COVID misinformation not protected speech. A man who lied on Facebook about paying someone with COVID to lick items at a grocery store is not protected by the First Amendment, according to the U.S. Court of Appeals for the Fifth Circuit. The court's decision upholds a conviction handed to 40-year-old Christopher Charles Perez last October.
Back in April 2020, Perez posted on Facebook: "My homeboys cousin has covid19 and has licked every thing for past 2 days cause we paid him to … YOU'VE BEEN WARNED." He quickly took down that post, but subsequently shared a story about someone at a local grocery store testing positive for COVID with "Lol..I did try to warn y'all."
When the FBI showed up at his door soon thereafter, Perez apologized and told them he had only been "shit talking." He said his motive was trying to get people to take San Antonio's stay-at-home order seriously.
A federal jury found Perez guilty of violating a federal law against false information and hoaxes related to crimes. He was sentenced to 15 months in prison and a $1,000 fine for spreading false information related to a biological weapon.
The whole thing smacks of insane overreach, initially brought by prosecutors to send a message in a time of heightened tension and paranoia. Perez's actions may have been misguided or irresponsible, but it seems like a dangerous development to classify them as criminal—and a matter for FBI investigation and federal prison, no less.
"The FBI's Joint Terrorism Task Force, along with Weapons of Mass Destruction personnel, conducted this investigation," notes a Justice Department press release from last fall. The task force was established "to investigate and prosecute the most culpable domestic and international criminal actors."
Posting something stupid—and untrue—about a diseased cousin licking groceries apparently counts as a major incident of terrorism now.
In an August 3 decision, a panel of three appeals court judges upheld Perez's conviction but vacated his sentence, sending the case back to a lower court for re-sentencing. (The reason for the sentencing has nothing to do with the offense at hand; it relates to the way the court used Perez's criminal history—which included a 2007 conviction for possession of a controlled substance—to incorrectly establish the sentencing guidelines. Without this miscalculation, the guidelines would have suggested a 12- to 18-month sentence instead of a sentence of 15 to 21 months.)
In his appeal, Perez had argued that "the biological-weapons statute does not extend to conduct such as licking items in a grocery store and that the terrorist-hoax statute is an unconstitutional restriction on free speech," notes the court's opinion, written by Fifth Circuit Judge Jerry E. Smith.
Smith notes that Perez was truthful with the FBI as soon as he was questioned and that "there is no indication that Perez's posts caused public panic." Nonetheless, the court decided that because the ramifications could have been severe if Perez really had paid someone with COVID to lick groceries, merely saying that he did was a federal crime.
"Although the biological-weapons statute does contain an implied exception for local crimes, Perez's purported conduct was serious enough to place him within the purview of federal law enforcement," states the opinion. "If the act had actually been carried out, it could easily have created an outbreak of COVID-19 that could have been hard to contain. The resulting panic could also have been severe" and his "act would have had the potential to cause mass suffering."
The court further found that Perez's posts counted as "true threats." One might assume that a "true threat" requires an intent to actually carry out said threat, but it does not. "The speaker need not actually intend to carry out the threat," the Supreme Court held in a 2003 cross-burning case (Virginia v. Black), which Judge Smith cites here. "Thus, Perez's posts were unprotected true threats, so [convicting] him did not violate his right to free speech."
In addition to arguing that his posts were not true threats, Perez's lawyers argued that the law he was convicted under is overly broad. The law makes it a federal crime to engage "in any conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of" various other criminal statutes. The court also rejected this argument.
FREE MINDS
Research challenges theory that depression stems from low serotonin levels. For a long time, depression has been characterized as a lack of the neurotransmitter serotonin. But new research "looked at 17 studies and found people with depression didn't appear to have different levels of serotonin in their brains to those without," reports BBC Health. "The findings help to rule out one possible way [antidepressant] drugs might work - by correcting a deficiency."
The research was published July 20 in the journal Molecular Psychology.
"The serotonin hypothesis of depression is still influential," write researchers in their paper's abstract. But "the main areas of serotonin research provide no consistent evidence of there being an association between serotonin and depression, and no support for the hypothesis that depression is caused by lowered serotonin activity or concentrations. Some evidence was consistent with the possibility that long-term antidepressant use reduces serotonin concentration."
This "conclusion has been an open secret within mental health circles for at least a decade," notes Sahanıka Ratnayake at Slate. "The very public dispelling of this 'serotonin model' has also removed a key plank in the widely believed but oversimplified myth of mental illness being caused by a 'chemical imbalance.'"The chemical imbalance myth has its roots in the late '70s and '80s when psychiatry was dominated by the desire to understand mental illness in primarily biological terms—as deviations in brain structure, neurochemistry, and genetics. When the first generation of selective serotonin reuptake inhibitors (or SSRI) antidepressants such as Prozac was introduced in the late '70s, a key part of their marketing claimed that they targeted specific neurochemical imbalances.
FREE MARKETS
Contraception denial on trial. A civil case underway in Minnesota asks whether a pharmacist has a right to refuse to sell someone birth control. The case involves a woman who was trying to fill a prescription for Ella, a form of emergency contraception. Per Minnesota Board of Pharmacy rules, a pharmacist can refuse to dispense a medication because of religious beliefs, but they must try and help a person fill the prescription elsewhere.
In this case, the pharmacist in question "may perhaps not have been as aggressive as he might have been in helping her find other options," the Star Tribune's John Reinan told Minnesota Public Radio. "I think that's something the jury is going to have to decide. But he told her, 'well, there's a CVS, you could go there' and he said he could send the prescription up to Brainerd to the Walgreens."
"This is purely a state case," Reinan pointed out. "Minnesota has a Human Rights Act that prevents discrimination of various kinds, including sex discrimination and sex is defined to also include issues relating to pregnancy and childbirth. So the pharmacist in this case, cannot claim his federal constitutional right to freedom of religion, because he's being sued under a state law that guarantees women the right to not be discriminated against in pregnancy and childbirth."
However, the Minnesota Constitution also protects freedom of conscience and religion, and its language "is of a distinctively stronger character than the federal counterpart," the state's Supreme Court noted in a 1990 case (State v. Hershberger).
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• The Justice Department has filed charges against four Kentucky cops involved in the 2020 death of Breonna Taylor.
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• "There's no such thing as taking the pulse of our body politic. It won't sit still long enough," writes Frank Bruni.
• Fears about polio are spreading, as polio is "detected in wastewater samples taken in several locations and at different times in two counties north of New York City."
• "Businesses are getting older," notes The Atlantic. "The average age of new CEOs at Fortune 500 companies is very likely at its record high, having gradually increased throughout the 21st century. And it's not just the boss; the whole workplace is getting older too."
• "A federal judge threw out a lawsuit Monday from three U.S. House Republicans challenging fines they incurred for violating a post-Jan. 6 requirement that members pass through metal detectors before coming to the House floor," reports the Ohio Capitol Journal.
• More lawmakers want to regulate cryptocurrency.
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