Falsehoods and the Patois of Pandemics— a Playbook

Falsehoods and the Patois of Pandemics—

A Playbook

Dina Temple-Raston* & Harvey Rishikof**

I. THE SPANISH FLU—THE PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

II. A NEW YORK STYLE PANDEMIC – FOLLOW THE PLAYBOOK . . . . . . . . . . . 215

III. THE GENERAL LEGAL FRAMEWORK OF COMMUNICATIONS FOR PUBLIC

SAFETY ISSUES—FEDERAL AND STATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

A. Legal Issues Related to Public Health Data Collection,

Analysis, and Dissemination . . . . . . . . . . . . . . . . . . . . . . . . . 220

B. Concepts Related to Public Health Data Collection,

Protection, and Dissemination. . . . . . . . . . . . . . . . . . . . . . . . 221

C. Federal Laws Related to Public Health Data Collection,

Protection, and Dissemination. . . . . . . . . . . . . . . . . . . . . . . . 221

IV. THE UNADDRESSED CHALLENGE—SOCIAL MEDIA AND DISINFORMATION 225

I. THE SPANISH FLU—THE PRECEDENT

The mysterious illness f‌irst began sweeping through Haskell County, Kansas,

in January 1918. Residents of this rural community were laid low by coughs and

fevers, and while most recovered, for some the disease was lethal. Some histori-

ans now believe that a handful of Haskell County “super spreaders”—men from

the area who were asymptomatic—may have helped introduce the virus to a

nearby military base, Camp Funston. Soldiers at the fort were preparing to ship

out to Europe to take part in the “war to end all wars”—World War One.

Within weeks of the Haskell County contingent’s arrival at Funston, historian

John M. Barry writes in The Great Inf‌luenza: The Story of the Deadliest

Pandemic in History, more than a thousand soldiers were hospitalized, and thou-

sands more were nursing symptoms in the barracks.

1

Although some researchers suggest that the 1918 pandemic began elsewhere—

in France a few years earlier, or China in 1917—other studies indicate that it

began in Haskell County, where farmers were raising cattle and pigs—beneath a

major migratory route for a variety of birds. The virus likely jumped from birds

to hogs to us. Doctors at the time observed lung tissue “full of hemorrhages.”

* Dina Temple-Raston is an Adjunct Professor at Temple Law School and an NPR Investigative

Correspondent. © 2020, Dina Temple-Raston and Harvey Rishikof.

** Harvey Rishikof is a Visiting Professor at Temple Law School and Director of Policy and Cyber

Security Research at the University of Maryland’s Applied Research Laboratory for Intelligence and

Security.

1. See John M. Barry, How the Horrif‌ic 1918 Flu Spread Across America, SMITHSONIAN MAG., (Nov.

2017), https://perma.cc/YK25-6WV6.

213

Some thought they had discovered a new disease. The pandemic lasted 15 months

and killed an estimated 670,000 Americans.

As deadly as the disease was, what proved to be an even bigger threat was the

decision by governments around the world to systematically “lie” about it.

President Woodrow Wilson established the f‌irst modern propaganda off‌ice,

the Committee on Public Information (CPI). It was led by investigative reporter

and writer George Creel. Creel set out to methodically reach every person in the

United States multiple times with pamphlets that explained how they could con-

tribute to the war effort. The CPI was inspired by a Wilson advisor who wrote

that to be effective, for the CPI “[t]ruth and falsehood are arbitrary terms. . . . The

force of an idea lies in its inspirational value. It matters very little if it is true or

false.”

2

Spin, it appears, has a long and strong executive tradition.

One way to ensure the CPI’s success was to make it the sole messenger. The

Sedition Act of 1918

3

made that possible. An extension of the Espionage Age of

1917,

4

it covered a broader range of offenses, notably speech and expression—

effectively muzzling the Fourth Estate’s ability to write honestly and critically

about events. Among other things, the Sedition Act made clear that to so much as

“utter, print, write, or publish any disloyal, profane, scurrilous, or abusive lan-

guage” about the United States was an offense punishable by up to 20 years in

prison.

In the end, the Act not only restricted the press but cleared the way for public

health off‌icials to lie. These off‌icials assured the American people that the disease

was easily contained, suppressed information about outbreaks in military training

camps, and allowed life to go on as if nothing was amiss. (In one case a parade in

Philadelphia was allowed to go forward without health warnings. When local

schools were f‌inally closed as the disease ravaged the city, reporters wrote that it

wasn’t a public health measure and there was no need to be alarmed.)

Indeed, the absence of real world reporting is why the disease came to be

known as the “Spanish Flu.” Though the virus had ravaged Britain, France, and

other parts of Europe long before it reached Spain, the fact that journalists had

not been allowed to write about it, to avoid potentially darkening morale during

the war, meant the virus became the proverbial tree in the forest that no one heard

fall. It was only after the virus struck the king of Spain that it made the news.

Spain wasn’t in the war, so its journalists and public off‌icials covered the pan-

demic extensively. Spain was not the f‌irst to succumb to the disease, just the f‌irst

to have journalists who could say so.

2. Stephen L. Vaughn, quoted in THE THREAT OF PANDEMIC INFLUENZA: ARE WE READY?:

WORKSHOP SUMMARY 65 (Stacey L. Knobler et al. eds., 2005), https://perma.cc/HLL7-2UPT.

3. Pub. L. No. 65-150, 40 Stat. 553 (repealed 1920).

4. Pub. L. No. 65-24, 40 Stat. 217 (codif‌ied as amended at 18 U.S.C §§792-799 (2018)).

214 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 11:213