Constitutional Law, Courts, Free Speech

Court Enjoins California’s Bar on Doctors Giving “False Information” on Covid

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.

170 thoughts on “Court Enjoins California’s Bar on Doctors Giving “False Information” on Covid”

  1. Surreal!

    https://www.youtube.com/watch?v=ywlpArNWKxM

    “Here are some of the highlights from today’s video:

    Jordon Trishton Walker, Pfizer Director of Research and Development, Strategic Operations – mRNA Scientific Planner: “One of the things we’re exploring is like, why don’t we just mutate it [COVID] ourselves so we could create — preemptively develop new vaccines, right? So, we have to do that. If we’re gonna do that though, there’s a risk of like, as you could imagine — no one wants to be having a pharma company mutating f**king viruses.”
    Walker: “Don’t tell anyone. Promise you won’t tell anyone. The way it [the experiment] would work is that we put the virus in monkeys, and we successively cause them to keep infecting each other, and we collect serial samples from them.”
    Walker: “You have to be very controlled to make sure that this virus [COVID] that you mutate doesn’t create something that just goes everywhere. Which, I suspect, is the way that the virus started in Wuhan, to be honest. It makes no sense that this virus popped out of nowhere. It’s bullsh*t.”
    Walker: “From what I’ve heard is they [Pfizer scientists] are optimizing it [COVID mutation process], but they’re going slow because everyone is very cautious — obviously they don’t want to accelerate it too much. I think they are also just trying to do it as an exploratory thing because you obviously don’t want to advertise that you are figuring out future mutations.”

  2. We need more discussion like this thoughtful piece by Drs. Vinay Prasad and John Mandrola, which was posted on Bari Weis’ site today. Which, by the way, is exactly the type of speech that the California law seeks to censor:

    The Epidemic of #DiedSuddenly
    -Why is the public turning to a single, ominous explanation for tragedies like Damar Hamlin’s collapse? Two doctors explain.

    https://www.thefp.com/p/the-epidemic-of-diedsuddenly

  3. It’s important to understand what they mean by “misinformation” and “disinformation” – they’re not talking about statements that are untrue, i.e., statements that deviate from the truth. They’re talking about statements that deviate from the narrative they want to force you to accept.

    1. Some Diversity hires seem to be better then others. He seems to need a little more work on other career enhancing moves.

      I see there’s a video in the wild today of the US Military’s largest battle Tank, Stacy Abrams, being loaded up to be moved to Ukraine. Maybe this guy can get a new job driving her up against those pesky Ruskies. LOL;)

        1. I tried to explain that type of humor to my wife. She said something like I was an insensitive Manpig. LOL;)

    2. “This is awesome!”

      No, it’s revolting. That is a disgusting, manipulative hit piece. (And I’m generally a fan of PV.) They destroyed a man’s career. And for what? A sound bite that PV thinks indicts Big Pharma.

      1. Sam, I think you need to review the video and consider the actions of the pharmaceutical company. If his comments are accurate, Pfizer stepped over the line and may have broken the law. If he lied, he shouldn’t be working in that position for Pfizer. I think what he said is reasonably accurate and demonstrates Pfizer is a danger to society.

    1. In my state lawyers have stolen from clients and not faced sanctions from the bar.

      It is near impossible for the Bar to sanction lawyers for actual misconduct.

      Yet we are seeing multiple woke bar groups weilding what is unfortunately state executive power politically.

      This is evil and it must end.

      I would guess this will reach the supreme court which has already severly limited the power of non-government bodies to weild executive power.

        1. More proof the bar is politically corrupt.

          Klinesmith fabricated evidence that was presented to a court.
          He should not practice law ever again.

    2. Anonymous – Thank for bringing to this attention. We all need to be concerned with political prosecutions.
      Obviously, this is an attempt to intimidate attorneys from representing Trump and other objects of the Left’s wrath. For example, it states: “In the months following the election, however, the Trump campaign received information from numerous credible sources, including Attorney General of the United States William Barr and members of Trump’s inner circle of advisors, that there was no evidence of widespread election fraud or illegality that could have affected the outcome of the election.” There were certainly more signs of “illegality” in this electioin than in the 2014 election where Democrats challenged the recognition of electors. Further, in Wisconsin, the Supreme Court later overturned changes in the state law that helped Biden win that narrowly-decided state.
      Molly Hemingway has written a book entitled “Rigged” about arguably-illegal election law changes, and other procedural abuses, that helped Biden.
      Those issues pale in comparison to the suppression of information harmful to Biden, orchestrated by Democrats and the Deep State,
      More to the point, legal ethics boards should not be in the business of attempting to control political speech of any kind. A challenge to an election, using legal processess, is a protected by the Constitution. Apropos to this topic, Alan Dershowitz recently wrote [https://www.foxnews.com/opinion/alan-dershowitz-mccarthyism-harvard-winthrop-house-sullivan-weinstein] (May 2019):
      “When I was a college student, lawyers who represented Communists would be fired from academic positions. In parts of the South, lawyers who represented civil rights activists were fired. In some areas of the country lawyers who represented men accused of sodomy or women seeking abortions would be fired. Now Harvard College joins this Hall of Shame by firing Professor Ron Sullivan and his wife, Stephanie Robinson from their positions as Co-Deans of Winthrop House because Sullivan decided to represent a man accused of rape. The defendant is the highly controversial Harvey Weinstein, who is presumed innocent and has not yet been tried. Many troubling arguments have been offered in defense of the decision not to renew Sullivan’s role as Dean of Winthrop house. The most common – and dangerous – is that students feel “unsafe” around a lawyer who is representing Weinstein. Feeling ‘unsafe’ is the new mantra for the new McCarthyism.”
      Maybe the politicial fanatics who now run the CA Bar feel frightened by having Eastman in their midst.

