Judge blocks California law banning doctors from spreading COVID-19 ‘misinformation’

by Jacob Fuller

Chris Lieberman, FISM News

A federal judge has put on pause a California law that would prohibit doctors from sharing COVID-19 information with their patients that the state deems “disinformation or misinformation.”

The law, known as Assembly Bill 2098, would discipline doctors for spreading “false information that is contradicted by contemporary scientific consensus” on COVID-19. Doctors who violated the law could be charged with “unprofessional conduct,” which could lead to the state revoking their medical license. California Gov. Gavin Newsom (D) signed the bill in October of last year. The law took effect on Jan. 1.

In response, a group of five physicians filed a lawsuit against Newsom and the state in November, arguing that the new rule violated their first amendment rights. A second lawsuit was filed by another doctor and two advocacy groups.

In their lawsuit, the physicians argued that “they cannot possibly know what the ‘scientific consensus’ is at any given moment, making them fearful of being honest with patients when recommending the best course of action, taking into account their patients’ individual circumstances.”

One of the plaintiffs, Dr. Tracy Hoeg, said, “I am afraid of saying something to my patients that I know is consistent with the current scientific literature but may not yet be accepted by the California Medical Board. Physicians must feel free to speak truthfully with their patients if they wish to gain and maintain their trust.”

On Wednesday, U.S. District Judge William B. Shubb issued a preliminary injunction putting the law on hold while the court considers the case. In his ruling, Shubb wrote that the law was too vague and used terms without established technical definitions.

In particular, Shubb took issue with the idea of “contemporary scientific consensus,” questioning who determines consensus, where the consensus must exist, what level of agreement defines a consensus, and how recently the consensus must be established to be considered “contemporary.”

“A ‘scientific consensus’ concerning COVID-19 is an illusory concept, given how rapidly the scientific understanding and accepted conclusions about the virus have changed,” Shubb went on to write.

The so-called ‘consensus’ has developed and shifted, often within mere months, throughout the COVID-19 pandemic … Certain conclusions once considered to be within the scientific consensus were later proved to be false. Because of this unique context, the concept of ‘scientific consensus’ as applied to COVID-19 is inherently flawed … Because the term ‘scientific consensus’ is so ill-defined, physician plaintiffs are unable to determine if their intended conduct contradicts the scientific consensus, and accordingly ‘what is prohibited by the law.’

Dr. Aaron Kheriaty, one of the five physicians in the case, celebrated the judge’s ruling, tweeting, “The ruling bodes well for our case: it indicates that our arguments that this law is unconstitutional have strong pre-trial facial plausibility. Not to get ahead of ourselves, of course, or try to predict the final outcome of the case, but this is a very positive development.”

Jenin Younes of the New Civil Liberties Alliance (NCLA), the legal counsel representing the plaintiffs, also issued a statement, saying,

NCLA is gratified Judge Shubb has recognized that AB 2098, which seeks to punish California doctors for giving patients information that departs from the so-called contemporary scientific consensus about Covid, creates an impossible standard for physicians to follow and would result in silencing physicians who disagree with state orthodoxy. The speed with which he issued his decision no doubt reflects the significance of the constitutional problems the law presents, as well as the negative consequences it would have for doctor-patient relationships.