A Fine Tort

America would never tire of Donald Trump. Endless resentment and fear would take care of that. The world was changing. That wasn’t fair, and everything was a hoax anyway. And that damned virus is a hoax too. Patriots know that, so Trump is safe. These people will return him to the presidency any day now. And then heads will roll. Biden will be gone. Believe it. This will happen.

This is not happening, and these people are tiresome. In fact, they’re dangerous. And everyone else is fed up with them. Trump is gone. You’re outnumbered. Give it up.

Something has changed. The Washington Post’s Dan Diamond and Tyler Pager report that:

Seven months after the first coronavirus shots were rolled out, vaccinated Americans – including government, business and health leaders – are growing frustrated that tens of millions of people are still refusing to get them, endangering themselves and their communities and fueling the virus’s spread.

Alabama Gov. Kay Ivey (R) on Thursday lashed out amid a surge of cases in her state, telling a reporter it’s “time to start blaming the unvaccinated folks.” The National Football League this week imposed new rules that put pressure on unvaccinated players, warning their teams could face fines or be forced to forfeit games if those players were linked to outbreaks.

“I think for a lot of leaders, both in government and in business, patience has worn thin,” said Matt Gorman, a Republican strategist. “There is an urgency that might not have been there a month ago.”

It’s about time, but a bit too late too:

Meanwhile, exhausted health providers say they are bracing for case spikes that are largely preventable, driven by the hyper-transmissible delta variant. “We are frustrated, tired and worried for this next surge – and saddened by the state we find ourselves in,” said Jason Yaun, a Memphis-based pediatrician, who said his colleagues are grappling with an “accumulation of fatigue” since the outbreak exploded in March 2020.

But nothing much helps now:

Biden administration officials increasingly frame the current outbreak as a “pandemic of the unvaccinated,” seeking to persuade and perhaps even frighten some holdouts to get the shots.

But after months of careful cajoling, a growing number of Democrats and Republicans are venting about the sheer number of Americans who remain unvaccinated, particularly as hospitals are becoming overwhelmed in states with low vaccination rates.

Fine, but the Trump Patriots don’t care:

Despite the growing anger, including from some GOP officials, a number of prominent Republicans and conservative media voices continue to shower vaccines with skepticism, and social media disinformation continues largely unabated. “The Biden administration wants to knock down your door KGB-style to force people to get vaccinated!” Rep. Jason T. Smith (R-Mo.) tweeted this month, distorting a new campaign to share information about the shots.

The acrimony is only likely to intensify in coming months as vaccine mandates take effect at hundreds of colleges and universities, following a federal judge’s refusal this week to block Indiana University’s mandate. The Food and Drug Administration also is expected to fully approve the vaccines by fall, which is expected to embolden more employers to require the shots.

Indiana University’s mandate is fine. Colleges and Universities can do that. Private businesses can do that too, except in Florida. A new state law there forbids all businesses, private or not, from requiring that their customer or employees be vaccinated. The fines are enormous. No one can discriminate against those who believe in freedom, denying them their right to show up anywhere they want, for any reason. That one is going to court. The cruise lines made sure of that. Disney and Universal made sure of that. They want to sell safety to their customers. Governor DeSantis and his legislature want them to sell freedom! This will get to the Supreme Court.

But until it does, one day, everything is all messed up:

Americans who are already vaccinated tend to treat the coronavirus threat more seriously than many of the unvaccinated – even though the delta variant is poised to tear through populations that lack protection.

“We do know from our data that the vaccinated tend to be more worried about getting sick from covid than the unvaccinated,” said Mollyann Brodie, a Kaiser Family Foundation executive vice president who oversees the organization’s polling. “The reality, though, is that the new infections, hospitalizations and deaths are almost exclusively among the unvaccinated.”

And the specifics:

The challenge is particularly acute in GOP-led states, where the virus is now surging, but protection against it remains disproportionately low. Alabama, for instance, has seen a 92 percent increase in coronavirus infections and a 72 percent rise in hospitalizations over the past week. But just one-third of Alabamians are fully vaccinated, one of the lowest levels in the nation.

“It’s the unvaccinated folks that are letting us down,” Ivey told a reporter, lamenting that she didn’t know what else to do to encourage vaccinations. “These folks are choosing a horrible lifestyle of self-inflicted pain.”