      1. One of the things that has come to light more recently is that the DOJ did absolutely ZERO inquiry into any allegations of election impropriety in 2020. AG Barr specifically directed US Attorney’s to refer everything election related to states.

        More recently testimony to the AZ Senate indicates that over 400,000 mailin ballots in the 2020 election failed to meet even the most minimal signature verification.

        A very large number had no signature at all and were counted.
        Another very large group has nearly identical “SS” signatures that did not match.
        The remainder were just not even close – often not even the same name.

        There were also issues because very large numbers of voter registration records had no signatures or completely unacceptable signatures.
        It was very very common for the Voter Registration signature to be too small to be readable at all – much less verifable against an enveolope.

        The same problems existed in 2022 – except that the total numbers were smaller – because the total number of mailin ballots was smaller.

        There are several other 2022 Developments from Maricopa County – confirmation that the number of ballots without chain of custody is in the 200K+ range, Data from the tabulators themselves that almost 1/4M ballots were rejected by tabulators on election day – noth the 1700 that Maricopa County claimed at the prior hearing.

  6. Many doctors are hard to trust, due to their incompetence, even when they are trying to be truthful. Add in their COVID lies, and the average patient doesn’t have a chance.

  7. So I guess doctors in the middle ages who didn’t want to bleed patients and suspected that disease was carried by rats and lice and recommended improved sewage systems and clean drinking water would have been prosecuted had this
    or a similar law been in effect back then. You just can’t fix stupid.

    1. Nah. Twas miasma what done in our sisster. We warned her about going outside after dark.

      I don’t suppose these pious stewards of medical science considered for a second that “consensus” can change and even reverse itself. Imagine their surprise when the mounting statistics of vaccine deaths and permanent injuries eventually changes opinions about their efficacy and safety, and they get hauled into court for “spreading misinformation and disinformation”.

  8. Jonathan: The two conflicting cases will present an interesting Q. for the 9th Circuit. Whether the 1st Amendment protects a physician who gives medical misinformation to a patient. I know something on the subject.

    At the height of the Covid pandemic I had an occasion to seek a second opinion from a new doctor on an unrelated medical condition. A neighbor gave me the name of her doctor. “He’s wonderful!, she said. So I made an appointment to see this “wonderful” doctor. I wore a face mask while waiting for the doctor. When he came in he was not wearing a mask. This prompted a Q from me: “Why aren’t you wearing a mask? All my other doctors wear mask when examining me?” The doctor became agitated and said, to paraphrase: ” The danger of Covid is way over-hyped by the government. We all have natural immunities against infection. I don’t wear a mask because I don’t think it does any good and I will never get vaccinated”. The doctor then cited a couple of anecdotal cases in Europe where individuals were infected but recovered because of their “natural immunities”. I countered by citing all the things I was hearing from Dr. Fauci. The doctor responded by claiming Dr. Fauci was just a “propogandist” for the “pharmaceutical industry”. I was a little dismayed by what the doctor was telling me. So I decided to get all my vaccine shots. That proved to be a life saver when I recently tested “positive” for Covid. I was sick with flu-like symptoms for about 10 days. After a home test showed I was “negative” I went in to see my regular PCP. I told him the story about the other doctor. My PCP responded: ” It was good you got all your shots. Probably saved you from a serious infection and hospitalization–and at your advanced age, possible death”.

    I relate this story because some physicians and other groups are still trying to downplay the dangers with misinformation about Covid. You have cited before the “Great Barrington Declaration” (GBD)–the product of the American Institute for Economic Research–not a scientific research group but a right-wing think tank. The GBD supports the false theory that “natural immunities” will provide “herd immunity” against Covid. The GBD simply reinforces right-wing conspiracies about Covid. The fact is that only about 10% have Covid antibodies. 94% remain susceptible to infection and hospitalization. The Infectious Diseases Society of America, composed of 12,000 infectious disease scientists, physicians and public health experts, have strongly denounced the GBD. Donald Trump supported the GBD. Dr. Fauci denounced the GBD as misinformation. The doctor’s (like the one who gave me a second opinion on Covid) who question Covid pandemic restrictions or treatment have not been, as you say, “largely vindicated”.

    I recall you saying you have been fully vaccinated. That means you followed the science and your doctor’s recommendations. So why would you want to join those that keep peddling misinformation about Covid? It seems to me doctors and serious legal scholars have a responsibility not to put themselves in the service of those who try to sow mistrust in effective public health measures. I suppose it gets down to a choice. You can follow Donald Trump and all the other conspiracy theorists about Covid or you can follow Dr. Fauci. I followed Dr. Fauci’s advice and I am hear to tell the story. When the 9th Circuit rules on the Hoeg v Newsom case I hope they side with protecting public health.

