The notification pictured below popped up in my Twitter feed yesterday:
Really? Who the Hell are these “experts”? Alas, the claim contained in this notification is false! While some liberal legal scholars might agree with this claim, conservative legal scholars, like my colleague and friend Jonathan Adler (see here, for example), are far more skeptical of OSHA’s authority to impose a vaccine mandate in the absence of federal legislation delegating such a power to that agency. (For the record, it would be more correct to say that Congress has the power under the Commerce Clause to enact a nationwide mask or vaccine mandate, but Congress has yet to enact such a law.)
On a related note, this piece of big tech misinformation takes me to the recent news that YouTube has now decided to block all videos with anti-vaccine content, even though the effectiveness of the Wuhan-virus vaccines, especially when compared with natural immunity, has been called into question by many reputable sources. (See here, for instance. Also, as an aside, I am now referring to COVID-19 as the “Wuhan virus” as it is more likely than not that the virus originated in the now-infamous Wuhan Institute of Virology via an accidental lab-leak.) Say what you will about the latest round of Big Tech censorship, I will concede that YouTube is responding to a legitimate problem: the spread of misinformation and fake news on the Internet. But as the egregious example above shows, we must also ask, Who guards the big tech guardians? What happens when Big Tech itself is the source of misinformation?
Although I am generally skeptical of regulation (see by way of example my recent 12-part review of Balkin’s social media paper or the ongoing and in-depth series of this excellent blogger on “Baptists and bootleggers”), I am also highly distrustful of Big Tech. So, what is to be done? This difficult dilemma, however, nicely sets the stage for my review of Part 2 of Mark Lemley’s platform paper next week!