And then there are football’s new effort:

Under the new rules, a team could be forced to forfeit a game if there is a coronavirus outbreak linked to unvaccinated players. The move has both competitive and financial implications: Players won’t get paychecks for forfeited games, the NFL said.

That should worry them:

About 80 percent of all NFL players had at least one shot before the rules took effect, said league spokesperson Brian McCarthy, who credited seminars about the vaccines’ benefits, on-site vaccinations and other tactics.

“We are pleased but not satisfied,” McCarthy said, defending the NFL’s push to encourage more shots.

Some players, like Arizona Cardinals wide receiver DeAndre Hopkins, have complained the new rules penalize them for being unwilling to get the vaccine. Buffalo Bills wide receiver Cole Beasley, the league’s most vocal critic of the vaccine, also publicly questioned a teammate’s support for the rules.

“No one’s forcing you to do anything,” said Torrey Smith, a retired NFL player who’s spoken about the benefits of the vaccines. “You still don’t have to do it. But understand your freedom of choice not to get vaccinated: It’s putting other people at more of a risk and the organization at more of a risk.”

“Because of the NFL’s protocols, it puts you in a situation where you can definitely hurt your team long term, and you’re going to pay for it – literally,” Smith added.

But that’s your choice. Go ahead. End your career. Join your friends:

A new poll from the Associated Press-NORC Center for Public Affairs Research found that 80 percent of Americans who remain unvaccinated said they probably or definitely will not get the vaccine. The survey also found 64 percent of unvaccinated Americans have little-to-no confidence in the vaccines working against variants, despite evidence showing otherwise.

Public health experts have defended the growing push for vaccination-related requirements, saying that the personal choice to get vaccinated should not be prioritized over community health.

“We do have personal freedom in the United States,” said Brian Castrucci, head of the de Beaumont Foundation. “But those freedoms and the choices people make are not without consequences for them or others they may impact.”

No, no, be gentle:

Some health-care officials said that the recent surge in cases is even more reason to stick with messages that patiently walk through the benefits of being vaccinated, rather than shift to a more aggressive tone.

“Our goal is to meet them where they are so they understand why the vaccination is so important right now,” said Ajay Kumar, chief clinical officer of Hartford Healthcare in Connecticut. “The vaccine, at least in our experience, has modified the course of the disease and made it much milder and much easier to manage.”

Reason with them, or alternatively, tell them to wake the hell up:

Anthony Scaramucci, founder and co-managing partner of SkyBridge, told CNBC on Friday he has mandated Covid shots at his hedge fund’s office.

He also called on all eligible Americans to go out and get vaccinated.

“We’re a private company. If somebody wants to fight me over the vaccine mandate, that’s fine. Let’s take it to the court,” Scaramucci said on “Squawk Box,” while imploring other firms to follow suit.

“Make a decision. You’re a private company. Let’s cut it out. We’ve got to keep people safe. Get vaccinated. If you don’t want to get vaccinated, leave. That should be the message, and people will start getting vaccinated.”

Just get serious:

Scaramucci, who had a brief stint as White House communications director in the Trump administration, sought to push back on various conspiracy theories about the Covid vaccines. He stressed they are safe and effective at preventing severe disease and death and have been shown to reduce transmission of the virus.

“I don’t have a microchip in my body. It didn’t genetically alter my cells. What it’s doing is protecting me from the worst pandemic in last 100 years, and it’s allowing our economy to open up,” Scaramucci said, noting he also sees it as his responsibility as a father of kids who aren’t yet eligible for the vaccine. “If you have young children… vaccinate yourself to protect your children.”

Scaramucci acknowledged that some people may be distrustful of government and large institutions, but he said the science of vaccination is clear. The more Americans who get vaccinated, the better for the entire country, he said.

“I don’t like the totalitarian nonsense. It’s not about that. This is about once in a while we have to team up as a society to protect each other,” Scaramucci said. “If we all get vaccinated, we’re going to be out into society faster and the economy is going to grow faster, and there will be more jobs and more income.”

