The Volokh Conspiracy
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Doctor Can't Be Disciplined by Washington Medical Commission for Blog Posts About COVID
The posts were "downplaying the severity of the COVID pandemic, promoting the use of ivermectin over a vaccine, and criticizing the government's response to the pandemic."
A short excerpt from the very long Wilkinson v. Wash. Med. Comm'n, decided today by Washington Court of Appeals Judge George Fearing, joined by Chief Judge Robert Lawrence-Berrey and Judge Tracy Staab; it strikes me as generally correct:
Dr. Richard Wilkinson challenges discipline imposed on him by the Washington Medical Commission … related to his treatment of seven patients with COVID-19 and related to his clinic website's blogs downplaying the severity of the COVID pandemic, promoting the use of ivermectin over a vaccine, and criticizing the government's response to the pandemic…. We affirm the patient care discipline and reverse the blog sanctions. WMC's discipline of Dr. Wilkinson for his website blogs breached his First Amendment free speech rights….
The First Amendment confirms that the government lacks power to restrict expression because of its message, its ideas, its subject matter, or its content. As a result, we presume content-based restrictions on speech invalid….. Critical to this appeal is the extension of First Amendment protection to false statements. U.S. v. Alvarez (2012). This protection is essential because some false statements are inevitable with an open and vigorous expression of views in public and private conversation, expressions the First Amendment seeks to guarantee. New York Times Co. v. Sullivan (1964)….
WMC suggests that speech by doctors must be consensus driven. It cites no authority for this position. The law, to the contrary, defeats this position. The First Amendment robustly protects a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream or even dangerous.
WMC's contention that it may monitor the scientific accuracy of physician's speech means that the State of Washington holds power to monitor speech and assess the trustworthiness of that speech. A government's power to protect truthful discourse would cast a chill on the exercise of free speech and thought. Alvarez.
According to Dr. Richard Wilkinson, WMC's finding that his statements were false supports Wilkinson's position. It shows punishment based on viewpoint discrimination. We agree. The First Amendment reserves to the people the right to assess truth. The state has no right to protect the public against false doctrine.
We deem the rule that fallacious statements receive First Amendment protection to control this appeal. Since WMC grounds its discipline of Dr. Richard Wilkinson on a claim of falsity, this sole rule could dispense of the appeal. But we also conclude that the First Amendment rule prohibiting content-based governmental action controls this appeal….
WMC next contends that, even if the state cannot preclude a member of the general public from spreading false information about COVID-19, it may punish such dissemination in the context of professional licensing. The state may control speech within the context of professional licensing if such regulation is incidental to actions it may regulate, such as treatment of an individual patient. For example, the state may enforce informed consent laws, which require disclosures by the physician, since the law relates to provision of a specific medical treatment….
We agree with WMC that a state law that regulates the practice of medicine and only incidentally burdens speech is subject to only rational basis review and must be upheld if it bears a rational relationship to a legitimate state interest…. The principles asserted by WMC fail, however, in the context of Dr. Richard Wilkinson's website blog. If discussions between a doctor and patient do not directly implicate care of that patient, the First Amendment shields the speech….
Dr. Richard Wilkinson offered no medical treatment through his public blog statements. WMC could constitutionally discipline Dr. Wilkinson for his prescribing ivermectin to COVID patients, for his failure to disclose relevant information to patients about ivermectin, and for his violation of the standard of care when directly advising a patient to shun COVID-19 vaccines. WMC could not regulate Dr. Wilkinson's speech on his website blog when he preached the same themes….
Supreme Court precedent suggests that, even assuming the state establishes a strict link between its compelling interest and measure to further that interest, the government still carries the burden of demonstrating that counterspeech would not suffice to achieve its interest. For example, WMC could have engaged in a public information campaign promoting the vaccine and condemning the use of ivermectin. WMC presented no evidence of whether it had engaged in opposite speech and the impact of this speech.
Finally, WMC asks us to fashion a new narrow exception for a physician's knowing misrepresentations of verifiable medical facts. The Commission primarily substantiates this request based on dicta in Alvarez that the Supreme Court may not protect some forms of speech historically lacking constitutional protection. The Court further declined to delineate an exhaustive list of modes of speech circumventing First Amendment shelter and left open the possibility of new exceptions beyond the stated exemptions of obscenity, fighting words, conspiracy to commit a crime, slander, and true threats….
We doubt this clodhopper court holds the status to create exceptions to the First Amendment. We decline to do so. WMC provides no authority supporting its postulation of a long tradition of regulating false speech by physicians outside of the physician-patient relationship. To the contrary, we have analyzed decisions that express concern about regulating physician speech, even if the speech advocates for treatments not generally accepted by the medical community….
Judge Fearing also added a separate concurrence, arguing that the WMC's actions also improperly punished Wilkinson's political speech:
I write this concurring opinion in part because, in today's incendiary political environment, I would prefer to promote the importance of protecting political speech, including protests, and rest our decision on the First Amendment's neutral treatment of political speech….
I recognize that a speaker's opinion can be both political and scientific in nature. Nevertheless, assuming Dr. Richard Wilkinson's blogs dipped in part into the cabin of science, its other nature, the political nature of his COVID statements, bolsters his position that WMC could not discipline him for the publication of his opinions….
Judge Fearing also had a >2500-word condemnation of President Trump, in my experience quite unusual for a judicial opinion; but I saved that for a separate post, focusing here just on the First Amendment doctrinal questions.
Thanks to Mark Leen for the pointer.
