskeeping Magazine. Every other page was an advertisement for some new drug to combat anything from hot flashes to ED. (BTW, lots of vitamin E works for hot flashes) and I thought to myself, what an uphill battle we fight against the Pharmaceutical machine and how much I appreciate the people that fight it like those at this wonderful website. I wanted to say Thank you for all your efforts to help combat this machine. The Happiest of Holidays to you and yours. Godspeed.

Donna L.

So incredibly well-said, Mary. I don't know how our community can ever thank you enough for being such an outstanding voice of reason during this entire decades-long, slow-motion public 'health' catastrophe.

Jill

Thank you Mary. Great response. I am surprised they published it. Is Minister Tony in California having any luck finding a congressman to subpoena Dr. Thompson?

Shelley Tzorfas

How can we protect our freedom to speak about the harmful affects of people being shot up with aluminum, thimerosal/mercury, formaldehyde, cells of pigs, dogs, monkeys, rats, ether, Peanut byproducts, viruses, bacteria, parasites, leukemia, in an era where a Passport might be required to travel from one state to another?

Birgit Calhoun

Even the Supreme Court says that vaccines are "unavoidably unsafe." Somehow nobody has yet described what constitutes the lack of safety in vaccines. The Bruesewitz' lost their case because of that. So, could those judges please explain the lack of safety in vaccines should they have to tackle anything having to do with free speech regarding vaccines?

Gary Ogden

Thank you Mary and Ronald. As the pushback gets louder and stronger, they are becoming desperate. The Hodge/Campos-Outcalt piece was clearly an act of desperation. Despite the propaganda and smear campaign by the Pharma shills and media, the public is waking up to the truth. We are educating them. Laura is correct that the truth will not remain hidden. Not for much longer. I don't pay any attention to the presidential follies, but perhaps the coming primary season will help it come out.

Laura Hayes

Superb letters to Jurist, Mary and Ronald. Thank you!

Jurist would be wise to remember 2 important things:

1. Truth will not remain hidden...it always finds a way to spring forth and show itself.

2. Truth resonates.

Mary, your fire in a theater example was brilliant.

kapoore

Thank you Mary Holland. You are a super star! I wonder if the CDC is going to be able to get away with shoving Dr. Thompson under the rug indefinitely. If that happens we live under a criminal oligarchy. How could anyone in that whole Agency say that they have the best interests of children in mind? I'm thinking of that disgusting testimony to Congress in the past where such icky people as Colleen Boyle whined about how much she cares about children. Phony baloney... and I don't think anyone on the Ethics Committee can make that claim either. They don't care about Ethics, they are gatekeepers for the criminal elite. This is what Henry Waxman did his whole term in the House... If there was any question of ethics and Henry Waxman was in charge of the inquiry, you could be sure that he was fronting for the criminals. I remember when he was suppose to investigate the contractors in Iraq for skimming off money from the taxpayers and that was definitely another story down the rabbit hole. Only vaccine/autism story won't disappear. I hope they know we will never be silent, never go away.

Twyla

Excellent! Thank you so much MH!

Louis Conte

Well done!

Calls for censorship must be countered with calls for openess and debate.

I respect Jurist for publishing this response as they will certainly face criticism for doing so.

Benedetta

Yelling fire in a theater when there is no fire?

What are the legal ramifications if there is a fire in the theater, some one knows, but is silent? Actually closes and bars the doors.

John Stone

Fine article Mary.

Just to be clear what was not disclosed in the original article by James Hodge and Doug Campos-Outcalt - and which Mary could only apparently allude to in general terms in her response - was that the authors were professionally tied up with the CDC. This is Hodge:

"June 30, 2009 - the Centers is pleased to announce that James G. Hodge, Jr., J.D., LL.M. has been appointed as a Centers' Senior Scholar. Professor Hodge, who previously served as Executive Director and P.I. of the Centers, has been named the Lincoln Professor of Health Law and Ethics at the Sandra Day O'Connor College of Law at Arizona State University (effective August 16, 2009)."

http://www.publichealthlaw.net/

Campos-Outcalt is on the Advisory Committee on Immunization Practices (ACIP):

http://www.cdc.gov/vaccines/acip/meetings/downloads/min-archive/min-2015-06.pdf

Strange that they didn't think to mention this and even the journal seem to have been a little sensitive about it.


Annie

Thank you, thank you, thank you Ms Holland for all you do!!!

Ronald Kostoff

Mary,

Excellent article. On 19 November 2015, after the original article was published in Jurist, I sent an email to the Editor of Jurist, and copied others associated with the journal, as well as the authors of the article. I have appended my letter. As a follow-up, I had an interesting exchange with the Executive Director of Jurist. While I am not happy with Jurist having published such a one-sided article, I feel somewhat better now that they have published your excellent rejoinder. I would have preferred the journal to publish some type of rejoinder in tandem with the original article; first impressions without immediate pushback tend to be lasting.


LETTER TO EDITOR OF JURIST - 19 NOVEMBER 2015

Dear Professor Hibbits,

I have become aware of an article published recently in Jurist entitled "Legally Limiting Lies About Vaccines". It is a blatant propaganda piece, stating in part:

"Childhood vaccines, most of which are relatively inexpensive, avert billions in health care costs and are extremely safe due to robust public and private testing and monitoring systems.

