With the recent passage of AB 2098, California took a highly controversial step in barring doctors from offering “false information” on Covid-19 and related subjects. The law is an extension of Democratic efforts to block or censor “misinformation” and “disinformation” in society from social media to medicine. However, this effort involves direct government action. As will come as little surprise to many on this blog, I opposed the measure as unconstitutionally vague and a threat to free speech. Nevertheless, Judge Fred Slaughter (C.D. Cal.) in McDonald v. Lawson held that this statute was likely constitutional and rejected a motion for a preliminary injunction. Now, however Judge William Shubb (E.D. Cal.) has reached the opposite conclusion in Hoeg v. Newsom, granting an injunction.
The law bars doctors from providing “treatment or advice” “to a patient” “related to COVID-19” when that treatment or advice includes (1) “false information” (2) “that is contradicted by contemporary scientific consensus” (3) “contrary to the standard of care.” If a doctor goes against this ill-defined “consensus,” the doctor is guilty of “unprofessional conduct” and can face disciplinary action.
The law was enacted despite the fact that many doctors who questioned aspects of Covid treatment (and were attacked for their views) have been largely vindicated. Among the suspended from social media were the doctors who co-authored the Great Barrington Declaration, which advocated for a more focused Covid response that targeted the most vulnerable population rather than widespread lockdowns and mandates. Many are now questioning the efficacy and cost of the massive lockdowns as well as the real value of masks or the rejection of natural immunities as an alternative to vaccination. Yet, these experts and others were attacked for such views just a year ago. Some found themselves censored on social media for challenging claims of Dr. Fauci and others.
As the prior “consensus” over the efficacy of masks or other Covid measures was being placed in greater doubt, California moved to make future dissenters even less likely by threatening their licenses. While the law only limits comments to patients, it sends a chilling message to physicians to toe the line on Covid statements.
Previously, Judge Slaughter found this presumptively constitutional despite the vagueness of this standard. In McDonald v. Lawson he held:
[T]he Supreme Court has permitted “restrictions upon the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” without the application of strict scrutiny…. The Ninth Circuit … [has] proceeded to recognize the “long (if heretofore unrecognized) tradition of regulation governing the practice of those who provide health care within state borders.”
…The Ninth Circuit cautioned against discounting the “long tradition of this type of regulation” in a way that “would endanger centuries-old medical malpractice laws that restrict treatment and the speech of health care providers,” emphasizing that “[w]hen a health care provider acts or speaks about treatment with the authority of a state license, that license is an ‘imprimatur of a certain level of competence.'”
…Accordingly, the court finds it fits comforably within the long tradition of California’s, and the states’, regulation of medical practice, which further supports the court’s finding it is constitutional.
Judge Shubb took a very different view of the matter in finding the language to be unconstitutionally vague. He started with the vague reference to “scientific consensus”:
The statute defines “misinformation” as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” The statute defines “disinformation” as “misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.”
“Contemporary Scientific Consensus”
[B]ased on the record before the court, it appears that the primary term at issue—”contemporary scientific consensus”—does not have an established technical meaning in the medical community. Physician plaintiffs provide declarations explaining that “scientific consensus” is a poorly defined concept. …
Defendants provide no evidence that “scientific consensus” has any established technical meaning; the expert declarations they offer are notably silent on the topic….
In Forbes, the Ninth Circuit considered a vagueness challenge to a law prohibiting medical “experimentation” or “investigation” involving fetal tissue from abortions unless necessary to perform a “routine” pathological examination. The court relied on testimony from the plaintiffs (who were physicians) and expert witnesses to evaluate the challenged terms, which were not defined by the statute. The experts “highlight[ed] doctors’ lack of consensus about what procedures are purely experimental” and pointed out difficulties arising from the changing nature of scientific understanding, by which some “experiments” will eventually become recognized as “treatment.” The terms “investigation” and “routine” were problematic because multiple common definitions could apply in the medical community, which “[lacked] any official standards to help” define the terms. The Ninth Circuit reasoned that because the contested terms lacked sufficiently clear, commonly understood definitions in the medical community, and the statute failed to provide narrowing definitions, the statute was unconstitutionally vague. The lack of definitional clarity failed both to give doctors fair notice of what conduct was prohibited, and to give courts and law enforcement sufficient standards by which to narrow the terms’ meanings.
