Contagion

Contagion is about an outbreak of a new kind of flu virus, highly contagious, with a mortality rate between 20-30%. It’s being received quite well and is definitely worth a viewing. One has to believe that the producers deliberately chose the tenth anniversary of Sept. 11, 2001 for its release, and it’s not a bad thing to see in that context. We’ll try to avoid spoilers here–you can probably already guess that lots of people die–but there are really some quite interesting legal questions to be discussed.

I. Police Power and Public Health

Perhaps the biggest question is the extent to which state and federal governments can impose drastic restrictions on civilian life to prevent the spread of the virus. It isn’t exactly clear from the film which government is imposing things like curfews, but suffice it to say that while the federal government would have some difficulty doing this, there is absolutely no question that state governments can.

The question has to do with so-called “police power“. The term has to do with the ability of a government to “regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants.” The federal government, under current constitutional jurisprudence, does not have general police power, as the Constitution does not provide for it and the Tenth Amendment reserves all powers not granted to the federal government to the states and the people. Granted, the federal government has been eating away at the Tenth Amendment for the better part of two hundred years, particularly since the 1930s, but the fact remains that compared to other national governments, the United States federal government is still one of remarkably limited powers. It cannot really regulate traffic, cannot prosecute or punish most crimes, and has remarkably little ability to impose and enforce public health regulations, the FDA notwithstanding.

But the states have no such limitations. If a governor decides he wants to impose a curfew, as long as he can point to some reason having to do with public health and/or safety which would justify such a regulation, he can probably do it. Regulations to protect public “morals” are somewhat out of favor–though they certainly still exist–but regulations to protect public health and safety are subject to very little scrutiny, provided the state can cogently describe the danger in view. So the scenes showing the Centers for Disease Control and Prevention, a federal agency, interfacing with state public health departments is quite accurate. There might be some questions about whether the CDC–or FEMA, or any other agency–could simply commandeer something like a stadium to contain an epidemic, there is absolutely no question that they could cooperate with local authorities in getting that done. Indeed, many local authorities look to federal agencies for assistance in coordinating and implementing their responses to disasters. The aftermath of hurricane Katrina caused a significant black eye for FEMA, but no small part of the blame there lies with the reaction, or lack thereof, of the Blanco administration. Really, the lack of coordination between state and federal agencies was a significant part of the problem there.

In short, the way Contagion portrays the cooperation between federal and state agencies is accurate both in its display of federalism at work but also in the turf wars and other political wrangling that goes along with any attempt by such agencies to work together.

II. Liability of Bloggers/Journalists for Misinformation

Then there’s the issue of Jude Law’s character, a conspiracy-minded blogger who believes that the disease is treatable with forsythia. He attacks the CDC for saying a vaccine is needed and then discourages people from taking the vaccine when it is developed, alleging that it is a fraud perpetuated by the medical establishment for the benefit of big pharma.

Turns out he’s 1) completely full of it, and 2) making a mint by colluding with a hedge fund manager who invests in the companies producing forsythia. Law’s character is probably based on real-life vaccine denialists, including Andrew Wakefield and Gary Null, both of whom have been exposed as outright frauds but whose misinformation is probably responsible for the recent measles outbreaks. At the end of the movie, the authorities appear to arrest him for his role in the disaster, though it’s not entirely clear for what.

This may actually represent some wishful thinking on the part of the producers. Wakefield and Null are notorious for their flaunting of the authorities’ position on vaccination, but rather than being prosecuted or sued, Wakefield has actually brought a libel case against publications criticizing him. The litigation was dropped and he was forced to pay the defendants’ legal costs, but he remains otherwise unpunished for his actions. But if Wakefield, Null, or someone else were involved in resisting attempts to control a truly serious epidemic, it’s plausible that the government would look a little more closely at their activities.

The question is whether the First Amendment would protect them, and that’s an open question, which is largely why no action has been taken thus far. But it turns out that sedition, i.e. speech deemed to promote insurrection against the established order, is still a viable charge and arguably quite fitting. Telling people not to get their kids immunized for fear of autism is one thing, but though the damage to human lives is real, it doesn’t pose an existential threat to society. Telling people not to get immunized against a potentially civilization-ending disease is something else entirely, particularly when vaccinations are seemingly mandated and tracked by the government. It seems entirely plausible that Law’s character could be subject to civil liability too, both for libel against the manufacturers and for injuries to those people who believed him.

III. Conclusion

Those are just two of the main issues we spotted in Contagion, but the film on the whole gets very good marks for its depiction of how the government would likely respond to such an event. Someone did their homework.