Doctors File Lawsuit Against California’s COVID-19 ‘Misinformation' Law

Micky Wootten | October 10, 2022 | 1:02pm EDT
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(Getty Images)
(Getty Images)

(CNS News) – The Liberty Justice Center is filing a lawsuit against the California Medical Board and the California Attorney General on behalf of two practicing doctors, alleging that the state’s COVID-19 Misinformation Bill violates the First and Fourteenth Amendment.

The bill, AB 2098, passed the State Assembly in May and the State Senate on August 29. California Gov. Gavin Newsom (D) signed the legislation into law on Sept. 30.  

AB 2098 grants the Medical Board of California the ability to revoke the license of any practicing physician within the state who is determined to be spreading “misinformation or disinformation related to the SARS-CoV-2 coronavirus.”

As the bill states, “Existing law provides for the licensure and regulation of physicians and surgeons by the Medical Board of California and the Osteopathic Medical Board of California.” Current California law “requires the applicable board to take action against any licensed physician and surgeon who is charged with unprofessional conduct, as provided.”

Therefore, AB 2098 adds the following section to the Business and Professions Code that is already enforced by the California Medical Board:

“It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including 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.”

California Gov. Gavin Newsom (D).   (Getty Images)
California Gov. Gavin Newsom (D). (Getty Images)

The bill defines “misinformation” as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care,” and “disinformation” as “misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.”

On Oct. 3, the Liberty Justice Center filed a lawsuit, McDonald v. Lawson, in the U.S. Court for the Central District of California on behalf of two doctors. Mark McDonald is one of the doctors suing and Kristina Lawson is the president of the California Medical Board.  

The Liberty Justice Center describes itself as “a nonprofit, public-interest litigation center that fights to protect Americans’ fundamental constitutional rights.”

The other plaintiff in the case is Dr. Jeff Barke, a primary care physician. 

As the lawsuit makes clear, neither McDonald nor Barke has been “disciplined by any medical regulatory authority, had his medical license suspended, or had a complaint against him sustained for unprofessional conduct.” 

According to the Liberty Justice Center, both defendants “have fought to reopen schools, provide early treatments for COVID-19 […] now, they are fighting for their right […] to provide the best care possible to their patients.”

(Getty Images)
(Getty Images)

The lawsuit claims the California law intrudes into the private relationship between a doctor and patient. It says the law’s “codification of an official ‘scientific consensus’ is at odds with the progress of science itself.” Additionally, the lawsuit alleges that the bill is at odds “with the responsible practice of medicine,” which does not include doctors “following official guidance to the letter in all cases.” 

The lawsuit also alleges that “the goal of AB 2098 is to chill speech,” especially “the speech of those who dissent from the official view.”

Governor Newsom said in a statement that he too is “concerned about the chilling effect other potential laws may have on physicians and surgeons,” but assures that he is “confident that discussing emerging ideas or treatments […] does not constitute misinformation or disinformation under this bill’s criteria.”

The lawsuit charges that Newsom, who “is not the enforcement authority responsible for determining how AB 2098 should be applied,” is simply engaging in “wishful thinking” with his statement. The lawsuit places doubt in Newsom’s assurance that AB 2098 won’t chill free speech because “an unconstitutional speech restriction cannot be saved by the announcement that it will be enforced in a narrow manner.” 

The filers take issue with the bill’s definition of “misinformation,” as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care,” because it offers “no limitation on the clarity of the deviation or how well established the standard of care need be.” 

(Getty Images)
(Getty Images)

The case “raises claims arising under the First and Fourteenth Amendments.”  

The lawsuit argues that AB 2098’s imposition of a “government mandate to espouse only those ideas that the State of California deems acceptable,” will burden “disfavored speech by disfavored speakers.” As a result, “speakers who parrot the contemporary ‘consensus’ may continue speaking; only those who may dissent are silenced.” The case “raises claims arising under the First and Fourteenth Amendments,” the lawsuit reads. “The fact that some doctors’ views are at odds with the official views of government health authorities does not undermine the right of doctors to express them.” 

