Measles Outbreak in Samoa Challenges Free Speech Rights

By Darren Smith, Weekend Contributor

Following a doubly-fatal administration of tainted measles vaccination doses to two children and the consequent loss in confidence of much of the public in vaccines generally, a costly outbreak of measles in The Independent State of Samoa led to a return to early 20th century style public health mandates and a crackdown in free-speech liberties on those who advocate abstention from vaccination.

From October until the present, public health officials listed over four thousand new cases of measles among a population of two hundred thousand. This includes the death of sixty persons of which fifty-two were under four years in age. A leading “anti-vaxx” proponent, a self-styled traditional healer of sorts has been remanded to custody, and faces up to two years imprisonment, for reportedly denouncing vaccination efficacy and accusing the government of causing death among the Samoan People.

The tragic prelude to the outbreak occurred last year after the death of two infants who died after being administered vaccines contaminated with a fatal dose of muscle relaxant. Two nurses were convicted in the manslaughters and received five year sentences. The event eroded confidence in the public health system and along with the influence brought forth by advocates opposed to vaccination only thirty-one percent of children were current in their immunization to measles.

Predictably, the closed island environment conducted the disease on a fatal scale. Moreover the government effectively shut down along with schools and other institutions to embark on a massive vaccination drive to quickly inoculate the population. Children were prohibited from congregating together in public places. Businesses were ordered shut and the public was requested to place red flags outside homes to identify which residents were in need of door-to-door vaccination services.

The events remind many there of history one hundred years ago of the flu pandemic that calamitously hit present day Samoa, claiming a ninety percent infection rate with fatalities among thirty percent of adult males, twenty two percent adult females and ten percent of children. American Samoa at the time had nearly entirely escaped the deaths due to an immediate response by government officials to instigate quarantine measures to forestall the disease.

Which many will correctly argue that strong measures are indicated in combating contagion in an environment such as Samoa, it seems that the emergency lead to the temptation to cast aside free-speech protection of those dissenting to the government’s response.

Presently Samoa remanded a sixty-three year old defendant into custody, charged with violating section 41 of the 2013 Crimes Act which forbids inciting hostility against the Government of Samoa in circumstances where a risk of “lawlessness, violence, or disorder” is present. Police commissioners reported the arrest came after several prior written cease and desist orders mandating the defendant refrain from publicly advocating vaccine abstention and proffering instead vitamin and supplement prophylactics to ward off the disease. The defendant in this case commands international-scale provenance in the anti-vaccination community and is especially prominent in Samoa, especially given the history involving the infants’ deaths. The court justified a remand due to what it believed to be a probability of re-offense during the time period health officials expect the mass-vaccination to require.

Regardless of the views of this defendant I believe the specter of the contagion does not justify the application of vaguely constructed criminal statutes in what is purely an issue of speech. Had the government instead pursued a medical quackery case against a defendant who promises cures for disease that have no basis in science or medicine, that might have carried a bit more credibility. The government would be better served, as our host has in the past stated by answering the bad speech of mountebanks with the good speech of open and legitimate scientific evidence.

For a procedural comparison, I used Washington’s revised code to show a different approach to government actions as shown in the administration of justice to this defendant.

Under RCW 70.28.031 (Powers and Duties of Health Officers) a pertinent part reads:

(d) Whenever the health officer shall determine on reasonable grounds that an examination or treatment of any person is necessary for the preservation and protection of the public health, he or she shall make an examination order in writing, setting forth the name of the person to be examined, the time and place of the examination, the treatment, and such other terms and conditions as may be necessary to protect the public health. Nothing contained in this subdivision shall be construed to prevent any person whom the health officer determines should have an examination or treatment for infectious tuberculosis from having such an examination or treatment made by a physician of his or her own choice who is licensed to practice osteopathic medicine and surgery under chapter 18.57 RCW or medicine and surgery under chapter 18.71 RCW under such terms and conditions as the health officer shall determine on reasonable grounds to be necessary to protect the public health.

(e) Whenever the health officer shall determine that quarantine, treatment, or isolation in a particular case is necessary for the preservation and protection of the public health, he or she shall make an order to that effect in writing, setting forth the name of the person, the period of time during which the order shall remain effective, the place of treatment, isolation, or quarantine, and such other terms and conditions as may be necessary to protect the public health.

(f) Upon the making of an examination, treatment, isolation, or quarantine order as provided in this section, a copy of such order shall be served upon the person named in such order.

(g) Upon the receipt of information that any examination, treatment, quarantine, or isolation order, made and served as herein provided, has been violated, the health officer shall advise the prosecuting attorney of the county in which such violation has occurred, in writing, and shall submit to such prosecuting attorney the information in his or her possession relating to the subject matter of such examination, treatment, isolation, or quarantine order, and of such violation or violations thereof.

(h) Any and all orders authorized under this section shall be made by the health officer or his or her tuberculosis control officer.

(i) Nothing in this chapter shall be construed to abridge the right of any person to rely exclusively on spiritual means alone through prayer to treat tuberculosis in accordance with the tenets and practice of any well-recognized church or religious denomination, nor shall anything in this chapter be deemed to prohibit a person who is inflicted with tuberculosis from being isolated or quarantined in a private place of his own choice, provided, it is approved by the local health officer, and all laws, rules and regulations governing control, sanitation, isolation, and quarantine are complied with.

The fundamental difference is that the reasonable government action authorized in the RCW deals with physical risk posed by persons constituting a disease vector in the population and measured steps to prevent such transmissions. It does not convey authority to censor and imprison dissidents taking exception to scientific medicine or government actions in combating contagious disease.

The goal should be to fight the virus, not the viral video.

By Darren Smith

Sources: Ars Technica | Revised Code of Washington |Albert Wendt, “Guardians and Wards”

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