San Diego Law Review

Library of Congress Authority File


Document Type



Balancing protecting and compensating victims of harmful fake news and protecting freedom of speech and the information flow is both important and challenging. Vaccines are one area where misinformation can directly cause harm. When misrepresentation leads people to refuse vaccines, disease outbreaks can happen, causing harm, even deaths, and imposing costs on the community. The tort of negligent misrepresentation that causes physical harm appears a custom-made remedy for those affected. However, courts—appropriately— narrowed the tort to protect freedom of speech and the flow of information. This Article uses an especially egregious example of anti-vaccine misrepresentation to examine the boundaries of the tort. In 2017, a measles outbreak in Minnesota sickened tens of people, mostly young children of the Somali community in Minneapolis, and hospitalized over twenty young children. The outbreak can be clearly linked to efforts by anti-vaccine groups to target the Somali community and convince its members that the measles, mumps, rubella vaccine (MMR) causes autism—a claim countered by extensive evidence. Using this case, the Article examines under what circumstances promoters of misinformation can be held liable for negligent misrepresentation. We suggest two distinctions that would affect liability. First, we see a distinction between instructional publications—telling how to—which should not be treated differently when published in a public forum instead of a manual, media-sponsored activities—which should not receive special protection—and pure information, including simulation, which does receive more First Amendment protection. Second, even within the category of providing information, we see a distinction between counseling-like situations and purely public speech, and suggest that while the latter deserves more protection, liability can be appropriate in the former.