Roshni Budhiraja, Vanessa Arreguin, Garrett Forrest, Norma Grabauskaite, Mariama Mwilambwe
Vol. IV, No. 3
Vaccine regulations or mandates are a form of social regulation aimed to keep the general public safe and healthy. The enforcement of such regulations has opened up a conversation regarding its coercive methods. Specifically, are regulations regarding vaccinations a coercive infringement or a necessary measure? With COVID-19 bringing this issue to the forefront, this article seeks to understand vaccine regulations and their history, public opinion, use in academia and social media as well as the current administration’s actions.
II. The History of Vaccine Regulations
While the COVID-19 pandemic has brought up numerous opinions on the enforcement of vaccines through regulation, history shows that the use of regulations to enforce vaccinations for the good of the public is not a new phenomenon. Likewise, the opposition of such regulation is no stranger either.
Vaccine regulations are traceable dating back to 1777, amid an outbreak of smallpox. Smallpox had traveled to North America and raged through the Revolutionary War. During this time, British soldiers were immune due to exposure as children or previous vaccination. This left the American troops vulnerable at the hands of the dreadful disease. As the number of infected American soldiers was increasing George Washington took action. In a letter to William Shippen on February 6th, 1777, Washington wrote, “Finding the Small pox to be spreading much and fearing that no precaution can prevent it, I have determined that the troops shall be inoculated.” Thus came one of the earliest instances of vaccine regulation. The inclination to ensure the safety of the public from such diseases continued on. In the 18th century smallpox was still a prevalent threat to the general public. Science had allowed for the development of a vaccine, but its use was optional. As the number of the sick and dead were not seeming to decline, Massachusetts instituted the first official vaccine mandate. Proposed in 1809 and passed in 1810, this law required smallpox vaccinations for those above the age of 21. Many states followed suit and required vaccinations against smallpox. Later, in 1827 Boston became the first city to require a smallpox vaccine for those attending public school. As these vaccine regulations became more common, so did opposition to them. Vaccine mandates were repealed in California, Illinois, Indiana and Utah.  Many believed the enforcement of vaccines was an infringement of their liberty.
In 1922, the requirements of vaccinations around the country began a new conversation––one of exclusion. Can one be denied certain opportunities if opposed to taking the vaccine? One particular case, Zucht v. King, discussed the constitutionality of consequences as a result of being unvaccinated in schools. In San Antonio, Texas, Rosalyn Zucht was unable to attend public school due to the absence of a vaccination certification. The court upheld that local governments had the right to require vaccinations as a condition for attending school. While Zucht stated that this was a violation of the Equal Protection Clause of the 14th amendment, the court denied this argument, declaring instead that Zucht had not clarified any “impermissible discrimination” to allow for the examination of such an argument. As society continued to evolve medically, and more experiments associated with vaccinations were taking place, the relationship between the public and science faltered between trust and mistrust. While some people praised scientists for creating life-saving vaccines, others were hesitant in their acceptance. One case of this hesitancy came from the Tuskegee experiment in 1932. The United States Public Health Service had carried out experiments to find treatment for syphilis. In doing so, the USPHS experimented on 600 African Americans, promising them free medical care in exchange for participation to find a cure to the disease.  The researchers had aimed to see the effects of syphilis if left untreated, yet did not disclose this to the 600 African Americans partaking in the experiment. The researchers monitored these men and did not treat them even if their symptoms grew worse. Ignorant to the intent of the experiment, 100 men died due to complications of the disease. Driven by racist motives, this experiment sought out African Americans specifically and was later shut down due to its unethical standards. The Tuskegee experiment tainted public trust for vaccines, especially within the Black community. Gaining trust in vaccines must come from a place of transparency and honesty to ensure the safety of the public. As vaccine regulations are a type of enforcement that may limit the liberties of the general public, it is vital that the required vaccine is transparent in its conception. Otherwise, as history shows, vaccine hesitancy will only continue to grow.
Moving further along, in 2015, an outbreak of measles was detected among children. Some had taken the vaccinations available to avoid or mitigate the risks of the measles. However, others had claimed religious exemption in an attempt to avoid getting vaccinated. Many of these children were enrolled in public schools and posed a threat to the mass student body. California became the first state to deny personal belief exemptions to vaccines for children in public and private schools. In Senate Bill 277, California stated it would “eliminate the exemption from existing specific immunization requirements based upon personal beliefs, but would allow exemption from future immunization requirements deemed appropriate by the State Department of Public Health for either medical reasons or personal beliefs”. This bill would exclude private schools and home based schooling. Many states later followed this model and adopted similar policies.
The presence of uncontrollable diseases did not start with COVID-19 and will not stop with it. Nevertheless, the use of medical research and vaccinations to mitigate or even eradicate such diseases can allow for a safer and healthier society. The enforcement of vaccine regulations have been met with acceptance and scrutiny by the public in the past and, as now seen, in the present. Therefore, the achievement of a safer and healthier society can only be reached to its full extent through a trusting relationship between science and the public.
