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.
Dear Prof Turley,
I appreciate the detailed ‘legal’ distinction between ‘dis’ and ‘mis’ information. Makes sense, for the most part. Hard to keep up these days.
Early on I read everything by the ‘Bat Lady’ of China, Dr. Shingliz, Chief Virologist @ Wuhan Institute and did a little research on mRNA technology but, alas, it was all a bit over my head. .. so I watched the movie ‘Blade Runner’ again (esp. the recombinant DNA silique) and called it quits.
Due to increasing societal pressures (sic), I took the two-step VAX based, primarily, on President Biden’s announcement that ‘if you take these vaccines you will *not* get the virus’ (Mar. 21).
*turns out that was just another Biden ‘gaffe’ .. . and I’m just another walking-talking human bio lab for COVID mutation.
You weren’t the only one that got fooled, DG. I actually defended universal vaxxing for a while, and then the facts started rolling in 🙁
“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.”
More importantly: Truth is not determined by consensus. 50-million Frenchmen can be, and often are, wrong.
https://www.infowars.com/posts/anti-vax-activist-group-explodes-in-popularity-since-covid-vaccine-rollout/
“that is contradicted by contemporary scientific consensus”
Such a law would make a “criminal” out of the likes of Vesalius, Harvey, Lavoisier, Pasteur, Lister — all giants in the history of science and medicine, and all who contradicted the “scientific consensus” of their times.
Government compelling individuals to accept a “scientific consensus,” while criminalizing dissent, should scare the hell out of people. This is yet one more reason to flee the People’s State of California.
I could accept something along the lines of ‘peer-reviewed scientific consensus’. .. but it’s a long and arduous journey nowadays.
*aka ‘The Scientific Method’
The scientific method would not exist if everyone accepted the peer-reviewed scientific consensus.
On the contrary, the discoveries of science will never, ever, end. .. and that’s a long time.
*this invites the mind to leap forward .. . although at great risk to its present hegemony.
Peer review is not gold standard. It is a first or second order sanity check that should generate reasoned debate. Replication is the gold standard. Pull up some of Ioannidis’ papers that clearly show that large numbers of peer reviewed papers in the leading medical journals are easily falsified and should have not been published. Equally shocking is that few of these papers are subsequently withdrawn.
The Democratic party’s headlong rush to redefine, and more troubling to codify, any opinions with which they disagree illustrates just how far they will go to achieve total censorship in America. I will light a candle for the Ninth Circuit to tap the brakes on this. Thank you, Jonathan, for an excellent article.
Sky, I agree with your sentiments, but how often has the 9th Circuit saved us from anything?
Govt has the latest rounds of New Boosters available just for you! They’re all Experts! LOL;)
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This message brought to you by Pfizer. Trust The Science. Shocking video montage puts a spotlight on Pfizer’s conflict of interest hiding in front of our eyes the whole time.
https://banned.video/watch?id=63bd9d524c205b0d90d4ad6b
Anyone who has ever had to deal with government at any level knows that government rarely gets anything right.
Clowns think everything is settled and not up for debate. Clowns don’t think, they act silly for our enjoyment. Laugh and enjoy the progressive clown being stupid.
The importance of selecting judges for whom freedom of speech is paramount cannot be overstated.
The great barrington declaration begins with a false premise by saying governments intend to lock down society, and cherry-picks facts.
It creates a false dichotomy. It’s a false choice of a wholesale return to our pre-pandemic lives which is was dangerous versus a total lockdown which no one advocated.
The Barrington declaration puts individual preference way above public good. The declaration says that, “individual people, based upon their own perception of their risk of dying from COVID-19 and other personal circumstances, personally choose the risks, activities and restrictions they prefer.”
If this were applied to traffic safety, chaos would ensue as we each should chose our own speed limit and which side of the road to drive on. Public health matters, and the declaration to placed ideology over facts which helped fuel the pandemic.
The declaration also misrepresented here immunity. Herd immunity happens when a large enough part of the population has immunity, usually more than 70 per cent. Viral spread is then slowed because the virus starts encountering immune people. Herd immunity can be safely achieved by vaccines, but in order to “naturally” develop herd immunity, people must first survive the infection.
