The Eggleston case is now the most important Covid misinformation case in the country, and that’s why I decided to jump into it. Dr. Eggleston is a retired ophthalmologist. He hasn’t seen a patient in ten years.
His disciplinable offense according to the Washington Medical Commission is that he made some statements in the column he writes in a regional newspaper which the Commission thinks is “Covid misinformation” and shows “moral turpitude.” As far as I can tell, this is the only medical board case in the country which is attempting to sanction a physician just for speaking out against the mainstream Covid narrative. All of the other cases involve at least some professional conduct with patients.
LET ME GO A STEP FURTHER
In the history of U.S. jurisprudence, there has never been a reported case that has stated or implied that a licensing board had the authority under the First Amendment to sanction a licensee for speaking out in public or what has been called “soapbox speech”, and I do mean never. I know that there is some law recent law review article floating around which makes an argument that the courts could or should use the New York Times v Sullivan public figure defamation standard which could justify such board action, but that is just the opinion of one guy and it is inconsistent with every signal Supreme Court justice or judge who has written about the issue, at least for the past seventy-five years. I won’t go through all the jurisprudence, but this is what Supreme Court Justice Jackson said back in 1945 in discussing whether the government had the right to suppress speech which it considered false:
“[I]t is not the right, of the state to protect the public against false doctrine. The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us. (citation committed). Nor would I. Very many are the interests which the state may protect against the practice of an occupation, very few are those it may assume to protect against the practice of propagandizing by speech or press. These are thereby left great range of freedom. * * *
This liberty was not protected because the forefathers expected its use would always be agreeable to those in authority or that its exercise always would be wise, temperate, or useful to society. As I read their intentions, this liberty was protected because they knew of no other way by which free men could conduct representative democracy.”
There are other similar statements made by judges since Justice Jackson’s opinion. It is the law of the land that pure/soapbox speech does not lose its First Amendment protection even if the government thinks it is false, or even if it is false (except in very narrow and well-defined instances, and the public speech of a health care practitioner is not one of those exceptions). So don’t listen to anyone who tells you that under the current or past law, medical boards can discipline doctors for speaking publicly about the pandemic.
What about the law in the Future?
Well, I guess that is what the Eggleston case will tell us.
The Eggleston case is set for hearing on May 24-26 at an as yet undetermined place in Washington. We have some heavyweight doctors testifying on his behalf.
Funding for this case, (legal fees and expert witness fees) unfortunately, is still up in the air. So if you can donate to this case, please do.
Donations of $500 or more will get a signed copy of my book, Galileo’s Lawyer, which is now a collectible going for over a hundred and fifty bucks (unsigned). (while they last)
Wish us luck. Your right to hear from knowledgeable doctors depends on it!
Rick Jaffe, Esq.