III. Vaccine Regulations and Public Opinion
When vaccinations for smallpox became mandatory in the mid 1800s, it “played a pivotal role in reducing mortality and case rates.” While these mandates were successful, they were similarly met with public resistance, largely on the “grounds of personal liberty; some because they believed lawmakers were in cahoots with vaccine makers; and some because of safety concerns.” There is a mirroring of concerns seen in the present with those of the past, yet this does not account for the technological and medical advancement that has taken place since the 1850s. While some of the concerns of the past were grounded in truth, many are now outmoded; the conditions of the past are not comparable to today’s conditions. The previous success of vaccine mandates strongly supports the expectation that present day enforcement for the COVID-19 vaccine will aid in mitigating the pandemic and its impact on citizens.
In analyzing the implementation of vaccine mandates, an important, often confounding factor to consider is the general public opinion that emerges. On September 9, 2021, President Biden signed an executive order to require COVID-19 vaccination for all Federal employees, with exemptions for medical and religious reasons. In a survey released by Gallup shortly after the enactment of the order, it was found that a majority of adults were in favor, with “six in 10 U.S. adults in favor of those requirements for federal government workers, employees of large companies, and workers at hospitals that receive federal healthcare funds.” Similarly, there was strong support for vaccination requirements for teachers and staff in K-12 schools, with “63% of U.S. adults in favor.” While this majority is not overwhelming, the true disparities materialize when considering opinion based on partisanship, gender, and race. For instance, reflecting on the same issue of mandates for teachers and staff, “94% of Democrats, 53% of Independents and 26% of Republicans support vaccination mandates for teachers.” Clearly, the true differences surface when breaking down the total support into groups, with Republicans remaining the most resistant. Such distinctions continue when considering gender. There is a gender gap in the approval for universal vaccine mandates where women continue to be less supportive of requiring everyone to receive vaccines compared to men. In a study conducted by the Covid States Project, which was launched by a multi-university group of researchers with the intention of identifying links between virus transmission and social behaviors, researchers found that support among women for a universal vaccine mandate remains at 63%, with support among men set at 67% . While the variance is not drastic, there is still a gender disparity to take note of when evaluating public support for mandates. Furthermore, contrasts between races also arise: “white respondents remain the least supportive group (61%), and the largest support was seen in Asian Americans (83%). Further breakdowns can be seen in African American and Hispanic support at 70%.” While it may appear as though the majority of society favors vaccine mandates, further examination of particular social groups or demographics elucidates the division along partisan, racial, and gender-based lines.
With most Americans in support of vaccine mandates, it is now critical to examine the ethics and legality of implementing these orders. Referring back to the smallpox vaccine mandate, the most prominent case to emerge questioning the power of the government to issue them was the 1905 case of Jacobson v. Massachusetts. This case serves as a general precedent to the mandate questions circulating today, as its ruling gave the states authority to enforce public health requirements, such as vaccine mandates. This Massachusetts law led to the ruling by Justice John Marshall Harlan that the law did not violate the 14th amendment as the state is granted the ability to “constrain individual liberties through reasonable regulations when required to protect public safety.” As one of the first cases relating to vaccine mandates, Jacobson v. Massachusetts serves as the standard in present day vaccine mandate enforcement.
Throughout the COVID-19 pandemic, a multitude of cases have transpired in an effort to either bar or allow rules requiring certain groups to be vaccinated. One of the most prominent examples of this came with the case of Missouri v. Biden. The Biden administration’s executive order requiring vaccination for all federal employees was the premise for Missouri v. Biden, where the final decision, given January 13, 2022, granted the Biden administration the ability to enforce this mandate. Yet, complications arose with Judge Jeffrey V. Brown of the Southern District of Texas issuing “a nation-wide injunction, blocking enforcement of President Biden’s Executive Order 14043” on January 21, 2022. With this injunction, the mandate was placed on hold. This lasted until the most recent decision on April 7, 2022, in which the 5th Circuit Court of Appeals lifted the injunction, allowing for the enforcement of the federal employee vaccine mandate once more. This instance demonstrates the difficulty that still exists in implementing a national vaccine mandate, and the lengthy legal procedures that ensue in order to solidify it.
A key facet of combating the COVID-19 pandemic has been the concept of herd immunity, where a majority of the population possesses immunity to the virus, and in turn serves to protect those who are immunocompromised and at higher risk of getting severely ill from infection. Vaccines were established as a tool to aid in achieving herd immunity, which serves as the foundation for attempts at implementing vaccine mandates. Since examining the public opinion, along with relevant cases and precedents established for vaccine mandates, the question of whether coercion through regulation is truly justifiable in the name of health and safety becomes a pressing topic. Regulation, in this case, refers to the enforcement of a rule or mandate by an authority, whether it be the federal or state government, levied on society. Coercion relates to regulation in that it is another form of having individuals take a certain action or decision, but is more closely tied to persuasion or compulsion. In reflecting on the execution of vaccine mandates, there is a coercive component in its position as a regulatory item enforced by the government. While vaccines can be voluntary in nature, they become compulsory through mandates, and various consequences may result due to non-compliance. For instance, some include “financial penalties/fines, loss of jobs, and restrictions of freedoms.” This is where a regulatory feature shifts into a method of coercion, as different parts of an individual’s life are affected through non-compliance, making the thought of getting vaccinated to avoid significant ramifications compelling. Mandates serve as barriers or obstacles to engaging in society as they can place limitations on travel, work, getting an education, attending worship services, or simply going about everyday life. The isolating impact of not following vaccine mandates is a common theme that manifests as a way to force individuals to vaccinate, as it grants the ability to return to somewhat normal living.
