(Man with shades outside Sacramento Federal Courthouse after oral argument in the challenges to AB 2098)
We had the hearing on our challenge (and the companion challenge filed by a high-profile Washington D.C. public interest group) yesterday afternoon. It was a very lively event. And because it was me, there were many lighter moments and even some robust laughter with some back-and-forth banter between us and the judge. Not so much with the Attorney General and the judge. And that might be the most important tell of the hearing. A good time was had by all of those challenging the law. But of course, you never know.
To distill our case down to the two basic arguments and the judge’s response to the Attorney general’s response, let me paraphrase and distill what was said.
On our claim that the law, and in particular the phrase “contemporary scientific consensus” is unclear, vague, and meaningless in terms of the pandemic, which we attempted to demonstrate with Dr. Sanjay’s Verma’s 40-page declaration (20 of which were single spaced references, and I pointed that out to the judge quite a few times how many pages of flip-flops the authorities have made as shown by this declaation)
The DAG: ‘The statute is clear.’
The Judge: ‘No it isn’t. It’s meaningless; it makes no sense. You have the top expert in the country first telling everyone they don’t need to wear a mask, then telling everyone to wear two masks. (referring to Anthony Fauci of course, in a somewhat critical fashion). And perhaps not by coincidence, the first substantive subject in Sanjay’s aforementioned 40-page declaration (including 20 single-spaced pages of references) was the government’s flip-flops on masking.)
The Judge Continues: ‘How are doctors supposed to know what they can and cannot say? The legislature would have been a lot better off if they didn’t have that in the statute and just made the “standard of care the applicable standard. The standard of care is a known thing and I’ve tried many malpractice cases where the standard of care was the issue and I know what that means. The plaintiffs would have had a much harder time if the Legislature had omitted “contemporary scientific standard” but it didn’t and I don’t think I can rewrite the statute by deleting words.’
On the first amendment issue, the main point made was that the law targeted speech. I showed the judge the part of the Federation of State Medical Board’s press release which started the whole AB 2098. The statute, which referred to the Federation’s press release omitted the beginning which said that the goal of the press release was to sanction physicians for speaking out in public knocking the safety and efficacy of the vaccine. But even the legislature realized that the government can’t stop doctors from speaking out in public, so they changed the bill. The point being that the purpose of the bill was not to sanction doctors for their “conduct” of interacting with the patients. It was to stop them from going on media and social media to knock the vaccine.
After hearing this and other discussions on the speech vs. conduct issue:
The Judge: ‘Ms. Liska (the DAG), you don’t seriously contend that the law only reaches physicians’ conduct and not information do you?’
The DAG: ‘Yes we do your honor’
The Judge: ‘Ok then.’
but I saw a look in him that was something between deep skepticism and disbelief.
As stated, all of the doctors and lawyers on our side of the issue were very happy after the end of the hearing. The DAGs, not so much.
Of course, you never can tell. There’s a good background story which I’ll tell another time relating to the judge’s skin in the game and the judge’s reaction to the other elephant in the room which he and I discussed repeatedly throughout the hearing and I think he was perhaps gratified about the discussion. But, more on that another time, perhaps after he issues his decision.
The judge seemed like a good guy. He gave back in banter as well or better as I gave him, (and I gave him quite a bit) But in these days and times, a little levity is not a bad thing.
The judge said he would decide very quickly.
Rick Jaffe, Esq.