Inherent Powers and the Limits of Public Health Fake News

Abstract

The world has changed dramatically over the past year. The COVID-19 pandemic has presented unprecedented challenges and has caused a catastrophic loss of over 300,000 U.S. lives. This crisis has been compounded by an infodemic, an effusion of misinformation and fake news about COVID-19. This incorrect information has flooded social media and online platforms, confusing and misleading the American public. Yet U.S. constitutional law largely upholds fake news as protected free speech under the First Amendment. This legal reality has significantly compounded the COVID-19 crisis.

But U.S. law is not limited to only constitutional enumerated powers. An underexamined approach to regulating fake news is the broad inherent powers of the federal government. Inherent powers are those innate to being a sovereign nation, and they have long been recognized under U.S. law in key areas, including in public health and censorship during times of military conflict. Inherent powers have followed three lines of justification: long-standing international practice, powers naturally pursuant to constitutionally enumerated powers, and emergency powers. Fake news about public health, and COVID-19, in particular, is a strong match for all three of these models under the applicable balancing tests. In addition, traditional First Amendment justifications are particularly weak in the case of COVID-19 misinformation. This makes inherent government powers over public health an underexamined, but particularly promising avenue for regulating extremely harmful misinformation about COVID-19.