Another effect of vaccine mandates is that they heighten polarization between the vaccinated and unvaccinated through “shaming and blaming of the latter.”Creating greater division in an already isolated society can have detrimental lasting effects on relationships between individuals, which serves as another means of pushing non-compliant individuals to pursue vaccination. An interesting point to note is that in some cases, it was found that “When mandates are less effective than desirable, providing…the option to opt-out has been shown to increase vaccine uptake.”While there is not a clear explanation for this trend, it is reflective of a distinct form of coercion through less coercion. Feeling a sense of less compulsion or more autonomy over the decision to vaccinate may be a motivating factor to go on and get vaccinated, a reverse psychology of sorts.
While the primary intention of a mandate is regulation of society, the nature of mandates is coercive, especially those for vaccines. Vaccine mandates are proven to work, to the point where some organizations who chose to voluntarily establish them went from less than 50% to 90% vaccinated. As seen in the COVID-19 pandemic, as well as in previous cases such as the smallpox pandemic, vaccine mandates naturally face resistance. While the majority appear in favor of mandates, there are clear divisions between various groups based on partisanship, race, and even gender. Even so, modern cases notwithstanding, there are significant precedents of approval for mandate implementation. At the core of this issue is the conflict between protecting individual autonomy, and protecting the common good of the whole. Vaccine mandates limit the scope of choice as significant consequences loom with the choice of non-compliance. As a result, vaccine mandates, although regulatory, possess an unavoidable coercive nature that places undeniable pressure on individuals to comply and vaccinate. Is this coercion justifiable if it is done in the name of public safety?
IV. Constitutionality of Vaccination Mandates On College Campuses
Vaccination mandates on college campuses were forever altered in the wake of the COVID-19 pandemic. Pharmaceutical industries including Johnson & Johnson, Pfizer, and Moderna have scrambled to produce vaccinations to address the virus that prompted a global pandemic. In response to these available vaccinations, college campuses everywhere have taken different approaches to administering vaccine mandates or refraining from doing so. While some universities are guided by state policy, others have veered sharply away from what they see as an unconstitutional exercise of power by vaccination regulations. President Biden intended to immunize 70% of Americans considered vaccine eligible by mid-summer 2021. This has been an especially prevalent concern among those of college age, since this group is both eligible for vaccination and also considered one of the top spreaders of the disease. Vaccine hesitancy is born of numerous concerns, such as religious beliefs, state facilitated incentives, and historic medical inequities. At the college level, many of these hesitancies are fleshed out at the expense of the greater campus community. The American College Health Association (ACHA) officially recommends that vaccination be required for on-campus students, with exemption options available. Interestingly, the ACHA was granted $2.5 million in funding from the CDC in exchange for encouraging confidence in the COVID-19 vaccine. In 14 states, including many southeast and southwest states, vaccine mandates are banned for state employees. Arizona has legislatively banned universities from mandating COVID-19 vaccines. Federal policy indicates that no adult may be forced to be vaccinated, according to constitutionally protected liberties, which serves as a significant barrier to state by state attempts to vaccinate their populations. In a brief issued by the Harvard Law Review Blog in 2021, Deputy Dean of Law at Harvard, Glenn Cohen, observes that “federal statute does not limit what conditions can be imposed on those who refuse a vaccine under an Emergency Use Authorization.” This has allowed for many universities across the United States (in compliance with state policy) to tell students that they are not allowed on campus without vaccination or exemption. While the criteria for religious exemptions vary by university, the US Supreme Court does not constitutionally require respect for religious vaccination exemptions. Some states do not allow religious exemptions to vaccination requirements at all (Maine, California, Connecticut, Mississippi, New York, and West Virginia). The ACHA policy does not specifically address this sort of vaccine hesitancy, or more importantly the issue of pregnant or breastfeeding students being granted exemption – this is at the discretion of the university itself to decide. The result of the unclear policies and legalities surrounding vaccination mandates on college campuses contributes to increasing social and political tensions between students who are deciding whether or not to become vaccinated.
