Catch Up: The Legal Reach on Health Misinformation
- FULR Management
- Nov 16
- 5 min read
By Kemarah Thermidor '27
Part I out of III of an analysis of current legislation regarding health misinformation: how the U.S. Constitution addresses transparency and safety when it comes to health matters, and why this requires further elaboration.
The American Psychological Association describes misinformation as inaccurate information, basically, “getting the facts wrong.” (1) While any misinformation has the capacity to result in harmful outcomes, misinformation within the health field is especially heinous, as often lives are at stake. Estimates that 1 out of 3 reported COVID-19 deaths could have been prevented had people followed health recommendations raise the question of where the public is getting their health information and if it is factually correct. (2) Steps have been taken by health associations, such as the American Medical Association’s policy, to identify and suppress medical misinformation. (3) However, these policies are not enforceable by law, creating limitations on the reliability and safety of accessible health information. In recent years, the public has grown increasingly concerned about the legal parameters of the allowance of health and medical misinformation. In response to the COVID-19 pandemic and the conflicting information shared during and after the period, the question of how freedom of speech and health experts’ responsibilities intersect has led to legislative acts and court cases to address the issue. (4) The conclusion has been nuanced, with William Sage, M.D., J.D., describing it as, “you do not sacrifice your free speech rights when you get your medical license. However, the state can take you to task for any injury your speech causes your patient.” (5) This contrasts other opinions such as Claudia Haupt, J.S.D., Ph.D. as she argues, “it’s so important to a democracy not to allow the state to restrict free speech that it’s worth living with some terrible advice floating around.” (6) Ultimately, these differing perspectives reveal the need for clearer guidelines on how the Constitution addresses of health misinformation.
While there is no explicit right to healthcare outlined in the Constitution, legislative and court precedents have created a framework to define the health-related rights that individuals have stemming from other rights to privacy, due process, etc. (7) Therefore, examining constitutional provisions surrounding misinformation and public safety give further insight into the legal scope of health misinformation and where it requires further elaboration.
Specific statutes on the legality of misinformation emphasize public health and safety. 18 U.S.C. § 35 provides a general framework for the spread of false information and identifies two burdens that must be met for misinforming to constitute a civil act. (8) Regarding penalties for the act of misinforming, an individual must both “know the information to be false” (to be referred to as the Knowledge Criterion) and convey the false information “willfully and maliciously, or with reckless disregard for the safety of human life” (to be referred to as the Malice Criterion). (9) It’s important to note that this statute does not require a harmful outcome to punish the spreading of misinformation by law. Arguably, most, if not all, forms of health misinformation act in disregard for human life in some capacity because they endanger public health and potentially increase the risk of death for certain populations. Therefore, public health misinformation meets one of the two criteria for a violation of 18 U.S. Code § 35. The requirement for the act to be known by the individual to be false lacks specificity (Knowledge Criterion) in how this would be argued or proven. It is difficult to prove an undeniable intent (as the Malice Criterion requires) to prosecute, as seen in the similar framing of other legislation.
An example of this potential elusiveness is the evolution of California’s HIV Criminal Law. Before 2017, those with HIV risked facing a felony charge for not informing their sexual partners of their HIV status. (10) This guideline extended to other contexts, such as engaging in sex work and blood/organ/tissue/semen donation. (11) The possibility of conviction relied only on engagement in an act that might expose someone else; the actual transmission of the virus was not a requirement for a felony charge. (12) This law operated under the same sentiment of 18 U.S. Code § 35, not requiring a condition of harm to be met for incomplete or false information, as long as the capacity for someone to be harmed or endangered is present. However, revisions to California’s HIV Criminal Law make notable alterations. The revised law emphasizes a “specific intent to transmit” as a misdemeanor, with the burden of proving intentional transmission placed on prosecutors. (13) 18 U.S.C. § 35 follows similar guidelines with its Malice Criterion to be met. This presents an interesting dilemma of proving the retrospective knowledge of something and an objective desire.
In particular, having a clear set of guidelines to enforce legal consequences for those who may endanger lives by spreading health misinformation is essential, as a lack of legislation or legislation that is easily misinterpreted poses a threat to public health and safety. In a “systematic review of reviews” by the National Library of Medicine, negative consequences associated with health-related misinformation include misleading interpretations of research, impacts on mental health, mismanagement of health resources, and hesitancy to engage in supported health practices. (14) With studies estimating that less than 15% of the U.S. population possesses proficient health literacy, the negative consequences of health misinformation can be magnified if left unchecked. (15) The rise of internet use and social media contributes to medical and health misinformation being viewed as an “urgent issue for United States citizens,” with access to more information (and misinformation) by the public contributing to increased death and lack of trust in health experts. (16) Technological advances give the general public access to a broader range of health information, putting the public at risk of exposure to and harm from health misinformation.
Although the Constitution does not explicitly grant the right to healthcare, there is an expectation of a legal priority for public health and safety. There are legal implications for frameworks that ensure citizens’ legal protection against health misinformation, but they lack specificity and clarity. Due to increased access to health misinformation and increased discussion of the legal scope of mitigating its negative consequences, further expansion and clarification of legislation surrounding health misinformation are necessary.
Endnotes
American Psychological Association, Misinformation and Disinformation, American Psychological Association (2025), https://www.apa.org/topics/journalism-facts/misinformation-disinformation.
Stacy Weiner, Is spreading medical misinformation a physician’s free speech right? It’s complicated, AAMC (2023), https://www.aamc.org/news/spreading-medical-misinformation-physician-s-free-speech-right-it-s-complicated.
Ibid.
Ibid.
Ibid.
Ibid.
Health Equity and Policy Lab, Elusive Right to Health Care Under US Law, Health Equity & Policy Lab, https://www.healthequityandpolicylab.com/elusive-right-to-health-care-under-us-law.
Cornell Law School, 18 U.S. Code § 35 - Imparting or conveying false information, LII / Legal Information Institute, https://www.law.cornell.edu/uscode/text/18/35.
Ibid.
California | The Center for HIV Law and Policy, www.hivlawandpolicy.org (2013), https://www.hivlawandpolicy.org/state-profiles/california.
Ibid.
Ibid.
Ibid.
Israel Júnior Borges do Nascimento et al., Infodemics and health misinformation: a systematic review of reviews, 100 Bulletin of the World Health Organization 544 (2022), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9421549/.
Jessica Ashby, The Effects of Medical Misinformation on the American Public, Ballard Brief (2024), https://ballardbrief.byu.edu/issue-briefs/the-effects-of-medical-misinformation-on-the-american-public.
Ibid.