The second count claims that AB 2098 “is unconstitutionally void for vagueness under the Fourteenth Amendment.” The lawsuit’s reasoning for this count is that “AB 2098 does not define its terms with any specificity and therefore does not give regulated physicians like Plaintiffs adequate notice of what will run afoul of the law.”

Additionally, AB 2098’s definition of “misinformation” is “ambiguous even on the most basic level of grammar, as literally it applies to information that is contradicted by a consensus that is itself contrary to the standard of care.” Aside from these linguistic issues, “the statute leaves to the caprice of the Board what it will or will not decide is misinformation.” 

The plaintiffs in the case “respectfully requests that this Court” do the following:

Declare AB 2098 unconstitutional on the basis that it engages in “viewpoint discrimination;”

Declare AB 2098 to be “unconstitutionally vague;”

“Enjoin Defendants” from enforcing the statute against other physicians;

“Award Plaintiffs” their legal costs for pursuing this lawsuit;

Grant Plaintiffs “any further relief to which they may be entitled and such other relief as this court may deem just and proper.”

In addition to the lawsuit filed, the Plaintiffs also filed a preliminary injunction the same day “to protect their free speech rights as the case unfolds.” 

Attorney Daniel Suhr.  (Screenshot)
Attorney Daniel Suhr. (Screenshot)

On Oct. 7, CNS News spoke by telephone with LJC Managing Attorney Daniel Suhr.

When asked what the reality would be for doctors in the State of California if AB 2098 remains the law of the land, Suhr expressed that the bill would not only harm doctors but also patients.

“This case is important for doctors because it’s going to limit their speech rights, but really I think the important change on the ground is for patients,” said Suhr.

As he explained, AB 2098 “prevents doctors from giving their best medical advice […] and from pursuing the best science,” adding that the bill “shuts down the scientific and medical inquiry that is so essential to developing the best science and the best policy.”

CNS asked Suhr if there would ever be a case where he feels that a central arbiter of truth would be necessary.

“There’s a legitimate and important role that government plays in keeping us safe,” Suhr explained. “What makes this law so problematic, is it doesn’t go after particular treatments or particular pharmaceutical products or medical devices, it goes after speech.”

While this bill is being challenged by doctors and free speech advocates, CNS asked Mr. Suhr what he thought the motivations behind the bill’s advocates might be. Suhr replied that he did not “want to put words into their mouth,” but placed AB 2098 in the context of what he sees as a “broader effort on the left to use this misinformation concept to really reshape and limit public discourse.”

Much of the bill depends on establishing an authority that enforces their concept of “consensus,” he said.

CNS asked Mr. Suhr to speak on the role that the media or other institutions could have played in creating this culture.

“Well, what the heck is a scientific consensus, right?” Mr. Suhr asked rhetorically. “One of the things that’s just true of science is that it’s constantly changing and evolving.” As a result, “the scientific consensus” becomes “what elite institutions within the field or the media or these other power players in our society to get the government to use and then to force on others.”

“It’s really only when we have room for doctors and scientists to dissent and challenge these concepts and make their voices heard, then we’re able to end up discovering and hopefully achieving the best policy outcomes,” Suhr added.

 “Fundamentally, for starters, the American people aren’t stupid,” said Suhr. “We need patients who are informed and they deserve to be able to give informed consent, but they go to their doctor looking for their doctor’s best medical judgement.”

Suhr believes that AB 2098 would prevent doctors from giving their best advice. “When the state comes in and interferes with that doctor-patient relationship,” he said, “it’s really not only infringing on the doctor’s rights, it’s also infringing on the patient’s rights.”

When asked about the two doctors challenging the California law, Suhr said, “in this moment in our country, it is so important to have patriotic Americans who are willing to step up and protect our constitutional rights.”

He praised the two doctors as “courageous” for exposing themselves to public and professional scrutiny by having their names on this lawsuit. “But if people don’t step up, if we don’t see doctors and patients demand their constitutional rights, then the government wins every time,” explained Suhr.

“It’s only when people are willing to step up and push back, that we’re able to maintain those first principles of our Constitution and those rights and liberties that are so important to us as Americans,” Suhr added.  

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