In late March, I watched as some 300 lawyers, doctors, and activists assembled in the aggressively beige conference wing of the Midtown Atlanta Hilton for the inaugural Covid Litigation Conference. A promotional flier promised that the event would “provide attendees with the resources they need to begin taking on Covid cases for the first time or to expand the range of Covid claims that they currently handle.” An unsuspecting lawyer could have been forgiven for expecting tips on how to help clients who had been disabled by Covid that they caught at their factory jobs, for instance, or those whose medical bills their insurance refused to pay.
But those kinds of cases were entirely absent from the agenda. Rather, the topic was a very particular kind of litigation: How best to advance the movement that organizers called “medical freedom.” In other words, how to sue the people who created and enforced public health measures like vaccine and mask requirements, policies against Covid misinformation, and treatment protocols for hospitalized Covid patients.
The conference organizers wore t-shirts emblazoned with the slogan “Misinformation Superspreader.” Steve Kirsch, a Silicon Valley entrepreneur, philanthropist, and a main organizer of the event, told me that the slogan was a cheeky reference to what he saw as the unfair labeling of anti-vaccine activists as peddlers of misinformation. “We said, ‘Okay if that’s what they’re calling us,” he explained, “let’s kind of make fun of it.” Indeed, many of the attendees seemed to see themselves as underdogs, scrapping against government and pharmaceutical behemoths.
What those underdogs didn’t mention during the sessions, though, is their friends in high places: specifically, federal judges who seem to be sympathetic to their aversion to pandemic policies. Pointing to some of the victories that medical freedom lawyers have enjoyed in US District courts, Dorit Reiss, a public health lawyer and law professor at the University of California College of the Law, noted, “They’re having some success in the federal system in front of Trump-appointed judges, and they’re very much forum shopping right now.” Adam Winkler, a constitutional law scholar at the University of California-Los Angeles, agreed. “The courts have issued a lot of what were once thought to be outlandish kinds of rulings with regard to any number of issues like abortion and affirmative action,” he said. “I’d expect that encourages people to bind hope to the prospects of lawsuits that they would otherwise seem certain to lose.”
When I arrived, I didn’t think I’d get past the Misinformation Superspreaders and make it into the ballroom where the event was taking place. The media liaison for the conference, Trevor FitzGibbon, asked me if I was there to write about disinformation, and he seemed to balk at my affirmative answer. When I said I worked for Mother Jones, he noticeably brightened. He had come up in the PR business working for prominent progressive candidates and groups, he explained, including Barack Obama, MoveOn, and Planned Parenthood, which I took to mean that he considered us to be politically kindred spirits. And then he let me into the ballroom.