    1. Dennis: you rhetorically ask why Turley would “want to join those that keep peddling misinformation about COVID”, even though he, himself, got vaccinated? The Fox paycheck, of course! What Turley is doing is just wrong, and, as you point out, he is a hypocrite.

      As a matter of fact, much of the current dissention and strife in our country is directly traceable to Trump: all of the bickering in the House, the phony “weaponization of the federal government” sub-committee that uses this fake title to pretend there actually WAS weaponization of the federal government because J6 Committee went after the pig who fomented an insurrection, all of the infighting and threats to kick people off of committees as revenge because they tried to hold Trump accountable for his conduct–just some examples of the damage he’s done to our country and our government–and due to what? His fabulous success pretending to be President? He brought us to the brink of an all-out depression with his incompetence. The country had to shut down for about 2 years due to his incompetence in handling COVID, and his lies about the seriousness of COVID caused an estimated 130,000 unnecessary deaths. He alienated our EU and NATO allies, praised Putin as a “genius” for invading Ukraine, and started a trade war with China. How about his fabulous support by the American people? Nope–not that either. He set a record for low approval ratings and lost the popular vote twice. The first time, he found a way to cheat his way into office. He tried it the second time, but it didn’t work. Does he stop lying that he really, really did win, and by a landslide? Nope. We continue as a nation to suffer from the arrogance of a malignant narcissist who panders to White Supremacists, stokes conspiracy theories, lies, doesn’t pay taxes, burdens our courts with liltigation over his arrogance, crimes and lies, stole classified documents then lied about returning them, and who just refuses to shut up, go away and let America heal. Turley plays a role in all of this dissention by lending his credentials to support the Fox News narratives.

    2. You need to inform yourself. The research coming out in the last 18-24 mo’s says the jab doesn’t protect you much at all, doesn’t stop transmission, has risks that have never been tolerated in the past. So you made a choice. that doesn’t mean the rest of us should be shackled by your foolishness. or you PCP’s. I follow the data closely, worldwide. as of today your first doc was in the right.

      1. James Johnson: YOU are the one who needs to inform yourself. The CDC never said that transmission would be prevented by immunization–they always said that if you got immunized, you were far less likely to get hospitalized or die from COVID. That was, and still is, true. Maybe you don’t think that avoiding illness serious enough to land you in the hospital, and/or avoiding being placed on a ventilator isn’t much of a benefit, but you are wrong. Just ask anyone who survived COVID who got hospitalized and/or put on a ventilator.

        1. “The CDC never said that transmission would be prevented by immunization…” warbles Gigik, freesh communion at the Kung Flu chruch.

          Really?

          From the RACHEL MADDOW show 29 March 21. transcript here:

          https://www.msnbc.Com/transcripts/transcript-rachel-maddow-show-3-29-21-n1262442

          The relevant portion:

          And we have — we can kind of almost see the end. We`re vaccinating so very fast, our data from the CDC today suggests, you know, that vaccinated people do not carry the virus, don`t get sick, and that it`s not just in the clinical trials but it`s also in real world data.”

          The weasel word ‘suggests won’t save your argument. Besides it’s from MADDOW, so the science is settled.

          Elapsed time to find said quote: 4 minutes, 3 of which were spent finding the quote from a source that would prevent from bawling “fake news!

          That’s the last we’ll hear form yo on this topic.

        2. Aparantly you think we were all born yesterday.

          From April 2021 – CDC recomends the vaccine to healthcare works to prevent transmission.

          https://www.cdc.gov/mmwr/volumes/70/wr/mm7013e3.htm
          USA today does nto specifically reference CDC but unequvocally “fact checks” the claim that the vaccine does NOT prevent Transmission as false using many sources.

          https://www.usatoday.com/story/news/factcheck/2021/11/17/fact-check-covid-19-vaccines-protect-against-infection-transmission/6403678001/

      2. James Johnson: You need to read Gigi’s comment to you. But I like to follow the science. So please provide the scientific studies and research for your claim that the “jab doesn’t protect you much at all” and has “risks”. And, no the “wonderful” doctor was not right. Had I listened to him I would never have gotten vaccinated and I probably would not be alive today!

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          Alex Jones breaks down the COVID truth behind the sudden increase in mass death.

          See the emergency report exposing the SPARS Pandemic plans here: https://banned.video/watch?id=6068e6f54749bf7c6f0fcb7b

        4. “Had I listened to him I would never have gotten vaccinated and I probably would not be alive today!”

          Dennis, it seems you lack proficiency in statistics and numbers. The death rate from Covid in America is about .3%. Most of them are sick and elderly. No wonder so many of your answers are so bizarre.

          1. It is also likely that 0.3% is a significant over estimate as we know many many people do not report. We know that a very high percent of people are either asympotmatic or only very mildly symptomatic.

            We also know statistically that not only are most of the deaths in the sick and old – but that most are in people within 6months of dying, that most are with people who have not one but 2 or more “comorbidities”

            The most dangerous aspect of Covid is not a high mortality rate. It is a very high transmission rate. Which is why nearly everyone has or will get it.

