California’s COVID-19 ‘misinformation’ law chills constitutionally protected speech

Philip Hamburger, Columbia University law scholar, founded the New Civil Liberties Alliance in 2017. It cheekily calls itself “a civil liberty alternative to the ACLU that actually cares for the Constitution’s rights.” In opposing a California law that expands state medical board authority to discipline doctors for unprofessional conduct, two California chapters joined the NCLA.

This alliance is not surprising if you read A.B. 2098, which threatens physicians with being punished for disclosing COVID-19 “misinformation” to their patients. Jan. 1 is the date when the law will take effect. It defines “misinformation” to be advice that “contradicts contemporary scientific consensus”. This opens up to suppression of constitutionally protected speech.

The NCLA claims that A.B. 2098 is inconsistent with the First Amendment and unconstitutionally vague. In a lawsuit filed last month, the Justice Legal Center, which represents two other doctors, made similar claims.

In a recent brief filed to support the JLC’s lawsuit, the ACLU Southern and Northern California Chapters agree. They claim that A.B. They say A.B.

A.B. was supported by legislators. 2098 stated that they were concerned that doctors might prescribe dangerous and ineffective COVID-19 treatments. California’s medical board has the authority under existing regulations to bring action against doctors who are guilty of “gross negligence,” repeated negligent acts, incompetence, or any other act that involves dishonesty and corruption.

The ACLU brief notes that California courts have “long interpreted the conduct the Legislature was concerned about — including failing to provide patients sufficient information to make informed decisions, committing fraud, and providing patients medically inappropriate treatment — as fall under” this rule. “Indeed the Legislature recognized that the (medical board), when it was considering AB 2098 and considering the allegations against a doctor for this type misconduct, was’ already fully capable to bring an accusation against a doctor.”

Physicians will be disciplined for speaking out about COVID-19 under the new law. This ambiguous standard presents a problem in due process, as the law doesn’t give doctors fair notice about which conduct it affects. It encourages self-censorship, which can also pose a problem for freedom of speech.

The ACLU brief states that “physicians won’t be afraid to share their thoughts with patients about a rapidly changing disease.” The State can at any time determine that a doctor has violated AB 2098 by sharing an unorthodox opinion and pursue their medical license.

Some opinions are regarded as quackery while others could prove to be valid. In response to new evidence, the existing wisdom has changed repeatedly over the course of the COVID-19 pandemic.

A.B. 2098 also undermines the discovery process. It warns skeptical doctors to keep their mouths closed, lest they risk their livelihoods and their licenses.

He signed A.B. California Governor. Gavin Newsom admitted that COVID-19 misinformation could have a chilling effect on communications between doctors and patients. He claimed that the bill was narrowly tailored to include doctors who “act with malicious intent” or clearly deviating form the standard of care.

The law would then be redundant if that were the case. Contrary to Newsom’s wishful thinking the law will be applied as written. This should alarm anyone who cares about the Constitution’s rights.

Jacob Sullum, a senior editor at Reason magazine.

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