First Amendment

California Tries To Make It Illegal for Doctors To Spread COVID-19 'Misinformation'

If AB 2098 is signed by Gov. Gavin Newsom, it should face a First Amendment challenge.


The state of California is attempting to outlaw doctors from communicating what authorities deem COVID-19 "misinformation" to their patients.

AB 2098,* which passed the California legislature earlier this week, designates the dissemination of "misinformation or disinformation" relating to COVID-19 as "unprofessional conduct" for doctors. The text of the bill explains that its aim is to prevent doctors from giving patients information that contradicts the "contemporary scientific consensus."

If California Gov. Gavin Newsom, a Democrat, signs the bill, doctors who violate its tenets could lose their licenses. It is unclear whether the governor currently supports the bill.

"Misinformation" is a highly dubious and debatable category. The scientific consensus has often expressed views relating to COVID-19 that were later contradicted. Official guidance with respect to masks has changed frequently. During the early days of the pandemic, White House coronavirus adviser Anthony Fauci initially downplayed the need for masks. Then, for more than a year, the scientific community urged people to wear any mask at all. Today, it is widely believed that only high-quality masks are offering meaningful protection. At various stages of the masking discourse, what many scientific experts had to say on the subject turned out to be inaccurate or at least incomplete.

The same is true of the COVID-19 vaccines. While they remain remarkable tools for preventing severe disease and death, particularly among older and more vulnerable populations, they do not substantially reduce COVID-19 case counts, contrary to what was said about them in late 2020 and early 2021.

Science is a deliberative process, and medical professionals need to be allowed to dissent from mainstream orthodoxies and challenge dominant perspectives. Patients deserve expert care, but it's unreasonable for the government to compel ideological conformity in this field.

Besides, the state has shown no particular aptitude for discerning what constitutes genuine misinformation. On the contrary, government actors have frequently instructed social media companies to be wary of perfectly legitimate points of view. This happened with the lab leak theory, which was brutally suppressed on social media at the behest of the government, and it happened with the New York Post's Hunter Biden laptop story, which was wrongly branded Russian disinformation by top law enforcement agents, and punished accordingly.

It's also likely that this bill violates the First Amendment. Governments have the power to regulate medical care, but the compelled speech component of AB 2098 would probably perturb the Supreme Court. Even some legal experts who support the bill's goals concede that it will have a hard time surviving scrutiny.

"Initiatives like this will be challenged in court and will be hard to sustain," Michelle Mello, a professor of law and health policy at Stanford University, told The New York Times. "That doesn't mean it's not a good idea."

Policing misinformation is a fraught task, and the state inserting itself between doctors and their patients is usually a recipe for disaster. Newsom should let this bill die.

*CORRECTION: The number of the bill has been corrected.