But what about freedom? David Frum sees this:

In the United States, this pandemic could’ve been over by now, and certainly would’ve been by Labor Day. If the pace of vaccination through the summer had been anything like the pace in April and May, the country would be nearing herd immunity. With most adults immunized, new and more infectious coronavirus variants would have nowhere to spread. Life could return nearly to normal.

But that became politically impossible:

Experts list many reasons for the vaccine slump, but one big reason stands out: vaccine resistance among conservative, evangelical, and rural Americans. Pro-Trump America has decided that vaccine refusal is a statement of identity and a test of loyalty.

And that meant this:

In April, people in counties that Joe Biden won in 2020 were two points more likely to be fully vaccinated than people in counties that Donald Trump won: 22.8 percent were fully vaccinated in Biden counties; 20.6 percent were fully vaccinated in Trump counties. By early July, the vaccination gap had widened to almost 12 points: 46.7 percent were fully vaccinated in Biden counties, 35 percent in Trump counties. When pollsters ask about vaccine intentions, they record a 30-point gap: 88 percent of Democrats, but only 54 percent of Republicans, want to be vaccinated as soon as possible. All told, Trump support predicts a state’s vaccine refusal better than average income or education level.

To overcome this resistance, some state and local political leaders have offered incentives: free beer, free food, tickets for a $1 million lottery. This strategy is not working, or not working well enough. Part of the trouble is that pro-Trump state legislatures are enacting ever more ambitious protections for people who refuse vaccines. They are forbidding business owners to ask for proof of vaccination from their customers. They are requiring cruise lines, sports stadiums, and bars to serve the unvaccinated. In Montana, they have even forbidden hospitals to require health-care workers to get vaccinated.

And the rest had to happen:

Pro-Trump vaccine resistance exacts a harsh cost from pro-Trump loyalists. We read pitiful story after pitiful story of deluded and deceived people getting sick when they did not have to get sick, infecting their loved ones, being intubated, and dying. And, as these loyalists harm themselves, and expose all of us to unnecessary and preventable risk, publications have run articles sympathetically explaining the recalcitrance of the unvaccinated. These tales are the 2021 version of the Trump safaris of 2017, when journalists traveled through the Midwest to seek enlightenment in diners and gas stations.

Reading about the fates of people who refused the vaccine is sorrowful. But as summer camp and travel plans are disrupted – as local authorities reimpose mask mandates that could have been laid aside forever – many in the vaccinated majority must be thinking: Yes, I’m very sorry that so many of the unvaccinated are suffering the consequences of their bad decisions.

I’m also very sorry that the responsible rest of us are suffering the consequences of their bad decisions.

That’s what changed for many Americans this week:

As cases uptick again, as people who have done the right thing face the consequences of other people doing the wrong thing, the question occurs. Does Biden’s America have a breaking point? Biden’s America produces 70 percent of the country’s wealth – and then sees that wealth transferred to support Trump’s America. Which is fine; that’s what citizens of one nation do for one another. Something else they do for one another: take rational healthcare precautions during a pandemic. That reciprocal part of the bargain is not being upheld…

Will Blue America ever decide it’s had enough of being put medically at risk by people and places whose bills it pays?

It may, but John Culhane, the H. Albert Young Fellow in Constitutional Law at Delaware Law School, has another idea:

Since the vaccines for COVID-19 became available, public health authorities, respected medical professionals, some employers, and responsible politicians have been urging, coercing, and bribing us all to get immunized. With the emergence of the more infectious, more virulent, and now dominant delta variant, soaring positive rates have pumped new urgency into these pleas. Yet vaccine uptake rates have slowed to a crawl, and most of those who remain unvaccinated say they don’t plan to change their minds. Unless this changes, expect higher mortality rates, breakthrough infections, and potentially a return to the pandemic lockdown state we’d all hoped we’d left behind.

A constellation of reasons can be cited for ongoing vaccine hesitancy, but one key factor is the prevalence of quack “experts” willing to misinterpret data, lie about statistics, and just plain make stuff up.