            That is also why it was NEVER within the power of public health officials to do ANYTHING about it. The initial Wuhan Covid Variant had a transmission rate of 2.8-3.5 – we can not stop or eradicate the flu which has a transmission rate of 1.4. The latest XBB 1.5 Cvid strain has a transmission rate of 30 – that is almost 3 times as contageous as the measles. The only good news is that for nearly all who get infected it is just a head cold, never getting into the chest. Current estimates are that 80% of the country will get infected by XBB 1.5 in the next month. Regardless of whether you are vaccinated, or previously infected.

            1. “The latest XBB 1.5 Cvid strain has a transmission rate of 30 – that is almost 3 times as contageous as the measles. The only good news is that for nearly all who get infected it is just a head cold, never getting into the chest.”

              John, accepting your numbers, and the recent strain is minor. That might partly be due to a partial immunity that almost all have since most people were affected with Covid or immune before Covid appeared.

              1. “John, accepting your numbers, and the recent strain is minor.”
                Most sources are saying that XBB 1.5 will be mild, not minor.
                Most predictions I am seeing are nearly everyone will get it in a short period.
                That is is highly immune evasive – i.e. neitehr vaccines nor prior natural immunity prevent it.

                The only good news is that almost all cases are head colds at worst.

                While the progression to milder is to be expected evolutionarily, the significantly increased transmission rate is a surprise.

                The higher the transmission rate of a variant the less likely a new successful variant should be.

                If infection induced imunity was long lived – covid should naturally burn out withing 6months to 2 yrs.
                But when immunity is short lived the virus should become stable and endemic.

                1. “mild, not minor.”

                  No big difference.
                  Major: chest, hospital, ventilator, death
                  Minor / Mild: just a head cold

        5. Denis there is very little in the way of the best scientific studies to support or reject ANYTHING related to Covid.

          In a FEW areas such as Masks – we have numerous RCT’s which are the best medical science has to offer,
          and universally say – MAsks do not work.

          But in almost everything else – wither we are dealing with data analysis from the real world, Anecdotes, or studies conducted under sub optimal standards.

          This is true – whether you are looking for Support FOR Government public health policies, or Against it.

          This is one of the reasons we have so much conflicting results.
          This is not a flaw, it is how actual science works in rapidly emerging areas.
          Though Covid has been arround long enought we should be getting better quality information and we are not.

          We are however have more than enough from direct observation fot eh real world to state unequivally that
          NO PUBLIC POLICY had consequential positive benefit
          You do not need RCT’s to establish that.
          All you need is the lack of dramatically different results in places where policies were dramatically different.

          It was reasonable for CDC etc. to make RECOMENDATIONS based on the best data at the moment.
          It was MORALLY WRONG for anyone to convert recomendations of any kind into FORCE.

          It was however NOT REASONABLE for CDC etc to revise their recomendations rapidly as the DATA failed to bear those recomendations out.
          And there is not a single CDC recomendationt that I can think of that has reliable data to support it at this time.

          And YES, the DATA – even that provided by CDC does NOT support claims of significant worthwhile benefits to vaccination for any outside high risk groups. And even those groups the results are ambiguous.

          That is the actual science. What YOU and CDC did with RECOMENDATIONS and DICTATS was religion not science.

          1. Indeed. “…they say things like ‘Trust the science’, ‘Have faith in the science’. You don’t have faith in science. You have faith in religion. Science is empirical data. The reason why we know about the speed of light and black holes and all that stuff, and we have a different idea about gravity, is because Einstein challenged science to question science. You don’t have faith in it. You don’t trust science. You question it. Lies don’t like to be questioned. Truth doesn’t mind being challenged.” –Jimmy Dore

    3. Your story is quite interesting – though you do not cite a time frame, the FACT is that from start to finish the Doctor you have problems with has proven correct.

      Not only aren’t masks effective against covid, but they are not effective against any repiratory virus and we knew that as a result of atleast 11 RCT’s in the 21st century prior to covid. Further even if the laboratory measure of 77% effectiveness for an N95 mask were correct – that is not even close to the necescary effectiveness. Covid RCT’s have found that over 90days the effectiveness of Masks is about 10% and that will continue to decline over time.

      A mask has SOME benefit if used EXCLUSIVELY to protect a vulnerable population – and ONLY that vulnerable population, and only if you can take significant other steps to reduce their exposure.
      Broadly used the benefits of masks are not only ZERO – but net harmful to vulnerable groups.

      I have lost the thread on the merits of Vaccines. Between conflicting studies, manipulated data. various mutations of covid, what is CERTAIN is that universal vaccination was a huge mistake. No one under 20 that does not have a significant risk factor should have been vaccinated. It is clear the risks outweigh the benefits.
      Conversely it is Probable – though less certain that people with resk factors and the elderly probably should have vaccinated.
      It is also likely that mass vaccination of people under 50 was on net harmful – not just to those under 50, but to the more vulnerable.

      One of the MATHEMATICAL factors that YOU and so many other just did not get is that if your goal is to protect the entire population – rather than the most vulnerable, then you MUST get the transmission rate Significantly below 1.0. Nothing we have done did that.
      Nothing we have done came close to doing that. That means that the Broad use of measures that had SOME benefit HARMED the most vulnerable – by protracting the pandemic and their exposure.

