University of Miami Law Review


As the anti-vax industry continues to stoke fear and incite vaccine resistance, some means must be found to detoxify their false messages. Counterspeech, the preferred mode to deal with unfortunate rhetoric, is both ineffective and counter-effective when addressing factual “scientific speech” addressing health, I show here that many instances of the most potent anti-vax speech arise in the context of arguably commercial speech. I therefore investigate other free speech protections available to shield factually false anti-vax speech used in this context, concluding that while complete First Amendment protection may exist in the context of political speech (without proof of fraud), protections are more limited in the context of commercial speech. I then investigate the commercial ties of anti-vax groups and their mechanisms used in their strikingly effective outreach targeting insular audiences: the conference and pamphlet vehicles
Research indicates that these anti-vax vehicles incorporate fingerprints of commercial enterprise, thereby making them eligible for regulation under the doctrine of compelled speech. I conclude by proposing that this approach allows for requiring imposition of warning labels on pamphlets as well as conference advertising and marketing. This novel approach may provide the salutary benefit not obtainable by counterspeech.