So, go after the source of this nonsense:

Leading the misinformation charge has been Fox News – and particularly Tucker Carlson. Night after night, Carlson has provided a platform for sowing fear and confusion among his viewers about the efficacy of the vaccine and its side effects. Although the network has recently sounded a more responsible note, that turnabout has by no means been across the entire network and it comes too late for an untold number of people who have been newly sickened or died from the disease, and who might have been saved through immunization. There may actually be some legal remedy, though, for the damage wrought by the network. COVID victims who were taken in by Carlson’s vaccination misinformation, or their estates, may be able to sue Fox News under the ancient common law theory of fraud. They would have a reasonably good chance of success, too.

Yes, sue them:

Tort law allows anyone injured by the intentional bad act of another to sue for personal injury, property damage, or economic loss caused by the wrongful activity. The specific claim that relates to harm caused by deliberate misrepresentations is fraud, and, depending on what misinformation someone ingested, and how they reacted to it, it’s easy to imagine that many viewers would be able to state a good claim. What’s needed to prove a case for fraud is clearly established through centuries of judicial decisions.

Step one:

First, the plaintiff has to prove that the defendant made a misstatement of fact, knowing that it was false or with reckless disregard as to whether it was true or false. Carlson and Lara Trump, as a guest on Sean Hannity’s show, say that COVID is really about “social control,” and where Carlson calls the COVID response a “scandal.” There’s Carlson questioning whether the vaccine works, since those who are vaccinated are still urged to take precautions: “Maybe it doesn’t work, and they’re simply not telling you that.” (This is not how vaccine efficacy works. No immunization is 100 percent effective, so there’s always a small chance of infection, a smaller chance of illness, and an infinitesimally small chance of death even among the fully vaccinated.)

Want more? Beyond Carlson, there are some Fox News personalities misrepresenting the door-to-door effort by the Biden administration to educate people and answer their questions about the vaccine. It’s the Taliban! It’s a violation of medical privacy! It’s to force you to take the vaccine! These purveyors of misinformation are either lying, or acting in reckless disregard of truth versus falsity by not doing even the most basic research to check out what they’re spewing. And it’s also considered a misrepresentation to state a half-truth, leaving out vital information needed to place a statement in context. That’s exactly the case with Carlson’s mock questioning of the vaccine’s efficacy; it paints a willfully incomplete picture.

Step two:

To prevail on a fraud claim, the plaintiff next has to show that the defendant intended that the injured party rely on the misrepresentation (this can be inferred from the fact that Fox holds itself out as a purveyor of news) and that the plaintiff reasonably relied on the misstatement. Each potential plaintiff would have to allege, and then prove, that they had relied on Fox and the “experts” making the statements that induced them to forgo vaccination. It’s impossible to imagine that at least some of the sickened and killed didn’t count on Carlson, his guests, and the rest of the Fox misinformers, and it would be hard to hear Fox attorneys claim that no one should “reasonably” rely on what their news station puts out.

And step three:

The final requirement for a successful fraud claim is a showing of economic loss, which would be easy enough. Hospital bills not covered by insurance, lost wages, and even lost income from the deceased, in a wrongful death situation, are some ready examples.

This might work:

Fox News watchers rely heavily on what they hear on the network. They trust Fox to deliver truthful information. No greater breach of that trust can be imagined than relating misinformation designed to keep people away from lifesaving vaccines. An article in the Daily Mail quoted a doctor from Alabama – where vaccination rates are the lowest in the nation -who works with sick and dying, and young, COVID patients. Here’s a heartbreaking excerpt from her Facebook post: “One of the last things they do before they’re intubated is beg me for the vaccine. I hold their hand and tell them that I’m sorry, but it’s too late. A few days later when I call time of death, I hug their family members and I tell them the best way to honor their loved one is to go get vaccinated and encourage everyone they know to do the same. They cry. And they tell me they didn’t know. They thought it was a hoax.”

How many of these people relied on Fox News? Perhaps we will one day find out in court.

Perhaps that one day will be soon. Enough is enough.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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1 Response to A Fine Tort

  1. Tlaloc says:

    Tort law is not the answer. Between the strict scrutiny that courts will require for the issue (as this falls squarely under first amendment free speech rights), the difficulty of proving they knew the claims were false, and the difficulty of showing a specific harm directly arising from their behavior that will survive a standing challenge in court…chances of victory are essentially 0.

    Add to that that it will take years and such cases will do absolutely no good in the timeframe that matters.

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