@Svelaz –
Comparing COVID mandates to traffic rules is absurd for the simple reason is that such a comparison is so inaccurate that it is, on its face, misleading. Instead, as it stands now, the only traffic rule which is analogous to a COVID rule is social distancing, which is akin to not tailgating.
But in traffic rules, there is no situation where, before you can drive on the roads, you are forced to get an injection of unproven, dangerous crap into your body for the purported benefit that it might help others drive their cars better.
Free people do not allow government technocrats to force injections into their bodies,
And if driving on the roads required such a thing, then there would be mass civil disobedience.
Where is the compelling state interest in forcing COVID vaccines?
For an infection which is not much more harmful than a flu, VAX-COVIDians want to do the following:
– Force people to be injected with harmful mRNA gene therapy
– Force people to continually get re-injected
– Banish people from public places if they do not comply
– Cause people to lose their jobs if they do not comply
– Declare those who refuse to mentally ill, deprive them of the right to refuse and inject them b force
– Seize the children of non-compliant parents and forcibly inject those kids
Such an imperious approach, based on the nebulous hype of today’s semi-ecclesiastical cult of neo-fascist “scientists”, stinks like a dystopian nightmare run by a confederacy of morons, which, if you want to live there with your pals, go right ahead.
But you won’t succeed in forcing me to join you – not if I can help it.
Rex
Rex,
Great post.
Rex,
“Comparing COVID mandates to traffic rules is absurd for the simple reason is that such a comparison is so inaccurate that it is, on its face, misleading. ”
Not it’s not, You’re applying the analogy all wrong. Traffic rules are there for safety of everyone. Speed limits and traffic lights, everyone is required to follow them, right? Stop signs, protected left turn signals etc, You are safer and get to go home when everyone follows those rules. The Barrington declaration basically said that everyone follows their own rules because they are best at determining risk. In the context of traffic rules it means You can blow thru a stop sign because YOU decide that it’s a low risk or decide to proceed thru an intersection when the light is red. Now add multiple people making those choices and you know there are going to be a lot of bad choices in determining the risk of ignoring stop signs and traffic lights. There are going to be accidents, some fatal and some resulting in injury to others. YOU don’t care about that as long as YOU come out ok because you made the choice to risk blowing thru a stop sign and nothing happened to you. BUT someone else may not be so lucky. If everyone obeyed the stop sign or traffic light everyone would have a much better chance of going home instead of a hospital or a morgue.
You mentioned social distancing. If you constantly follow too closely you leave yourself little opportunity to stop and avoid an accident if the other car suddenly slows down or stops. The car behind you has the same attitude and rear ends you totaling your car and theirs. Right? If you practice safe distance when driving you have ample time to avoid a collision and the car behind you can too if they also followed safe spacing. Follow the rules and you don’t have to risk not only yourself but everyone else is safer too. It’s no different with social distancing and wearing masks.
Your comparison is idiotic and demonstrates a lack of understanding of viruses, how they spread and in particular the speed of spread from Covid. Stick with cars, at least there you understand the value of a stop sign.
There were no mask mandates during the swine flu pandemic.
You do not have the right to drive, but you do have the right to life.
I have brought this up during covid, when the CDC Self Declared themselves final word on all things covid, and anything that veered from CDC approved propaganda was equal to mass murder.
Over years ago a couple of Dr’s in Australia attempted to tell the world that ulcers were nothing but a Bacterial infection, quickly found themselves buried in an avalache of pajoratives, quack, con artist, flim flam man, snake oil salesman, etc.
medicine is as much art, as science. The unknowns dwarf the known.
I just talked to a good friend last night. He been keeping me up to date on his uncle, who was ill, then diagnosed with Cancer and undergoing treatment, to discovering through treatment, the cancer had metastasized throughout his body. Until last week, when a full body scan could find no cancer, anywhere. Your free to be an athiest, but I will continue to thank God for miracles
Here’s the wiki on the Aussie DR’s
Barry Marshall, together with Robin Warren, discovered spiral bacteria in the stomachs of almost all patients with active chronic gastritis, or duodenal or gastric ulcers, and proposed that the bacteria were an important factor in the aetiology of these diseases. In 1985, Marshall showed by self-administration that this bacterium, now called Helicobacter pylori, causes acute gastritis and suggested that chronic colonisation directly leads to peptic ulceration. These results were a major challenge to the prevailing view that gastric disorders had a physiological basis, rather than being infectious diseases.
https://en.wikipedia.org/wiki/Barry_Marshall
When looking at medical science, the example you provide is one of the best for understanding that consensus thinking does not advance medical science. The outliers that are laughed at or disparaged are the ones who eventually provide change. Ulcers were described over 500 years ago, but the first notation of bacterial infection was in 1875, noted in the Wikipedia article and presented to this blog previously.
