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 decision, the ACLU says, "plainly forecloses the State from censoring physicians' discussion, medical advice, and recommendations related to COVID-19 unless the content-based regulation can meet strict scrutiny."
Strict scrutiny would require California to show that A.B. 2098 is narrowly tailored to achieve a compelling government interest. But as the ACLU points out, existing regulations address the danger that the state perceives.
Legislators said they were worried that doctors might promote "treatments and therapies that have no proven effectiveness against the virus" and prescribe "ineffective and potentially unsafe" treatments such as ivermectin, hydroxychloroquine, and disinfectant injections. Yet Section 2234 of California's Business and Professions Code already authorizes the MBC to take action against doctors for "gross negligence," "repeated negligent acts," "incompetence," and "any act involving dishonesty or corruption."
California courts "have long interpreted the types of conduct the Legislature was concerned about—such as failing to provide patients with sufficient information to make informed health choices, committing medical fraud, and providing patients with medically inappropriate treatment—as falling under section 2234," the ACLU brief notes. "Indeed, when considering AB 2098, the Legislature acknowledged that the MBC was 'already fully capable of bringing an accusation against a physician for this type of misconduct.'"
The ACLU notes that legislators also expressed concern about "physicians' public dialogue regarding COVID-19," such as messages on social media or interviews with the press. The NCLA's complaint cites threats from supporters of A.B. 2098 who implied that the law could be used to punish doctors for promoting their own research or publicly expressing opinions about COVID-19 controversies. But public commentary is "beyond AB 2098's final scope," the ACLU brief says, because it was obvious "the State cannot regulate such speech," and the same goes for private advice to patients that falls short of "unprofessional conduct" as previously defined.
Even if some applications of the new law passed constitutional muster, the ACLU argues, its vagueness would violate the First Amendment by encouraging self-censorship. "Prophylactic, content-based rules like AB 2098 are suspect in part because their 'very existence' threatens to chill speech," the brief says, and that problem is compounded when the rules are ambiguous.
The LJC's motion for a preliminary injunction notes the difficulty that physicians will have in figuring out what A.B. 2098 requires. The law defines "misinformation" as "false information that is contradicted by contemporary scientific consensus contrary to the standard of care." As written, the LJC notes, "the definition is senseless, as it says that the covered information is contradicted by a consensus that is itself contrary to the standard of care." That puzzling language, the motion says, "suffices to make the statute void for vagueness, for it is incomprehensible."
Let's assume legislators meant that "misinformation," rather than the "scientific consensus," is "contrary to the standard of care," which is how Gov. Gavin Newsom seems to read the law. Even then, "hopeless ambiguities remain," the LJC says.
"Is information false because it is 'contradicted by contemporary scientific consensus' and (or?) 'contrary to the standard of care'?" the motion asks. "Or is falsity a separate requirement? How does a court decide 'falsity' in the context of scientific questions that are, and will always remain, matters of hypothesis and study? When is falsity determined: at the time of the statement, or given how the evidence has developed? What is a 'scientific consensus,' and how is a court to determine it? When is 'contemporary': when the statement was made, or at another point? Whose 'standard of care' matters? Does the information have to be both contradicted by consensus and contrary to the standard of care?"
Consider advice about the benefits of face masks in preventing COVID-19 transmission, a subject on which official guidance evolved during the course of the pandemic. The Centers for Disease Control and Prevention (CDC) initially dismissed the value of general masking, then embraced it as "the most important, powerful public health tool we have." More recently, it has conceded that commonly used cloth masks do little, if anything, to stop coronavirus transmission.
Imagine a doctor who was advising patients in March 2020, when the CDC was still saying that healthy people who are not caring for COVID-19 patients "do not need to wear masks." Suppose the doctor "disregarded the consensus guidance not to wear masks," the LJC says, "and advised his patients that they needed to wear N95 masks to have the best protection from COVID"—the position that the CDC eventually adopted. "Was that advice false?" the LJC asks. "When? Was it contradicted by a contemporary scientific consensus? Which consensus? When? Was it contrary to a standard of care? Was it all three? If it was all three, but is now none, does it matter? The statute answers none of these questions, all of which are crucial to understanding the law."
That is a due process problem, since the law does not give doctors fair notice of which conduct it reaches. It is also a free speech problem. "Given the ambiguities in the reach of AB 2098 highlighted by the Plaintiffs," the ACLU brief says, "physicians will be loath to speak their minds and share their opinions with patients about a rapidly evolving disease with many unknowns. At any point, the State could determine that a physician has violated AB 2098 for sharing an unconventional opinion and go after their medical license."