      It was evident that the vaccine was NOT going to stop the epidemic when its initial effectiveness 2 weeks after the 2nd booster was 97% and the half life of effectiveness was estimated at 6 months. Neither of these was sufficient which AGAIN meant broad vaccination – as opposed to targeted vaccination fo the vulnerable would be a NET HARM.

      There was some data that looked good at the time that the vaccine was effective at reducing the symproms of Delta. But Delta was replaced by Omicron in late 2021, the vaccine is ineffective against omicron – until recent boosters, and omicron itself has a much much much lower mortality than delta. It is uncertain whether the risks death from covid outweighed the risks of the vaccine with delta’s higher mortality rate.
      That debate ended with omicron.

      Subsequent variants have become increasingly more contageous and increasingly less fatal. If the vaccine was ever worthwhile – it most certainly is not now.

      Further more recent data is that the effectiveness of subsequent boosters is about 54% and the half life is only 8-10 weeks.
      That means they are nearly useless for any population.

      Or put more simply – the doctor you think was spreading misinformation was one of few spreading correct information.
      Those you chose to beleive spread false information.

      1. John Say, you are correct in general. But the man commenting appears to be elderly. Given how age-skewed the impact of Covid is, the case for vaccination is stronger for those who are old. But even for them there are studies suggesting the vaccines may do more harm than good. Given the data, at this point it is not clear to me that anyone in generally good health will benefit from the vaccines.

        1. I am neither agreeing or disagreeing.

          My MAJOR argument is that it is crystal clear that no one should have EVER been FORCED to
          Mask,
          Shutdown,
          Vaccinate
          Be silent.

          And that using FORCE was in and of itself WRONG from Day one.

          With respect to information that is coming out:

          Myocarditis risks especially for men under 50 are sufficient that I would not trust a doctor recomending mRNA vaccines for men under 50.
          Covid’s trheat for those under 20 is so low – that unless you have a risk factor if you are under 20 recomending a vaccine appears to be malpractice.

          There is growing evidence that multiple boosters is resulting in Tcell exhaustion – comporomising your entire immune system against anything.
          There is growing evidence that multiple boosters are decreasing in effectiveness.
          There is gorwing evidence that our excess death rate is about 3 times what it would be from Covid alone – and the most likely cultprit for about half that is the mRNA vaccine.

          In addition to NOT being FORCED to do some things,
          we also NEVER should have been FORCED NOT to do things.

          There is conflicting data on Ivarmectin and HCQ. You can choose what data you wish to buy.

          But most important there is ZERO clear and convincing data that EITHER are harmful.

          One of the tell tale signs that the left has converted Covid into a religion is the FACT that they are not just telling you what you MUST do,
          But what you CAN’T.

          No Doctor would violate the hipocratic oath by giving a patient Ivarmectin or HCQ.
          With minimal care these are cheap and at worst harmless.

          Threatening people for doing something that may or may not work but causes no harm is religious tyranny not science. Not medicine.
          It is a desparate control fetish and you should NEVER trust anyone who would do that with any power at all ever.

          The standard to prohibit to do whatever they please is not
          What they wish to do is not proven efffective.
          It is not even it is proven not harmful to them.
          It is that it is not proven harmful to others.

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            Featured
            New Peer-Reviewed Study: Over 217,000 Americans Killed by COVID Vaccines in Just the First Year Alone!
            by Steve Kirsch | Substack
            January 25th 2023, 5:12 pm
            Serious adverse events were ~5X higher than what Pfizer reported in their Phase 3 trial
            But it’s OK because they are immune from prosecution More……….

            https://www.infowars.com/posts/new-peer-reviewed-study-217000-americans-killed-by-the-covid-vaccines-in-just-the-first-year-alone/

    4. I volunteer to give the eulogy i.e. the “always leave ’em laughing when you go” speech at your funeral when blood clots, you know the new ‘consensus” shove you off to bliss eternal.

    5. Dennis – It is odd you would put so much faith in the remarks of Anthony Fauci. Along with Francis Collins, Fauci is probably more responsible than anyone for the development of this virus in the Wuhan Lab. Yet, instead of directing anger at Fauci, you actually find a way to blame Trump! The anti-Trump mania of the American Left makes it difficult for people like you and Gigi to notice obvious facts. BTW, if you really want to be well-informed about COVID, I suggest you watch the podcasts of Dr. John Campbell out of the UK. The DarkHorse podcast in this country is also a genuinely scientific look at the problems of the virus and its mutations, and the problems relating to the Pfizer “vaccine” itself, which seems to have long term ill-health effects, esp. for young men.

      1. Because those on the left are devoid of any other religious or moral values, they make a religion out of other things.

        That is what we have seen with Covid.

        Dennis wants to punish those whose professional judgement diverged from those with power.
        Yet, the worst peoblem with our handling of covid was the supression of the professional views of those who differed from those with power.

        If the disenters were right 5% of the time – that would be sufficient to REQUIRE that their voices were heard.

        Yet, with covid the dissenters have been correct near 100% of the time, while those in power have been right about almost nothing.

        At the very least this should compell us to grasp that we can not give people power to make these choices for us, and we can not supress those vioces in dissent.