Penicillin came into use during WW2, but where there was a great need for the limited amount available. After WW2, production increased, and physicians attempted to use it to treat various disorders. Some physicians and researchers successfully used penicillin to treat ulcers, but the consensus ruled with laughter and disparagement. It wasn’t until the end of the 1980s or early 90s that the use of antibiotics started to become commonplace.
That means there was a 150-year gap between recognizing that bacteria could cause gastric ulcers and realizing that antibiotics cured the ulcers today.
That is what is so infuriating. With Covid, our government tried to close down discussion and force consensus thinking onto all Americans. We now know that such attempts were wrong scientifically and morally. Our government is responsible for the excess deaths due to its actions that damaged our economy and destroyed human lives.
The Socialists are not satisfied with the destruction they have already created. They wish to do more. They hope to enslave the mind and body.
If you are tempted to think that relying on scientific consensus is a good idea, I recommend reading the wonderful little book Longitude, by Dava Sobel.
It’s not simply that these heavy handed, Socialistic efforts are unconstitutional . . . they’re often fundamentally wrong!
Echoes of the 1930s Germany and Italy.
Sorry for the redundancy. There is no such thing as ” misinformation” or ” disinformation”. These are made up terms of the simple minded. Do your homework.
In this specific case, these terms are even more stupid. Especially as it relates to Covid. I keep hearing the government needs to keep its nose out of medical decisions. Those decisions are between doctor/ patient. This only holds true for reproductive rights? Yet another example of liberal hypocrisy.
Threatening doctors has no positive outcome. My experience with doctors( and there have been many) is that they give you a diagnosis then present multiple ways to solve the problem. For instance for my knee replacements, I had 3 different choices. I never once asked my doctor if he thought the government would approve of his diagnosis or possible solutions.
It is NOT the job of the government to protect us from ourselves. We have the right to our own decisions .Even if they turn out to be wrong.
Ignaz Semmelweis was the original “disinformation doctor”. https://en.wikipedia.org/wiki/Ignaz_Semmelweis
You vill do as we say or face the consequinces! And always remember, vee have ways of making you talk.
Those darn early explorers never should have questioned the scientific consensus that the earth is flat.
You mean it’s not? Since when?
Still nothing about former VP Pence having classified documents? You had a lot to say about Biden in this regard; multiple posts – but you do not care at all when a Republican does the exact same thing.
OK, Let’s see. Both of them should be jailed. Satisfied?
Excellent analysis of the AB 2098. I look forward to more of your insights on this issue. Thank you.
I read that Obama’s dog was found with classified documents. Perhaps we should look at the over classification of documents before launching the flaming arrows as was done to Trump…but when you look at the suppression of it with Biden, not done.
“VP Pence”
Yet another Leftist decoy.
This one’s particularly revolting because it’s an attempt to deflect from tyrants enslaving doctors, and usurping the rights of patients.
Was Pence’s son found to be giving classified information to Burisma? End of discussion.
Please don’t feed the troll.
Just like the days when people believed the Earth was the center of the Universe and to say otherwise made you a heretic.
A little based logic goes a long way.
Crap like these statutes and truth-by-fiat approaches can only survive as long as there is a system wide bulwark against questioning it, criticizing it, or simply analyzing it with neutral skepticism.
As such they stand on a very narrow tower of propositional reality, and the slightest nudge brings it all crashing down, as it should.
Agreed! What may be someone’s “Mis/dis information” one day is actually true and verifiable the next. Exactly who gets to determine what is mis/dis information? If in this case (COVID) is it Government Officials, it has been widely demonstrated that they were wrong at almost every junction and turn.
Particularly with science. We can look at what Galileo experienced at the hands of the Church to know how hindsight can look. Censorship is as old as the ages and has always been used as a means to achieve and maintain power. No different than with what we are seeing now with governmental bodies’ outsourcing of censorship to print, broadcast, and social media.