A federal judge halted California’s attempt to censor doctors when, last Wednesday, the court enjoined the state statute that banned medical professionals from spreading purported “misinformation” or “disinformation” to their patients about Covid-19. The decision represents the latest victory against the authoritarian edicts that quickly followed the outbreak of the pandemic three years ago but continue to this day.
In August of 2022, California Gov. Gavin Newsom signed into law Assembly Bill 2098 (AB 2098), adding a new provision to California’s extensive regulations governing the professional and ethical conduct of physicians — regulations that ban practices ranging from human cloning to performing a pelvic exam on an unconscious or anesthetized female patient without her knowledge or consent.
The new statute sought to stop what the legislature called a “pernicious” threat to public health — doctors who spread “misinformation” or “disinformation” to their patients about Covid-19. Specifically, AB 2098 provides:
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.
The California law defines “disinformation” as “misinformation the [physician] deliberately disseminated with malicious intent or an intent to mislead,” while “misinformation” is “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”
In passing the law, the California legislature made multiple “findings,” including facts purveyed by the Centers for Disease Control and Prevention (CDC) that there is a much higher risk of death for unvaccinated individuals from Covid-19 than the vaccinated. The legislature also found that “the spread of misinformation and disinformation about COVID-19 vaccines has weakened public confidence and placed lives at serious risk” and that “major news outlets have reported that some of the most dangerous propagators of inaccurate information regarding the COVID-19 vaccines are licensed health care professionals.”
Soon after Newsom signed AB 2098, a group of doctors and organizations representing doctors filed suit in federal court in California. The plaintiffs in Høeg, et al. v. Newsom, et al. argued the statute violated their First Amendment rights to free speech and their constitutional right to due process. The plaintiffs in Høeg then filed a motion for a preliminary injunction, seeking to prevent the state from enforcing AB 2098 until the resolution of the doctors’ constitutional challenges.
On Wednesday, presiding Judge William Shubb, a George H.W. Bush appointee, granted the motion and entered an injunction barring California from enforcing the law.
In his ruling, Shubb first held that the plaintiffs had “standing” or the right to sue because, if allowed to go into effect, the doctors faced an actual injury in the form of disciplinary action. The court then held that the plaintiffs were likely to succeed on the merits of their due process claim — “likelihood of success on the merits” is the controlling standard at the preliminary injunction stage — because the terms “misinformation” and “contemporary scientific consensus” were unconstitutionally vague, making it impossible for a reasonable person to know what the law prohibited.
The court further stressed that the phrase “contemporary scientific consensus” lacks an understandable meaning because it has no technical meaning within the medical community and was left undefined in AB 2098. Covid-19 is a “quickly evolving area of science that in many aspects eludes consensus,” the court noted, reasoning that while the phrase “contrary to the standard of care” is a clearly defined term in law, by adding the undefined language, “false information that is contradicted by contemporary scientific consensus,” the California legislature made the statute “grammatically incoherent.”
Because the court concluded the plaintiffs were likely to prevail on their due process claim given the vagueness of AB 2098, Shubb held he did not need to reach the plaintiffs’ argument that the California law violated the First Amendment by preventing medical professionals from openly discussing issues with Covid-19 shots, alternative treatments and therapies for Covid-19, or the merits of universal masking with their patients. Shubb, however, added that AB 2098 “clearly implicates First Amendment concerns.”
Following Wednesday’s decision in Høeg, the corporate press quickly coalesced around the vaccine-denier narrative by highlighting that one of the plaintiffs in the case was the Children’s Health Defense, an “advocacy organization” connected to Robert F. Kennedy Jr. Then, rather than focus on the significance of the court’s decision and California’s blatant violation of doctors’ constitutional rights, the left-leaning media intoned that the Children’s Health Defense has “long promoted false information about standard childhood vaccines.”
This tact tracks the media’s approach to AB 2098 following its enactment, when the legacy press reported favorably on the new law, claiming the California legislature was “trying to strike a balance between free speech and public health” while highlighting laws passed in other countries that criminalized the “spread of vaccine misinformation.”
The reporting at the time also quoted supposed experts who, while admitting the law likely would not survive First Amendment scrutiny, nonetheless opined that it “doesn’t mean it isn’t a good idea.” “People have died because they made choices based on false information spread by people in a position to know better,” one so-called expert said.
The court’s decision enjoining California’s AB 2098 represents a solid victory in the fight against the authoritarianism pushed under the auspices of protecting the public from Covid-19, but the sentiments voiced by the legislature and experts — that they know better — should nonetheless trouble Americans.