Repercussions for non-compliance surrounding vaccine regulations vary by campus, but often include losing access to student facilities and services such as classrooms, gyms, and dining areas. The culmination of this tension in combination with sanctions for noncompliance has raised important questions about the constitutionality of campus by campus vaccine regulations. More importantly, opinions regarding vaccine mandates have sowed division among campus community members, raising questions about cancel culture in both academic and social settings. It is necessary to explore the theoretical implications of cancel culture to determine how vaccine opinions may impact students and discourse surrounding the legality of vaccine mandates. Beginning with the theoretical implications of “cancel culture” on college campuses, this article specifically aims to explore the tension between contentious academic discourse and the preservation of the First Amendment. We focus especially on the pressure and often coercive tactics universities employ to ensure that their members adhere to the dominant socio political views, with the intent to evaluate the potential infringement of this system on the overall goal of an academic institution: the collective pursuit of knowledge. Through this approach, one can uncover the ways that campuses create lasting policy based on a fear of being canceled, and the potential subjective evaluation of student conduct cases. The findings of this study will illuminate the nuance of cancel culture and its many interpretations, as well as contribute to protecting the interests of community members on college campuses. Cancel culture is an unending power struggle between numerous political factions competing to control the narrative. The rise of social media and the rapid spread of information that has accompanied it have essentially upped the stakes for cancellation. Social ostracization is no longer the most fearsome consequence. Now, to be canceled can be a career ending, legally binding process; certainly not one that people are willing to take lightly. While the concept of cancel culture may seem like a war on free speech, expression, and medical freedoms, the issue is much larger and more complex. Cancel culture can be defined as “collective strategies by activists using social pressures to achieve cultural ostracism of targets (someone or something) accused of offensive words or deeds.” The nuance of cancel culture enters the conversation through an evaluation of who wields the power to cancel. Conservatives and progressives alike have used cancellation as a punishing, regulatory tool to further their political agendas. Jay Cameron, a Constitutional Freedoms attorney, critiques cancel culture on college campuses, saying “The way society is set up, if I don’t like what you have to say, I can’t put my hand over your mouth; that’s against the law. But what universities are teaching young people is that it’s okay to throw a fit if you don’t like something that somebody said. And that’s a disservice to those young people.” A deeper evaluation of the impact of cancel culture on college campuses and on academics can illuminate ideological inconsistencies that are a detriment to greater society.
Perhaps the most important determinant of cancel culture is who is presenting the information liable to get them canceled. Generally recognized as specialists in their academic discipline, professors have the unique ability to set the agenda for what will be considered truth in their classrooms, and what information will support that idea of truth. Simply, professors are the challengers, the groundbreakers, the ones responsible for asking the difficult questions and uncovering inconsistencies in the accumulation of knowledge. Proving a new theory requires a dissection of existing ones, and this breeds controversial discussions about the world as it exists. As the primary disseminators of information on college campuses, they are often under the most scrutiny in contentious ideological and political discussions. A university’s view on the role of professors on their respective campuses (as well as the surrounding environment) can set the agenda for how cancel culture will manifest. This was especially prevalent as COVID-19 vaccine regulations emerged. Many faculty concerned for their wellbeing while working alongside unvaccinated students wielded massive influence in enacting new university policies and vaccine mandates. Hal Berghel, a computer science professor at the University of Nevada argues that cancellation is never based on ethical standards, or any other substantial form of measurement; rather it is based on an individual’s commitment to the political status quo. This theory emerges in strong connection to the geographic distribution of bans on vaccine mandates within the United States. Almost all southeastern states have placed a ban on vaccine mandates for state entities, which undoubtedly impacts vaccine policy on their state-funded college campuses. Regardless of Berghel’s critique, professors are ultimately still respected for their commitment to truth. As Brown writes, “An advance here; a retreat there; but over-all a slow acceptance of the general proposition that a university teacher has a right and an obligation to pursue truth wherever the search leads him. This right is one that a democratic society recognizes in its own interest, and reinforced with the guarantee of tenure so that a teacher of recognized competence and integrity has some protection from economic pressures if his inquiries prove to be unpopular.” A major suspected driver of cancel culture is fear, which keeps people in a state of anxiety, always trying to ensure they meet the current normative sociopolitical standards to avoid cancellation. Fear surrounding cancellation is salient on and beyond college campuses. John Rose, a professor at Duke, outlines the political nuance of cancellation on college campuses, and the limitations it places on students. “The conservative critique of American higher education is well known to Journal readers: The universities are run by intolerant progressives. The left counters with an insult: The lack of intellectually respectable conservative arguments is responsible for campus political uniformity. Perhaps a better starting point in this debate is the students, most of whom actually want freer discourse on campus. They want to be challenged by views they don’t hold.” Others support the idea that this sort of censorship is limiting to the growth and capacity of the individual, in school, as an employee, and as a free thinker.
Some instances of collective action between universities and the marginalized public concern erasure of pieces of the institution that represent historic injustices. While erasure is controversial and nuanced, it is an important piece of the conversation as it represents concrete action beyond perceived social cancellation of an individual or group. Instead:
“It demonstrates an instance in public relations where marginalized publics are the ones initiating the calls for erasure, and they are using erasure both as public relations empowerment and as activism to (re)take power. Erasure as public relations empowerment occurs when groups gain a sense of identity and pride in removing oppressive symbols, while erasure as activism to (re)take power occurs when groups form and rally to exert power over institutions that promote oppressive ideologies”.