        Instead we have the opposite, the demand for ever more power – the demand to punish those who disented – even if they were right.

  9. “We have met the enemy and they are ours.”

    – Commodore Oliver Hazard Perry, September 10, 1813
    _____________________________________________

    Of course, AB 2098 is unconstitutional through its denial of natural and God-given freedom, free enterprise, free commerce, freedom from unenumerated regulation, freedom of healthcare choice, the 5th Amendment right to private property, the 1st Amendment freedom of speech and its denial of the 10th Amendment powers reserved to the people, or to the States, which are not provided to the United States nor prohibited to the States.

    Members of the California Assembly who supported AB 2098 must be prosecuted, at a neutral venue deep in the heart of Alabama, to the fullest extent of the law and with extreme prejudice for nullification, subversion and insurrection, for treason for “adhering to their Enemies, giving them Aid and Comfort,” enemies such as China, Russia, Cuba, North Korea, Iran, Venezuela, Vietnam, and as direct and mortal enemies of the American thesis, the Constitution, the Bill of Rights, Americans and America.
    _____________________________________________________________________________________________________

    10th Amendment

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  10. While I am glad the law has (finally) been struck down, and hope it stays down. I must say I have a problem with the “natural immunity” theory. I can’t think of a single disease, plague or virus that has EVER been eliminated by “natural immunity,” There have been some such as Smallpox and Polio that have been eradicated but it was due to vaccinations, not because of some kind of “natural immunity.” Others, such as Yellow Fever, were eliminated after health authorities encouraged cities such as Memphis to clean up their water supplies to eliminate mosquitoes. When I was in the military, I was required to keep my Yellow Fever inoculations up to date, also Hepatitis shots.

    1. you can’t think of =examples bec you know nothing. smallpox was virtually eradicated before the vax made the scene. inform yourself.

    2. If you were correct – humanity would have been eradicated long ago.

      The FACT is that until the modern era ALL diseases were overcome through natural immunity.

      What is true in the modern era is that for SOME diseases – usually the ones that natural immunity is most effective against,
      Vaccines are also effective.

      The immunity confered by infection is nearly always vastly superior to that from vaccination. The difference is that the mortality rate from infection to get that natural immunity is usually higher than that of the vaccine.

      Fundimentally the decision to vaccinate – espeically to mass vaccinate is a math problem dependent on the transmission rate of the disease, the effectiveness of the vaccine, the half life of effectiveness, the mortaity rate of the disease and the mortaily rate of the vaccine.

      Covid is on the wrong side of the math for most people.

  11. AB 2098 was authored by Evan Low (D-Campbell,CA). If he’s your Assemblyman, I suggest calling his office and suggesting he take a course on legislative draftsmanship.

  12. Politicians and their pretentions of superiority of intellect are truly laughable. Writing laws about scientific when they cannot define the biological definition of Woman.
    Is this latest example the fault of the politicians, or those that elected the dullard fools?
    Ken Kesey’s book title “One flew over the Cuckoo’s Nest” may have been clairvoyant as the insane have seized the asylum of the legislature.

  13. The excerpts from Judge Shubb’s opinion are excellent. Ultimately, he decided on 14th amendment “void for vagueness” grounds so did not reach the 1st amendment issues.

    1. It was also interesting to see that Shubb relied on cases brought by pro-abortion groups to conclude that this law was void for vagueness. It is ironic that cases decided in favour of one progressive cause are now being used against a different progressive cause.

      1. Thanks for the information Daniel. I noticed that Shubb discussed the importance in first amendment cases of having a lower Standing/Injury standard and a tougher vagueness standard. I assume JT agrees with that approach.

    1. Deboluccia,

      Thank you for that. I was going to comment that ‘consensus’ should not be the holy grail of immutable Truth but you beat me to it.

    2. deboluccia: No, it hasn’t. Take insulin for diabetes, for example. Scientists agreed, long before they came up with a way to extract the hormone from the pancreas tissue of pigs and cattle and administer it to humans, that insulin could lower blood sugar in diabetics. The same is true for people with low cortisone levels due to adrenal insufficiency. They took adrenal glands from animals and extracted the hormone and administered it to people with adrenal insufficiency and inflammatory conditions. Scientists agreed that there was some “vital amino acid” that prevented diseases like rickets and scurvy, diseases due to insufficient vitamins–the word “vitamin” was obtained from “vital amino acid”. They agreed that eating citus could prevent scurvy before they understood that it was the Vitamin C in the citrus hat made the difference. You are just parrotting some lie you heard on alt-right media, all calculated to defend the arrogant pig who thought he knew more than doctors, and who is now lying about “firing” Dr. Deborah Birx, and to defend against the ongoing damage this pig has done to public health–not just from his COVID lies, but also undermining confidence in vaccinations and science in general. There is a recent trend of parents refusing to get their children vaccinated against measles, mumps, rubella and other contagious diseases, vaccines for which have been safely used for decades, due to the misinformation and lies put out by irresponsible media. As a result, pregnant women who come in contact with children unvaccinated against rubella are at risk of their fetus dying in utero and/or becoming brain-damaged due to contracting the virus. Look up what happened to actress Gene Tierney (“Laura”) if you don’t believe me. She was in early pregnancy while on a tour to promote a film and a fan who had been exposed to rubella just “had” to meet her favorite actress. Tierney contracted the virus and her daughter was born blind and severely brain-damaged. She lived in an institution for her entire life as a result. Now, we have effective vaccines against rubella, measles, mumps, hepatitis, flu, papilloma virus, pneumococcal pneumonia and other diseases but people are refusing to follow their doctors’ recommendations, all due to alt-right misinformation and lies about nonexistent risks. More fallout for which Donald Trump is directly responsible due to his arrogance and ego.