…The statute provides no clarity on the term’s meaning, leaving open multiple important questions. For instance, who determines whether a consensus exists to begin with? If a consensus does exist, among whom must the consensus exist (for example practicing physicians, or professional organizations, or medical researchers, or public health officials, or perhaps a combination)? In which geographic area must the consensus exist (California, or the United States, or the world)? What level of agreement constitutes a consensus (perhaps a plurality, or a majority, or a supermajority)? How recently in time must the consensus have been established to be considered “contemporary”? And what source or sources should physicians consult to determine what the consensus is at any given time (perhaps peer-reviewed scientific articles, or clinical guidelines from professional organizations, or public health recommendations)? The statute provides no means of understanding to what “scientific consensus” refers.
Judicial references to the concept of scientific consensus—in the context of COVID-19 as well as other disputed scientific topics—confirm that the term lacks an established meaning…. 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.” As discussed in greater detail in Section III of this Order, plaintiffs represent that they have provided and would like to continue providing certain COVID-19-related advice and treatment that contradict the positions of public health agencies like the CDC. If the “consensus” is determined by United States public health recommendations, physician plaintiffs’ intended conduct would contradict that consensus; if the same term is defined by other metrics, their conduct may be permissible. The language of the statute provides no way to determine which of multiple interpretations is appropriate.
Rather than merely providing the statute with “flexibility and reasonable breadth,” the term “scientific consensus” makes it impossible to understand “what the ordinance as a whole prohibits.”
The court goes on to address the rather glaring problem that the consensus may have been wrong on Covid:
…Physician plaintiffs explain how, throughout the course of the COVID-19 pandemic, scientific understanding of the virus has rapidly and repeatedly changed. Physician plaintiffs further explain that because of the novel nature of the virus and ongoing disagreement among the scientific community, no true “consensus” has or can exist at this stage. Expert declarant Dr. Verma similarly explains that a “scientific consensus” concerning COVID-19 is an illusory concept, given how rapidly the scientific understanding and accepted conclusions about the virus have changed. Dr. Verma explains in detail how the so-called “consensus” has developed and shifted, often within mere months, throughout the COVID-19 pandemic. He also explains how 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….
The court then eviscerates the reference to being “contrary to the standard of care” and concludes that
… far from clarifying the statutory prohibition, the inclusion of the term “standard of care” only serves to further confuse the reader. Under the language of AB 2089, to qualify as “misinformation,” the information must be “contradicted by contemporary scientific consensus contrary to the standard of care.” Put simply, this provision is grammatically incoherent. While “statutes need not be written with ‘mathematical’ precision, they must be intelligible.” It is impossible to parse the sentence and understand the relationship between the two clauses—”contradicted by contemporary scientific consensus” and “contrary to the standard of care.”
One possible reading, as defendants argue, is that the two elements are entirely separate requirements that each modify the word “information.” However, this interpretation is hard to justify. If the Legislature meant to create two separate requirements, surely it would have indicated as such—for example, by separating the two clauses with the word “and,” or at least with a comma. Further, the concept of “standard of care” pertains to the nature and quality of treatment that doctors provide or fail to provide. It is thus difficult to accept defendants’ contention that the term “standard of care” modifies the word “information.” By its very nature, the standard of care applies to care, not information.
The court also rejected the claim that the inclusion of “false information” helps clarify the matter:
While this reasoning may appear sound at first, drawing a line between what is true and what is settled by scientific consensus is difficult, if not impossible. The term “scientific consensus” implies that the object of consensus is provable or true in some manner. This is evident in the examples of “consensus” given by defendants—that apples contain sugar, that measles is caused by a virus, and that Down’s syndrome is caused by a chromosomal abnormality. These propositions are so universally agreed upon that they are considered factual. It is hard to imagine a scenario in which the Boards consider a proposition to be settled by the scientific consensus, yet not also “true.”
Moreover, as discussed above, because COVID-19 is such a new and evolving area of scientific study, it may be hard to determine which scientific conclusions are “false” at a given point in time. The term “false information” thus fails to cure the provision’s vagueness….
The court then grants the injunction.
Both opinions are well written and now present an excellent foundation for a ruling by the United States Court of Appeals for the Ninth Circuit and possibly the Supreme Court. I obviously favor Judge Shubb’s opinion, but this is likely to cause the same divisions on appeal where “consensus” may be equally difficult to establish.