In this case, erasure can be considered a form of cancellation, but instead of attempting to purify or condemn an existing viewpoint, it seeks to erase a symbol or physical representation of discrimination. There is legitimate concern about the integrity of academic pursuits within universities because of cancel culture. Professors are tasked with adhering to the unspoken standards set forth by the university, while simultaneously trying to challenge the status quo in pursuit of truth. The legal system is flawed, and First Amendment rights cannot always protect people from social ostracization due to the things they say, or ideas they support. Understanding conservative victimization by way of cancel culture can be an exercise in understanding social hegemony, and the ingrained cultural capital of dominant societal groups. Legal scholars at UC Hastings Law hold that there is a gray area to be found in the constitutionality of vaccine mandates on college campuses, amidst concerns about social ostracization of students. Specifically, “universities can, with some limits, require vaccination against COVID-19 for attendance, but may have to provide accommodation to certain groups of students.” Still, the authors stress that “whether mandating COVID-19 vaccines is the right choice for a specific institution is a more complex question, and universities should consider a variety of factors in making that decision.” Cancel culture is a nuanced form of social regulation that plays an important role in political discourse, made especially prevalent on college campuses due to COVID-19 vaccine mandates.
V. Vaccine Regulations and Social Media
The COVID-19 pandemic has normalized discussions of mask mandates, shutdowns, quarantines, and vaccine mandates, all of which pertain to regulation and coercion. The solution to the COVID-19 pandemic as well as what the best approaches are in numerous different areas has been highly debated, and the dialogue on vaccine mandates has been especially prevalent. A significant proportion of people support the vaccine mandate, and this opinion has been widely expressed through social media and other means by individual citizens, politicians, organizations, and businesses. There are signs everywhere with general facts about the pandemic, recommendations to wear a mask, ads on getting the vaccine, and much more. On the surface, this seems to indicate general concern for public health; however, social media has brought the politically controversial undertones to the forefront of online conversations.
When it comes to encouraging or even mandating vaccination, it is possible that social media could play a significant role as a regulator and coercive force. This possibility raises the potential need for social media to be regulated as well. Around 70% of adults today use a social media platform. This large number of users and the amount of time spent on these platforms has been brought to the attention of policymakers, teachers, parents, and doctors. Social media has become very influential to almost every person with a technological device and even more so once social media became a main source of connecting with others during the COVID-19 pandemic’s strictest quarantine period. The past few years have been very intense for numerous reasons: a global pandemic, a resurgence in the movement for racial justice, political unrest, a presidential election, and an extremely heightened amount of isolation. This increased isolation has led to more people turning to online platforms. The population of social media users has increased around eleven percent and people are on social media forty percent more than they used to be. Social media is increasingly playing a role in politics and social issues and has become a platform for movements to take place. It has emboldened people not only to express their opinions, but also to express why their opposition’s opinion is incorrect.
The sheer number of social media users already merits attention, but what these users discuss on social media is another area of interest that has now entered the political sphere. People turn to social media to aid them in seeing what they could do and what they could think, but recently people have been turning to social media to tell them what they should do and think. More specifically, in the context of the COVID-19 pandemic, there has been much dialogue on what the correct steps are. There is a wide array of opinions, and they can all be expressed on social media. There are those who believe masks and vaccines should be required of everyone and there are others who claim not wearing a mask or not taking the vaccine is an extension of their right to bodily autonomy. Communities fight on social media, but others try to use it as a way to hold individuals and groups accountable as well. With a topic as important as vaccine mandates, the influence of social media is something that could be utilized but also needs to be watched very closely to make sure it does not overstep or make the situation worse.
Social media can often act as a regulator by determining what actions and opinions are deemed socially acceptable to a large majority of users. If someone influential, who has thousands or even millions of followers or subscribers, commits an act or says something controversial that a majority of people on social media disapprove of, then they may be canceled. They can lose their influence, brand deals, support, and fame through the social pressure encouraged by cancel culture. As previously mentioned, cancel culture is the common term associated with causing a person to be, “…culturally blocked from having a prominent public platform or career.” Influencers, celebrities, famous athletes, and other individuals who are exposed on social media for doing things such as not following COVID-19 guidelines, not wearing a mask, or not taking the vaccine have been ‘canceled’ by the public and are told they should lose their platforms so as not to influence others to imitate their actions. With this kind of social pressure put on influencers on social media and the many cancel attempts, it may motivate others to take certain actions so as to avoid the same feedback. In this sense, cancel culture may serve as a new form of regulation with the consequence of being socially outcasted as the incentive to follow certain recommendations such as wearing a mask and getting the vaccine. It is the social pressure of the digital age.
The pandemic and cancel culture have collided on many notable occasions. For example, Novak Djokovic, the number one tennis player in the world, announced earlier this year on social media that he was heading to the Australian Open with an exemption from the vaccine. Djokovic expressed skepticism of the vaccine and wished not to have it administered to him. In response to his announcement, “other Australians used social media to express their anger at the decision. The hashtag #DjokovicOut trended on twitter.” This is an example of how people turn to social media to show their opinion on the actions of influential people, especially when they disapprove of it. Tweets have become a common way that influencers make their opinion known as well. It allows people to create communities of like-minded people on specific topics, such as shared disapproval of a tennis player who does not want to get a COVID-19 vaccine. Even the hashtag is powerful, as it gathers all those who share an opinion and puts it into one place (something not so dissimilar from a petition).
