The ACLU Says California’s Ban on COVID-19 ‘Misinformation’ From Doctors Is Gratuitous and Unconstitutional
A California law that threatens to punish doctors who disseminate COVID-19 “misinformation” is gratuitous and unconstitutional, two chapters of the American Civil Liberties Union (ACLU) argue in a brief they filed in federal court last week. The ACLU of Northern California and the ACLU of Southern California say decisions by the U.S. Court of Appeals for the 9th Circuit, which includes California, make it clear that the law, A.B. 2098, is inconsistent with the First Amendment.
“Under the Ninth Circuit’s well-established framework for evaluating regulations of healthcare professionals, AB 2098 sweeps in exactly the kind of protected speech physicians rely on in their doctor-patient relationships,” the brief says. “AB 2098 is a content-based regulation encompassing speech protected by the First Amendment. Strict scrutiny therefore applies.” The ACLU adds that the state has not come close to meeting that test.
A.B. 2098, which is scheduled to take effect on January 1, redefines the “unprofessional conduct” policed by the Medical Board of California (MBC), a state agency charged with licensing and disciplining physicians, to include COVID-19 “misinformation.” That category includes “false or misleading information” regarding “the nature and risks of the virus,” “its prevention and treatment,” and “the development, safety, and effectiveness of COVID-19 vaccines.” Medical advice qualifies as “misinformation” when it is “contradicted by contemporary scientific consensus.”
In Hoeg v. Newsom, a lawsuit it filed this month in the U.S. District Court for the Eastern District of California on behalf of five physicians, the New Civil Liberties Alliance (NCLA) argues that A.B. 2098 is unconstitutionally vague and violates the First Amendment by penalizing doctors for candidly sharing their honest opinions with patients. The Liberty Justice Center (LJC), which is representing two other physicians, makes similar claims in McDonald v. Lawson, a lawsuit it filed last month in the U.S. District Court for the Central District of California. The ACLU brief supports the plaintiffs in the latter case.
The state claims A.B. 2098 does not implicate the First Amendment at all because it merely regulates professional conduct. Not so, the ACLU says: “AB 2098 undoubtedly reaches speech protected by the First Amendment. It expressly limits the ability of physicians to speak about certain topics to their patients and thereby restricts their ability to communicate. The law defines the prohibited dissemination as a licensed professional’s ‘conveyance of information from the licensee to a patient under the licensee’s care in the form of treatment or advice.'”
In the 2002 case Conant v. Walters, the 9th Circuit held that the federal government violated the First Amendment when it threatened to revoke the prescribing privileges of doctors who recommended medical marijuana to their patients—advice that was contrary to the “scientific consensus” as federal officials defined it. “An integral component of the practice of medicine is the communication between a doctor and a patient,” the appeals court said. “Physicians must be able to speak frankly and openly to patients.” That decisio
Article from Reason.com