      2. Take your killer Frankenshots and shut the f*ck up, you maskurbating sheep! Baaa baaaa baaaa….

  15. “Even a modest familiarity with the history of science offers many examples of matters that scientists thought they had resolved, only to discover that they needed to be reconsidered. Some familiar examples are Earth as the center of the universe, the absolute nature of time and space, the stability of continents, and the cause of infectious disease. . . . Science is a process of learning and discovery, and sometimes we learn that what we thought was right is wrong. Another popular move is to say scientific findings are true because scientists use “the scientific method.” But we can never actually agree on what that method is. . . . In my view, the biggest mistake scientists make is to claim that this is all somehow simple and therefore to imply that anyone who doesn’t get it is a dunce. Science is not simple, and neither is the natural world; therein lies the challenge of science communication. What we do is both hard and, often, hard to explain. Our efforts to understand and characterize the natural world are just that: efforts. Because we’re human, we often fall flat.”
    https://www.scientificamerican.com/article/if-you-say-science-is-right-youre-wrong/

    1. Sadly, the Scientific American seems to have left science behind. They are fully onboard with the Wokesters and their DIE and with the idea that CO2 is evil and that by achieving Net Zero we mere humans can control the Earth’s climate. This is hubris cubed.

  16. Thank goodness we still have judges like Judge Shubb. This law is problematic on so many levels, most of which were touched on by the good judge. There is another level that should also be mentioned: the difference between clinical evidence and evidence from controlled scientific studies. It’s one thing to develop a vaccine in a lab, quickly test in on a few thousand people and observe them over the course of a few months. It’s quite another to be a doctor in a clinical setting, seeing hundreds of patients a week, and observing first-hand the reactions from a range of patients — many of whom might not meet the vaccine study’s criteria. Not to mention that the studies of these vaccines were done by the pharmaceutical companies themselves. My guess is that this law was the result of lobbying by Big Pharma, who doesn’t want its “scientific” results questioned. I assume that many doctors are liberal Democrat voters. Will this constitutional overreach convince any of them that their party is rotten to the core?

    1. Giocon: I agree with much of what you say but I think your assumption about doctors’ political leanings are not necessarily based in fact. If California doctors were toeing the party line there would have been no need for this law. In fact I remember early in 2020 an article appeared in the wsj by a couple of California doctors who were successfully treating covid patients with hydroxychloroquine, Trump’s miracle drug we weren’t allowed to talk about.

  17. Fauci used MSNBC and CNN as political bomb shelters to shield himself and the CDC from questions about gain-of-function research. He, like Hillary, discovered that offshoring his dirty tricks allowed him much more latitude than the law allowed. Unfortunately, it now appears likely that that behavior led to the deaths of millions worldwide.

    I say this as someone who initially trusted the CDC and said so on this comment board. I now trust nothing pushed by the CDC. MSNBC and CNN were among the worst of the CDC’s propagandists, and that’s a crowded field.

    But there’s more bad news. Scarborough was ranting about masks just this week and millions still listen to his kind and only to his kind. People like him at MSNBC are the real threat to democracy.

    If they can kill millions and scold the rest of us, what won’t they do?

    1. There’s science and then there’s facts. Scott Adams is another convert to the facts:

    2. I dont have any advanced degrees, but from the onset, everthing was backward.
      Never before have we ignored the vulnerable by locking up the non-infected.
      We knew for a month there were co-morbidities. Age, weight, damaged immune systems, diabetes, It would have been simple to come up with a score for the vulnerable and isolate them. Schools would be at the bottom of the scale. But instead we decided to isolate all. Something that was never done for a respiratory virus. Nursing homes would obviously been a place to use extreme measures. but instead, some places demanded nursing home take in those with covid infections.
      Everything was backwards, with no explanation why.

      2. You’re right, Iowan2! It’s as if the past 150+ years of medical protocol, practice, and education couldn’t possibly be applied to what was quickly classified as another variant of ‘coronavirus’. No siree! We gotta do the exact opposite of everything we’ve learned about coronaviruses and how they spread. That’s been something I’ve questioned from the very beginning – the complete reversal of established, proven effective, medical practices for a new, ‘novel’ virus discovery. When practicing doctors, the ones seeing and treating patients in person – instead of those reading reports from ‘experts’ who haven’t seen a patient in 20 years – are being silenced (or worse), something political is surely underway.

  18. Between this and CA’s newest tax scheme, the only people going to be left in CA is those who cannot afford to leave, those who benefit from various government welfare programs and witchdoctors.

