As you all know, on September 30th, Governor Newsom signed AB 2098, which created a sort of “new” Covid misinformation/disinformation law. I put “new” in quotes because the Medical Board took the position during the legislative process as well as in response to the first lawsuit challenging the law, that it already had the power to sanction physicians for spreading Covid misinformation to patients under its general powers.
I personally think that’s a dubious proposition, but I suppose it does not matter to anyone, except perhaps doctors who are currently under investigation for Covid misinformation under the Board’s self-proclaimed general powers to control physician speech. And that is because AB 2098 won’t become law until January 1st, at which point it will be Bus. & Prof. Code 2270. So any doc who is being investigated for now for prior speech is being done under the Board’s general authority since laws don’t apply to conduct before the law goes into effect. (The call that the ex post facto prohibition).
There is at least one medical doctor that we know of that is currently under investigation for spreading Covid misinformation to the public (which by the way is not included as a violation of AB 2098/2270), and that would be Dr. McDonald as in McDonald v Lawson, and that being the first case filed against AB 2098.
The preliminary injunction motion seeking to stop the Board from enforcing the new law is set to be heard and decided tomorrow, November 17th in Los Angeles federal court. The arguments in favor are pretty much as you would expect, free speech and vagueness. The plaintiffs were a little coy and vague about how the law would directly adversely affect them, which is understandable since the Board takes the position that they have the right to investigate physicians to ensure that they are complying with the law. Hopefully, their coyness and some other things won’t knock them out of the box on standing grounds.
In response, the Board is basically saying that it has the right to investigate and sanction physicians for the information and advice they give to patients. A recent 9th Circuit case that attempts to limit the most recent Supreme Court decision on “professional speech” ostensibly seems to back the board up on that. But what is ostensibly so, isn’t necessarily so at the end of the day. My guess is that one way or the other, sooner or later, some court in some case is going to reject the Board’s position. By tomorrow afternoon, we will all know more.
The second AB 2098 challenge was filed in early November and is scheduled to be heard in a Sacramento federal district court in mid-December. The same basic deal, motion for preliminary injunction based on free speech and vagueness. The lead plaintiff, Tracy Hoeg MD Ph.D. is a well-known doctor and publishes articles in the Covid. There are a couple of other docs in the suit including at least one who regularly shows up in these Covid challenges as a plaintiff. These docs are a little less coy, but still very careful about what they say in terms of their future actions.
The lead lawyer is a well-known out-of-state public interest organization attorney who has published her opinions on Covid misinformation and the First Amendment. Her local and co-counsel is California’s own Laura Powell, Esq. Many of you have heard her (and have seen the back of her head) as she methodically and quite cogently attacked AB 2098 during several legislative hearings. (And she did it in a ridiculously short amount of time; think Haiku melded on to simple declarative well-targeted bullet points. And hey technical guys at the legislature’s tech office, why don’t you spring for a second camera facing the speakers. I mean it’s 2022!.)
This lawsuit has gotten more publicity than the first one, and that’s a good thing since I think it is quite a bit stronger and better written than the first. There hasn’t been a response yet to this second case, but by my calculations, it should be filed within the next week.
Surprisingly, none of the Cali. interest organizations have directly weighed in yet. However, I think that will change in the next couple of weeks. I also think you will see a more detailed and comprehensive attack on the largely illusory “scientific consensus” which is at the heart of the new law. So stay tuned.
Rick Jaffe, Esq.