Yesterday afternoon, I appeared in Sacramento federal court for a hearing (i.e., listening to the judge’s decision and getting a limited opportunity to respond) on our motion for a preliminary injunction and the Board’s motion to dismiss the case.

Per the title: the Board 1, Mackenzie/Jaffe 0.

I thought I was right on the law and I thought I had the facts on our side, especially since 1. there has never been a court in the U.S. jurisprudence that has allowed a board to sanction or even investigate a health care provider based on the provider’s public speech, 2. the Board admitted that contrary to its claim on its web site that humans screen complaints, a computer generates a form letter asking the doctor to respond to the complaint, and 3. the Legislature declined to give the board the power to investigate the public speech of physicians.

However, the judge said that he agreed with everything the Board said, most notably that the Mackenzie did not have “standing” to sue (i.e., the right to sue in federal court) because nothing happened to him; he just got a form letter asking him to explain and justify his comments to the school board.

To me, (and I think most attorneys versed in First Amendment law), that sounds like his speech is being “chilled.” But the judge didn’t see it that way (despite all the case law to the contrary). He also said that the case was moot, because the board terminated the investigation. But, it is established law that a First Amendment case can’t be dismissed on mootness grounds unless the government proves that its conduct could not possibly recur. The Board offered no such proof. The reason for this rule is obviously to stop the government from undercutting First Amendment challenges by dropping the case and then arguing that the case is moot.

More surprising still, he said the Board did not have a policy of pursuing physicians for Covid Misinformation and that Board President’s Lawsuit statement in the February 10-11 minutes (“Agenda 5 President’s Report including notable accomplishments and priorities”) was nothing. We argued that it was an illegal policy or at least a direct threat to physicians. But I guess when the president of the Board says that the Board’s priority is to stop doctors from disseminating Covid misinformation, maybe she was just kidding.

Even more surprising, he said her statement wasn’t reliable because it was not a verbatim transcript. I pointed out that she had signed and subscribed to the accuracy of the minutes (a point I made in the papers in response to the Board’s ridiculous point about that in its papers). The judge didn’t have an answer to that.

He also thought her statement was “hearsay” but he was wrong about that too. (Hearsay is an out of court statement offered to prove the truth of the matter asserted. A statement which is offered for another purpose is not hearsay).

We didn’t offer the statement to prove that what she said was true. In fact, we argued that what she said was false, which per the above, means that the statement was being offered for a non-hearsay purpose, namely a speech act/threat which physicians had a right to take to heart and self-censor, which confers standing in the absence of actual government action. (Yes this is in the weeds, but it helps paint the picture of how result-oriented and wrong the judge was on the big and small things.)

What’s next?

Unclear at this point. Originally I had thought we’d take this case up on an expedited appeal/stay and could reach the supremes pretty quickly. However, frankly the community support for the case has been much less than expected, so that may not happen. But we’ll kick it around.

This really isn’t a close case, at least under the case law. However, sometimes it is more about “fighting city hall” when you’re in the city your fighting against. Or maybe it’s a California liberal trust the government thing.

No good news here, except that the Board did drop the case right after I filed suit. So, maybe that might work again for other docs who have received these standard form letters or where matters have proceeded even further.

It has also been suggested that the Board is now on notice that the VC community is watching them, and perhaps the Board might be more circumspect (or ask its computer to do a little more processing because it generates these letters).

In short, free speech took a blow yesterday. This battle may continue, but if not, there will be other battles.

Rick Jaffe, Esq.