    1. ” Walker:Part of what they [Pfizer scientists] want to do is, to some extent, to try to figure out, you know, how there are all these new strains and variants that just pop up. So, it’s like trying to catch them before they pop up and we can develop a vaccine prophylactically, like, for new variants. So, that’s why they like, do it controlled in a lab, where they say this is a new epitope, and so if it comes out later on in the public, we already have a vaccine working.

      Veritas Journalist:Oh my God. That’s perfect. Isn’t that the best business model though? Just control nature before nature even happens itself? Right?

      Walker:Yeah. If it works.

      Veritas Journalist:What do you mean if it works?

      Walker:Because some of the times there are mutations that pop up that we are not prepared for. Like with Delta and Omicron. And things like that. Who knows? Either way, it’s going to be a cash cow. COVID is going to be a cash cow for us for a while going forward. Like obviously.

      Veritas Journalist:Well, I think the whole research of the viruses and mutating it, like, would be the ultimate cash cow.

      Walker:Yeah, it’d be perfect.”

      ” Walker:[Big Pharma] is a revolving door for all government officials.

      Veritas Journalist:Wow.

      Walker:In any industry though. So, in the pharma industry, all the people who review our drugs — eventually most of them will come work for pharma companies. And in the military, defense government officials eventually work for defense companies afterwards.

      …

      Veritas Journalist:How do you feel about that revolving door?

      Walker:It’s pretty good for the industry to be honest. It’s bad for everybody else in America.

      Veritas Journalist:Why is it bad for everybody else?

      Walker:Because when the regulators reviewing our drugs know that once they stop regulating, they are going to work for the company, they are not going to be as hard towards the company that’s going to give them a job.”

    2. I saw that this morning from Dr. Robert Malone. Another disclosure was the “revolving door” between Big Pharma and the regulatory agencies. How is it possible to trust the FDA to do anything other than “regulate” their way into a lucrative position within the companies they are regulating?

  20. Strange that Judge Slaughter was appointed by Joe Biden, and Judge Shubb was appointed by George W. Bush. Judge Slaughter is using a logic that only Mr Biden could understand.
    Svelaz uses no logic at all.
    Comparing a decision to take a vaccine vs driving on the Highway.
    Contemporary medical consensus is very much a misnomer and changes virtually day by day. It can change with the next paper published. Iowan2’s description of H. Pylori and the evolution of the cause and treatment is excellent. It overturned decades of clearly established and logical treatment except the treatment was all wrong. I was there in training and practice as it occurred. Most of us reacted to this finding with incredulity.
    Same with the treatment of antibiotic induced colitis. Decades of search with no results. Septic and dying patients then treated with resection of the entire colon in desperation. And all because of a toxin from a bacterium. Not the bacterium itself but the toxin it expressed. We know so much about the human body but no where near everything. In just a few decades we won’t unravel 3.5 billion years of biological change.
    And I won’t even get into the lying by certain government employees in Medicine ie:Dr Birx in her own book and others.
    Just a caution, whenever small groups of “medical authorities” or others try to control the narrative in medicine, they are usually hiding something and / or lying. You almost never get the whole story until you sift through the wreckage later. You have to leave it open and chaotic for all the “facts” to be expressed and then try to see what it all means.
    Also remember when there is a malpractice case there are always “experts” on both sides. I think the bigger question is did the US CDC and FDA commit medical malpractice.

    1. GEB, the problem is the majority of those who cite the Barrinton declaration or read about it have pi$$ poor reading comprehension skills. To think that the majority of people understand scientific studies and complex issues enough to really understand what they are reading is laughable. When people can’t tell the difference between fact and opinion and nuance and context it creates an atmosphere ripe for rampant conspiracy theories and BS claims. There are those who take advantage of those kinds of people to push an agenda that is equally filled with ignorance and before you know it starts a self sustaining series of conspiracy theories. When ignorance gets really bad it’s impossible to see the truth. It becomes dangerous and creates a lot of preventable deaths.
      During the height of the pandemic there were people dying still believing they were being denied a cure. Some realized the truth at when it was too late for them.

      The Barrington declaration was sponsored by a libertarian think tank which often pushes the idea that it’s every person for themselves instead of cooperating for the greater good of everyone.

        1. Upstatefarmer, you read it without verifying it’s claims. Plus you didn’t recognize that it gives you a false choice. If you really want to understand it you should read criticisms of it instead of only those that support it. Reading why the Barrington declaration may not be saying what you think it says would require you to read the rebuttals from experts. That doesn’t mean you have to agree to what they say, but it would give you a different take on what you think it’s saying.

          2. Tell us the major points of the Barrington Declaration that are wrong and tell us why. Don’t merely repeat garbage and phrases that do not fit together.

      2. Having read the Great Barrington Declaration as well as having read Ioannidis’ Wiley papers in March and May of 2020, I can say with confidence that it was not written FOR a libertarian think tank and it did not, in any way, support an every man for himself philosophy. It, and the prior Ionnidis papers, asked that we consider gathering data prior to making huge changes that may cost more lives and have long term negative societal iimpact. Instead of heeding this advice (actually, Ionnidis gave it as a thoughtful suggestion based on his admittedly limited data gathering) our government chose to continue to forge ahead with grossly overgeneralized and sweeping mandates that were not based in a consensual “Science”.

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