The Djokovic example is just one of many COVID-19-related examples of social media playing a regulatory role in how something such as a vaccine mandate is perceived. These cases almost always involve numerous perspectives. A famous individual, such as Djokovic, may use social media to announce what they have decided in terms of the vaccine. Then, there is the perspective of the followers of these individuals who see their decisions on social media and may be ‘influenced’ to follow them and make the same decision. Additionally, there are those fans who disagree with the influencer’s decision; this group of people can be quite passionate on social media when someone they idolize does something that disappoints them. Cancel culture is not only filled with people who are against the influencer, but also filled with previously dedicated fans who wish to see consequences for the disappointing actions of their role model. What’s more, there are the supporters of a certain side of the vaccine discussion who are angered by any celebrity with a platform who makes a decision that they disagree with. They are aware of the sway that influencers hold over a lot of people and thus speak up when they believe these influencers are a negative influence.
Social media has also become a news source––for some, a primary news source. Research has found that around 50% of Americans get a significant amount of their information on the COVID-19 pandemic and the vaccines on social media. It has become a common opinion that social media serves as an important source on vaccines. The biases of social media need to be accounted for now that it has the power to sway people’s opinion on the vaccine and whether they wish to take it. The influential power of social media is one that can be taken advantage of to help further health safety during a global health crisis. There have been many different ways organizations and the government have gone about promoting the spread of information on the pandemic, information about the vaccines, and concern over misinformation. Social media has always been a platform that profits through advertisements, and advertising about the virus has become very common. Social media has also provided a way for users to spread this information as well.
There are many different ways that people can go about aiding in the spread of information through social media. According to the World Health Organization, people were likely to post scientific content about the pandemic on their social media. These posts can range from long informational videos to simple infographics with quick facts about the pandemic. People can post links to the CDC’s website and provide evidence that debunks vaccine myths. There are certain social media users who have dedicated their entire platforms specifically to providing information on topics connected to the pandemic. Social media is important in this sense because it provides easy access and an easy opportunity for people to seek out information and better understand the pandemic and what they can personally do to help the situation. Simply seeing many people posting about their vaccination may be the reason people decide to get vaccinated themselves. It has created a community that shares information for better or worse. Social media was critical to advertising information about the vaccine because there was much hesitancy and skepticism about how safe it was when it was released. In order to get ahead of the virus and the infection rate, social media was needed to reach the general population and convince them that this vaccine was safe as well as something that should be taken by as many people as possible. The Department of Health and Human Services launched an ad about the COVID-19 vaccine on YouTube to prepare the country for public distribution of the vaccine. Social media served as a quick and easy way to advertise about the vaccine and to convince people that it was safe. This was then a mission taken on by social media users. Social media derives its coercive and regulatory power from the creation of online communities that support a certain agenda. When thinking of ways to promote vaccine distribution, a method continually called on was to, “Leverage social media analytics to evaluate social media content’s impact.” Public health officials aimed to use social media to create a dialogue about the vaccine and to also turn it into a force that could get people to agree to taking the vaccine, even if only for reasons such as fear of social ridicule.
Social media has proven to be a significant coercive mechanism for those who do things that are believed to be putting people in danger, both by ‘canceling’ those who do not take the vaccine or arguing in support of a vaccine mandate. Social media arguably has the power to add another coercive layer to vaccine mandates because it allows social pressure to convince people to take the vaccine. Social media can be a tool for the pure intention of fighting against this pandemic and saving lives, but there are many potential dangers that come with its utilization. Social media is well known for giving people a platform to spread information about the pandemic, but it is also known for making the spread of misinformation very easy. Social media has power, but some may say that it has too much power. Misinformation can easily cause people to oppose the vaccine, it provides a platform for the anti-COVID vaccine community, and there is a significant lack of government regulation on social media. Social media is a quickly and always evolving platform that moves much faster than government. This shows that it is necessary to determine the extent to which social media may need to be regulated in order to stop the spread of misinformation. There is also a question of where responsibility for fighting misinformation should be placed—on the social media companies themselves, the government, or the public.
Misinformation on the COVID-19 pandemic and the vaccines more specifically has run rampant on social media and has proven to be quite harmful. It has been noted that “Interventions informed by behavior change theory and delivered via social media platforms offer an important opportunity for addressing vaccine hesitancy.” While social media can be used to fight against vaccine hesitancy, it should also be noted that a lot of this hesitancy is due to social media as well. Active and goal-oriented aims through social media to fight hesitancy are needed because social media is often where hesitancy is created in the first place. There are two types of false information that can be spread through social media: misinformation and disinformation. Misinformation is when conclusions are drawn from false or incomplete information and disinformation is the intentional promotion of false information in order to achieve an intended outcome. Social media makes the spread of this false information very easy. It is difficult to regulate because social media has such a large population, and users can often claim freedom of speech protections.
