The hearing before the Senate professions committee (not its actual name) just ended. 8-4 (I assume on party lines) in favor of moving the bill. The bill goes next to the Senate appropriations committee. The bill will surely pass through that committee.

I was surprised by a few things: First and foremost, the sponsor, Assemblyman Low showed no great understanding of the bill or the issues. He just kept repeating buzz phrases. Maybe he’s a good legislator, and maybe he’s not an idiot, but his performance today proved neither.

Senator Pan tried to rehabilitate him through a lengthy monologue posing as a couple of questions. He did what he could, but as a skilled legislator, he obviously knew he had the votes, so for him, it was all a meaningless show.

The assemblyman did point out two related and very interesting facts, which to me proved the opposite of what he was using them for.
He said that no other state yet had a covid misinformation bill pending like his bill, but 31 states have bills pending preventing the state boards from prosecuting doctors for covid misinformation.

His point was that California as usual was at the forefront and leads the way. But given the bill and especially how it started out, the better and more obvious point is that the 31 other states know that Low and his other co-authors can’t legally do what they are trying to do.

The female Senators who spoke out against the bill seemed to grasp the basic problems with the bill, mainly that science changes, and what is covid misinformation one day, might be (and in fact, has turned out to be) covid truth on another day. I thought those three female senators could have used a one-on-one with a knowledgable professional like me or the female attorney speaker in opposition (Laura Powell), and if they had that input, their questioning would have been sharper. But like I said, in the end, they got the core issue and problems with the bill, and they stuck to their guns. Good on them.

The thing that surprised me the most is that no one seemed to really understand the bill in a couple of critical respects. The most important of which was the overemphasis on covid disinformation and the requirement of an intent to defraud or mislead. What they all seemed to miss was something I have pointed out before; covid misinformation is also a grounds for discipline and that doesn’t require any intent. In any government prosecution, the preference is to charge with the lowest intent requirement possible. The hardest case for a defense attorney to defend against is a crime with no intent requirement, and charging a doc with covid misinformation does not require proof of intent.

The thing I didn’t understand from the sponsor’s remarks is that I had thought the bill had been amended again, to knock out the harm from the misinformation consideration? The chair didn’t ask the sponsor if he accepted the amendment, and the sponsor indicated that he was still working out with the board the harm (I think) and some other issues with the Board. It seemed like there might be another amendment after the sponsoring teams’ continued negotiations with the Board, but who knows.

It also seems to me that some of the Senators didn’t realize that the current bill does not cover public speech by the physicians. But these folks are busy and it’s just one of many party-line bills, so some of these Senators apparently have not spent much time actually thinking about or even looking over the bill, and still had in their minds the findings about the purpose of the bill, which is inconsistent with the latest version of the bill. (The bill was intended to stop people like Simone Gold from speaking out in public challenging the covid narrative, but the current version does no such thing because it is limited to physician-patient communications).

All in all, it was a dizzyingly and confusing hearing. Both speakers arguing against the bill, Laura Powell and physician Aaron Kheriaty were quite good, especially considering that they only had 3 minutes between them.

Like in previous hearings, the pro doc threw out some crazy examples like docs saying that there are microchips in the vaccine. I feel I can appreciate a well-reasoned argument by someone with whom I disagree, but his argument, especially the choice of examples was poor. Pan could have done a better job, and he did, during his monologue/question.

So, the bill moves forward. I am still concerned about a future major change and a step backward. Specifically, I am still concerned they will try to expand it back to cover public speaking by physicians. But even if they don’t, I still think there are constitutional problems with the bill, even in its narrowest application to one-on-one communications between a physician and patient, and that will be a focal point in the lawsuits challenging this bill.

Rick Jaffe, Esq.