The growing number of Americans who are still unvaccinated, and who are becoming deathly ill from the Covid19 Delta variant has many Americans wondering if anti-vax conspiracy theorists could face criminal or civil liability for spreading false claims and propaganda.

Legal jeopardy for these groups comes from two key areas: libel claims originating from the drug companies that manufactured the vaccines, and proceedings based on 18 USC § 1038: False information and hoaxes.

Because the number of companies manufacturing vaccines in current use in the United States consists of Pfizer-Biontech, Moderna and Johnson and Johnson, any statement made about vaccines collectively could clearly be interpreted as a claim against those three entities. Because of the extremely ridiculous nature of claims about Covid19, including claims that the vaccines turn you into a magnet, that they contain nanobots, it would be relatively easy for a plaintiff to show that a defendant promoted improper claims with a reckless disregard for the truth. It’s quite possible the trio of pharmaceutical companies that manufactured the Covid19 vaccine may decide to ask their legal departments to create internship programs for law students where they’ll have the chance to assist with filing hundreds of libel claims against the clown-shoes right-wing trolls that aired so many ridiculous claims about the Covid19 vaccines.

18 USC Section 1038: False information and hoaxes declares that:

(1)In general.—Whoever engages in any conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of chapter 2, 10, 11B, 39, 40, 44, 111, or 113B of this title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), or section 46502, the second sentence of section 46504, section 46505(b)(3) or (c), section 46506 if homicide or attempted homicide is involved, or section 60123(b) of title 49, shall—

(A)be fined under this title or imprisoned not more than 5 years, or both;

(B)if serious bodily injury results, be fined under this title or imprisoned not more than 20 years, or both; and

(C)if death results, be fined under this title or imprisoned for any number of years up to life, or both.

Chapter 10 of title 18 deals with biological weapons. The extremely reckless nature of right-wing echo chamber claims about the origins of the Covid19 virus and the nature and long term implications of the Covid19 vaccines easily meets the standard of “…conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of chapter …10…” While it’s entirely possible that lawyers for the defense will attempt the “Tucker Carlson defense”, of claiming that “no reasonable person” believes the wild conspiracy theories circulated about Covid19, the reality is that a lot of people do believe Tucker Carlson, and a lot of people believe those conspiracy theories, so much so that in many deep red counties vaccination rates are still well below fifty percent. The Carlson defense should not be accepted by any court when it’s clear that an arbitrary and capricious determination of what constitutes “reasonable” fails to hold malicious actors responsible for the harm they cause.

The relevant Supreme Court statute is the case Schenk v. United States. In that case members of the Communist Party were found guilty of distributing materials which violated the Espionate Act by making false claims about the draft in an attempt to promote insuboordination in the US military. An aggressive prosecutor could try to argue that, given reports of the Russian Government being involved in promotion of anti-vax propaganda, and in recognition of the extensive ties that exist between the Russian government and many with ties to the Trump Administration, that such claims could be considered under the Espionate Act, but a more productive approach may be to focus on language in the Schenk ruling 18 U.S. Code § 371regarding harm to the United States, and declare that the promotion of conspiracy theories constitutes an effort to undermine 42 U.S. Code § 264 of the Public Health Act. While Schenk was decided in time of war, prosecutors should stress that these malicious anti-vax claims are coming during a public health emergency, where the number of Americans who have die is greater than any conflict since the Civil War.

Additionally, because so many of the people becoming ill with the Delta variant are relying on Medicare or Medcaid to cover their health costs, the promotion of anti-vax propaganda has clearly led to a dramatic increase in health-18 U.S. Code § 371care costs for the US Government. The promotion of false information that results in a massive financial liabilities for the Federal Government should also be charged as a violation of 18 U.S. Code § 371 – Conspiracy to commit offense or to defraud United States.

Individuals spreading anti-vax conspiracy theories are contributing to increased suffering for American citizens, as well as dramatically increased costs for the Federal Government. It is time to start holding the conspiracy theorists accountable.