I woke up this morning with a terrible itch in my mind. I want to sue the government. I’m not a lawyer, at least not yet, and I know that governments have sovereign immunity that typically prevents them from being sued. But, it didn’t and doesn’t seem right that I feel so lied to and unprotected during this pandemic. What is more, I know I am not deluded. Either it is bad or it isn’t. Either it is spreading and lethal, or it isn’t. Either precautions help, or they don’t. It can’t be that ambiguous from a viral-behavioral perspective. Government leadership refuses to speak or model a consistent, truthful, and accountable model for the social welfare, leading to such absurd reductions (in Ohio, for example) as that each individual school child can decide whether s/he wants to wear a face-covering this fall. So, what gives? Why all the half-, mixed, mis-, and disinformation?
Freedom of speech in the United States of America is not unequivocal. In 249 U.S. 47 (1919), the Supreme Court decided that it was illegal to circulate anti-draft literature during World War I in Schenck v. United States. According to Justice Oliver Wendell Holmes, Jr., words that cause a “clear and present danger” are not protected speech. For, he went on to say famously that even: “The most stringent protection of free speech would not protect a man in falsely shouting ‘Fire’ in a theatre…” In another statute, 18 U.S. Code §1038 says that anyone who engages in false information and hoaxes, with any conduct to convey false or misleading information that may be reasonably believed is subject to criminal punishment of fines or imprisonment, of anywhere between five years to life, if harm or death results. Furthermore, under this code, defendants may be liable for civil penalties. Our highest court has maintained that speech which is obscene, fraudulent, defaming, inciting, threatening, and/or integral to already criminal conduct is not protected under the First Amendment. In short, one can’t just lie legally in dangerous, public ways that cause harm to persons, property, social welfare, and/or result in death. You and I can’t do it, so why can thought leaders, television personalities, legislators, and executives in government get away with it?
Here following is an example of what I consider to be a trend in dangerous, public speech. On January 14, the World Health Organization tweeted that “Preliminary investigations conducted by the Chinese authorities have found no clear evidence of human-to-human transmission of the novel #coronavirus (2019-nCoV) identified in #Wuhan, #China,” even though, according to its own website, WHO noted on that same day that it was certainly possible that the virus could be spread by human-to-human transmission. They knew theoretically; they may have known actually; it was their responsibility to know absolutely before they tweeted deadly misinformation. (I understand that WHO is not under the auspices of US governance, but we have historically funded WHO and deferred initially to their guidance for public policy.)
On April 3, 2020, the CDC began recommending that Americans wear face coverings in public to slow the spread of the disease. Yet, on April 6, 2020, WHO said mask wearing by healthy people could result in unnecessary face touching and take away masks from the medical professionals who needed them, and thus they discouraged widespread use of masks by healthy people. They were also concerned, apparently, that people would rely on masks and desist from washing hands. In short, they assumed average people would be irresponsible if we wore face coverings.
Now, in a remarkably cryptic doublespeak, WHO says: “Non-medical, fabric masks are being used by many people in public areas, but there has been limited evidence on their effectiveness and WHO does not recommend their widespread use among the public for control of COVID-19. However, for areas of widespread transmission, with limited capacity for implementing control measures and especially in settings where physical distancing of at least 1 metre is not possible – such as on public transport, in shops or in other confined or crowded environments – WHO advises governments to encourage the general public to use non-medical fabric masks.”
Of course, these three or so points on this particular map are but a miniscule sampling of (shall we give it a name?) The COVID Messaging War. Who could blame people everywhere for not getting it right? Today, because of disinformation, misinformation, and misleading rationales about the efficacy of face coverings and the seriousness of this disease, we are fighting each other at the local ice cream shops over whether to cover up and coughing on cabbage in the produce aisle. “Mask” has become some divisive contronym for freedom and oppression, while media and news personalities capitalize on opinion to jockey for viewers and funds as politicians use our collective vulnerability and individual fears to jockey for office. This situation poses to us a “clear and present danger” of misleading information that heralds from the world’s in fact most empowered and thereby theoretically credible sources (including news outlets, the until-recently-predominantly U.S. funded World Health Organization of the United Nations, the U.S. Centers for Disease Control and Prevention, and the U.S. federal and state governments). It seems to me that they, all of them, are at once variously shouting “fire” and “nothing to see here” in the theaters of our lives (that is, the schools, groceries, parks, and restaurants). And, what is more? We pay for it, whether through our support of media outlets or through compulsory taxation.
On this Fourth of July, I find myself considering my frustration. I like my home, and I love the people who comprise this varied and dynamic and still-forging country. But, I am horrified by the incontrovertible data about how disease is ravaging us and how poorly our country is handling it, from the President, to the befuddled governors that don’t want to issue any guidance any longer, to the celebrity opiners, to the unmasked masses at beaches and protests, to the spitters in aisle seven, we should be better. Moreover, I think people of the United States have a legitimate case under the Federal Tort Claims Act to sue the government for damages to life and property for the abject failure of leadership to keep us safe in these times, especially in consideration of the statues that do not protect false and dangerously misleading information. And, every purportedly reputable news outlet or personality that has misinformed the public about this disease should likewise face criminal and civil charges.
I am frustrated, specifically as a single mother, because I feel afraid and overwhelmed and as if the capitol has fallen and I am darting across enemy lines with my kids under my skirt. There’s no one to help, no guidance I trust, and I’m lysoling the bag of celery so intensely that I’m sure we’ll die of carcinogens if the other thing doesn’t get us. But, underneath that sense of being hunted in the woods, I find another feeling. That feeling is Resistance. Rage. No. Stop. That I’m Not Playing Any Longer.
I started off asking myself what does wanting to sue the government have to do with women or feminism, specifically? I decided Everything. The ineptitude of these structures of leadership to which we have been subjected has at last shown itself to be killing us. We need to change the whole script, beginning with the inverted metric that minimalist success of our society is to be gauged by the welfare of the least-voiced, most vulnerable women among us. Only women can assume the reigns of responsibility for a new, non-hunted, non-running, smart and sober paradigm shift, because no one will do it for us.
In the late 5th century BCE, Aristophanes’ comedy Lysistrata toyed with idea of women’s power to end the Peloponnesian War between Greek city states through women’s banding together and denying sex to their bellicose men. It’s a comedy, of course, and sex as currency isn’t really the direction we want to pursue here. But, there is a kind of eerie power in the idea that women could simply change everything by not playing along, by changing the script, by using our voices and our minds to stop it all and start it afresh. Women need truly, deeply, powerfully, and irrevocably to come together. We need to step out of participation in every binary script that keeps us divided. We need to discover and employ every tool of empowerment to reframe and redefine the commonweal, starting perhaps with a lawful action of Women vs. the United States of America over the handling of the Covid-19 crisis.
I used to laugh at the grandiosity of Pope Paul VI’s address to women at the close of the Second Vatican Council on December 8, 1965, being myself heartily unconvinced that the Council gave women any true support needed to carry out the charge therein issued. He said: “Women of the entire universe, whether Christian or non-believing, you to whom life is entrusted at this grave moment in history, it is for you to save the peace of the world.” It is about time, I think, to take him up on it.