Misinformation not only shows the possible necessity of heightened social media regulation, but also makes social media less efficient as a regulatory power. There are steps being taken to fight against misinformation, such as Instagram announcing that it would block anti-vaccine misinformation, but there was no specification as to when they would begin doing so and there is the risk of the algorithm blocking too widely and erroneously silencing voices that are bringing up relevant topics. Social media is a place where many get their information about the vaccine, but misinformation can cause social media to be discredited. Because misinformation is complex and sometimes difficult to identify, even on a case by case basis, it may cause people to simply claim that all information on social media is misinformation. These people may then require extra steps to be convinced that viable information exists on social media as well. This can greatly hinder the spread of important data on the pandemic and the COVID-19 vaccine and breeds mistrust of all information whether it is true or not.
Combating misinformation in the context of the COVID-19 pandemic may require legal action. There is little legislation on social media because the government remains wary of allowing or appearing to allow freedom of speech violations to occur. But Democratic senators have introduced a bill in an attempt to fight against misinformation. Known as the Health Misinformation Act, it would open up social media sites such as Facebook to lawsuits if they are found to be promoting misinformation regarding public health. This strategy is designed to hold social media platforms accountable for the spread of misinformation. The Health Misinformation Act would remove Section 230 protections that shield social media platforms from liability when illegal content is hosted on their site. Though it is good that action is being taken to try to fight against the spread of misinformation, there is still no guarantee that this act will have its intended effect. Misinformation is technically not illegal content, it is only potentially harmful information. There are many strategies being suggested and implemented which help to keep users aware of misinformation and to hold them accountable for its spread. There are additional suggestions of creating dialogue between the public and healthcare professionals, reminding the public of the success of past vaccines, working with organizations and community groups to take action against misinformation, and trying not to give misinformation a platform at all by not repeating the information to others. Though users should be held accountable for the information they consume and spread, social media platforms should also be held legally accountable for providing a space for misinformation in the first place. Rather than being reactive to misinformation, a proactive strategy requires attacking it at the source. And while it would be difficult and time-consuming to figure out who created the misinformation, it might be better to put the responsibility on the platforms that give misinformation creators a place to spread their falsehoods to the community.
Despite the challenges involved in limiting misinformation, it remains a key facet of the United States’s pandemic response. The Biden administration released a report about misinformation on social media about how everyone needs to come together to fight against the spread of misinformation during the pandemic. The report also has policy recommendations for companies such as Twitter, Facebook, and YouTube that have to do with creating algorithms focused on stopping misinformation from getting attention and telling users not to spread false information. This puts direct pressure on social media companies to take action when it comes to misinformation getting significant attention on their platforms. Biden himself called out Facebook for allowing misinformation to flourish, stating the company is responsible for the people who are harmed by this false information. Without regulation of misinformation, vaccine hesitancy builds and communities such as the anti-vaccine community grow stronger, which then leads to unvaccinated people getting infected and spreading it to those who are at high risk if they were to get the virus.
Misinformation has proven to be very harmful through its encouragement of vaccine hesitancy and it may lead some to question just how much power it should be given with such low supervision. There is no single solution for this problem. It is a very complex issue that will require the social media community to come together as well as possible cooperation between the government and these social media companies to truly curb the misinformation presence online. This will not be an easy task. There is no sure way to determine what exactly should be counted as misinformation or disinformation and this can lead to risks of false accusations and the blocking of necessary and vital information that is thought to be false. Concerns may also arise about regulation of misinformation potentially violating fundamental rights such as freedom of speech and expression. There is also the possibility of tension between the government and large social media companies. There is merit in the government wishing to hold companies responsible for the harm created when they do nothing about misinformation, but these companies may disagree about where the blame is to be placed. Even when President Biden made accusations that Facebook was “killing” people by not stopping the spread of misinformation, Facebook responded saying they were shown to be saving lives. There is a lot of room for disagreement between many parties and this could lead to many issues in achieving the goal of stopping the spread of false information about the COVID-19 virus as well as the vaccines that are intended to end this pandemic.
The COVID-19 pandemic has created a lot of tension and confusion and many people sought out social media to tell them what was going on. This elevated social media to a place of considerable public influence. The people that make up the social media community now have the power to exile those caught committing acts of racism, sexism, or anything deemed socially inappropriate without any type of legal action having to take place. Social media is an area scarcely regulated while it continues to gain coercive power. It may play a significant role in getting people to receive the COVID-19 vaccine because not taking it has been deemed something worthy of “cancellation”. Social pressure and the way it has manifested on social media can be a tool toward reaching a positive outcome such as lowering COVID-19 infection rates through the promotion of vaccination. But there is also the risk of adverse effects through the spread of false information that may cause people to hesitate to get vaccinated. The significant spread of misinformation may necessitate legal action that holds a certain body responsible, whether it be the government, social media companies, or the public. Social media can be a coercive tool for empowering vaccine mandates, but it could also lead to the creation of an even more powerful opposing force that is not dealt with delicately.