Comprehensive reviews of vaccine safety conducted by CDC, WHO, the Institute of Medicine, and others overwhelmingly support their effectiveness based on the current distribution schedule. These assessments also disprove completely claims of vaccine-linked autism."

This statement is completely false. In my recent book "Pervasive Causes of Disease"

(https://smartech.gatech.edu/handle/1853/53714),

I address one aspect of the relationship between the MMR vaccine and autism. It is contained in Chapter 9, sections 9C2b and 9C5. The bottom line of these sections is that a well-regarded CDC researcher, Dr. William Thompson, stated (through his lawyer) that he had participated in omitting crucial data from a CDC study that would have shown an unmistakable link between the MMR vaccine and autism for at least one sub-set of children (African-Americans). In other forums, he implied that there was at least one other sub-set affected, those classified as 'isolated autism'. According to Dr. Thompson's allegations, members of different levels of management were involved in the deliberate omission of this critical data, and other documents allege that the top of the organization knew about the omission. If his allegations are correct, this was not a 'lone-wolf' effort, but a deliberate organization-wide collusion. In my mind, if there is organization-wide collusion on this study (as alleged), it calls into question the credibility of every other study of this nature conducted/sponsored by this organization.

Dr. Thompson has not presented these allegations under oath before a court of law or a Congressional Hearing, because he has not been invited to make these presentations. Congressman Posey is the only member of Congress to have asked for Hearings on Dr. Thompson's allegations (on the Floor of the House), and not one Committee Chairman has had the courage to initiate Hearings. I suggest you read the named sections in my book for more detail. I give far more weight to Dr. Thompson's allegations than I do to the myriad studies sponsored by industry and government, whose main focus in life appears to be promulgating as many vaccines as can be approved by the regulators. Dr. Thompson has basically risked/destroyed his career and possibly his finances to take the courageous steps of making these allegations available to the public, as well as turning over thousands of supporting documents to Congress. All I see in opposition are the statements of people who profit in one way or another from the continuing promotion of vaccines, irrespective of the lack of evidence of credible safety studies.

Jurist is supposed to be a legal journal. Why was there no mention (in the article) of the 1986 National Childhood Vaccine Injury Act, which effectively removed liability from the vaccine manufacturers (and people who administer the vaccines) for defects or injury (as upheld by the Supreme Court in 2011)? You're a lawyer. What does it tell you about the safety of an item that requires a Congressional Act waiving liability for manufacturers before they agree to continue placing it on the market?

I am on the Editorial Board of a number of journals, and am very familiar with the manuscript review and publication process. There is a full spectrum of quality of submitted manuscripts. It is the responsibility of the Editor to select appropriate reviewers to filter out the low end of the spectrum. Who reviewed this article, and allowed only one very biased side of the picture to be presented? Why were Dr. Thompson's allegations and the implications of the 1986 Act not discussed? His is the most credible and damning indictment of vaccines I have ever seen! What are the potential conflicts of the authors; why were they not listed? What funds have they received from industry, from the CDC, NIH, and FDA? What CDC, FDA, and industry advisory committees have they joined or consulted?

The University of Pittsburgh has a proud tradition of defending the truth, even though it may not be popular. For example, Dr. Ronald Herberman, founding director of the University of Pittsburgh Cancer Institute, issued (in 2008) what is believed to be the first advisory warning of the long-term health risks of cell phone use due to electromagnetic radiation exposure. He testified before numerous committees about the dangers of cell phones; e.g., http://cellphones.procon.org/sourcefiles/Herberman_Testimony.pdf; http://www.legis.state.pa.us/cfdocs/legis/TR/transcripts/2011_0168_0001_TSTMNY.pdf. He took a large amount of flak for his principled stand. In my view, he exemplified what a credible academic should be.

The situation with respect to adverse effects of EMF radiation is eerily similar to that of adverse effects of vaccines. In both cases, much of the published research is sponsored by organizations who will profit in one way or another from public acceptance of the product. It takes courage in the extreme to oppose the onslaught of the profiteers; Dr. Herberman is a textbook example of a profile of courage in the EMF case, and Dr. Thompson is a textbook example in the vaccine case. I'm not familiar with Jurist, but if this article is typical of what you publish, you need to go into another line of business! You are not doing your law students any favors.

Sincerely,

Dr. Ronald N. Kostoff

Bob Moffitt

Jeepers .. if I were one of those "authors" who wrote a column suggesting that .. "vaccine manufacturers should sue candidates for defamation if the candidates finger particular vaccines" .. I would literally JUMP at the chance to offer MY "legal expertise" .. pro-bono .. to the CDC .. who have been publicly ACCUSED by Dr. William Thompson .. of "manipulating research" including the "wilful and deliberate destruction of critical data" .. which Dr. Thompson "alleges" presented clear and convincing evidence the MMR vaccine .. administered prior to 36 months of age .. presents a SIGNIFICANTLY HIGHER RISK OF AUTISM.

Indeed .. if ever there was an allegation that DEFAMES the manufacturers of the MMR .. as well as the public health bureaucracy responsible for protecting our most precious resource .. our CHILDREN .. it is Dr. Thompson's allegation.

Yet .. instead of these two "useful idiot" authors demanding a full Congressional Hearing to prove Dr. Thompson's allegation FALSE .. they .. like the CDC for a full year .. prefer to remain SILENT.

As THEY say .. I REST MY CASE.

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