VI. Vaccine Regulations and The Biden Administration
The Biden administration, in an effort to boost COVID-19 vaccination rates, issued an executive order mandating over eighty million employees of large businesses to receive vaccinations. Conservative organizations challenged Biden’s mandate, claiming such a policy exceeds the federal government’s authority to regulate businesses. In a six to three decision, the Supreme Court sided with conservatives, claiming that, while the federal government may institute reasonable policies to regulate occupational danger, the vaccine mandate sought to affect public health more broadly. The Supreme Court’s approach to federal vaccine mandates differs from its rulings related to state vaccine mandates, where it has given states significant latitude in mandating vaccines. These differing approaches highlight the United States’ federalist system of government and how vaccine mandates operate within the system, providing insight into public health policy creation and implementation.
In 1902, Cambridge, Massachusetts utilized a state law allowing localities to implement vaccine mandates due to a smallpox outbreak. A local pastor, Henning Jacobson, refused to comply due to a negative childhood experience with vaccination. Subsequently, Jacobson was fined for noncompliance. Jacobson challenged the mandate’s legality, claiming that it violated his liberty. The Supreme Court rejected Jacobson’s claim, citing the Tenth Amendment’s abdication of police powers, or the ability to coerce citizens on behalf of the public good, to the states. In the Supreme Court’s view, maintaining public health via vaccine mandates fell within states’ police powers. As noted above, Jacobson v. Massachusetts has served as the basis for various proceeding decisions related to vaccines, such as vaccine requirements within public schools. In essence, the Supreme Court determined that while states must adhere to citizens’ constitutional rights, they possess great latitude in controlling public health, including the ability to mandate vaccination. 
The nature of the federal government’s ability to regulate public health contrasts starkly with that of the states. States possess broad police powers under the Tenth Amendment, whereas the federal government’s policies must adhere to its enumerated constitutional powers as well as statutory constraints. In McCulloch v. Maryland, the Supreme Court ruled that any federal action rationally related to the execution of its enumerated powers is constitutional per the Elastic Clause, which grants the power “…to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” For example, the federal government may require vaccination for military members, as doing so rationally relates to its enumerated power to raise and support an army and navy. Given that the Constitution does not explicitly endow the federal government with power to regulate public health, any federal effort to do so must relate to an enumerated power, invoking its authority under the Elastic Clause.
Reviewing the nature of President Biden’s vaccine mandate, the Supreme Court found that its mode of implementation did not work within the Elastic Clause. The Occupational Safety and Health Administration (OSHA), which issued and executed the emergency order requiring employees of large businesses to get vaccinated, carries out the federal government’s authority to regulate commerce, promoting the health and safety of employees. In National Federation of Independent Business v. Department of Labor Occupational Safety and Health Administration, the Supreme Court drew a distinction between prevention of occupational hazards, which relate to the agency’s role in administering the government’s enumerated power, and regulation of broad public health phenomena. The ruling opinion states, “This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.” In other words, the Supreme Court found that OSHA’s vaccine policy did not fall within the agency’s role of promoting workplace safety, which is related to the federal government’s power to regulate commerce.
Based on the Supreme Court’s treatment of the federal vaccine mandate and Jacobson’s precedent, the least legally dubious approach to public health control runs through the states. Current trends within the states, which generally reject policies designed to coerce vaccination, contrast with the goals of the Biden administration. According to data from Ballotpedia, an organization that tracks political developments, twenty states have banned proof-of-vaccination requirements related to COVID-19, while only six states attempt to coerce vaccination through incentivization. Twenty four states have opted not to implement any policy regarding COVID vaccine coercion. These differing decisions among states reflect the United States’ federalist system of government as well as the political polarization such a system invites. All twenty states that ban coercive tactics related to the COVID-19 vaccine are led by Republicans, whereas all six states that incentivize COVID-19 vaccination are led by Democrats. That only six states have opted to enact coercive COVID-19 vaccination policies is telling, as President Biden’s requirement would have impacted workers across all fifty states, contradicting the will of forty four states. By rejecting OSHA’s policy, the Supreme Court upheld the federalist ideal of disbursement of power.
In striking down President Biden’s COVID-19 vaccine policy, the Supreme Court never questioned the pandemic’s severity or the rationality of a vaccine mandate; rather, the Court places a strong emphasis on which government entities are constitutionally permitted to regulate public health via mandate. Justice Neil Gorsuch, in his concurring opinion, summarizes the Court’s objection to a federal vaccine mandate, writing, “Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate in this area or any other. It must also act consistently with the Constitution’s separation of powers.” The Supreme Court’s interpretation of the Constitution with respect to vaccine mandates poses a dilemma for the federal government. Pandemics do not respect state borders, threatening all citizens. As such, the federal government intuitively seems to be the proper authority to address such a contagion. While the Supreme Court’s decision does not render the federal government entirely incapable of managing a pandemic, it removes a key weapon from its arsenal. States, not the federal government, must choose whether to utilize vaccine mandates to control the spread of disease.
VII. Concluding thoughts
The presence of vaccine regulations or mandates has proven to have complexities in discussions of its enforcement as well as oppositions. The coercive methods associated with vaccine regulations bring about hesitancy as well as acceptance. As the general public navigates the high volume of information regarding vaccine regulations, they hold great power in the status of health and safety in society.
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