If you thought the summer heat was intense, wait until you hear about how the 9th Circuit panel grilled the attorneys who argued the case (mostly one side). And hint, I’m a happy guy after hearing the oral argument. So let me share my thoughts on it.

As you may recall, this case revolves around the controversial AB 2098, California’s attempt to sanction physicians for providing information and advice to patients that is not consistent with the mainstream covid narrative. For what it’s worth, I aruged the same points of law in the prelimiary injunction motion in Hoang v. Bonta back in January, and together with plaintiffs’ counsel in the related, Hoeg case. We obtained a preliminary injunction of AB 2098, with respect to all of the doctors and members of our two plaintiff organization groups. So some compare and contrast is in order.

The most striking similarity between my oral argument before Judge Shubb and the McDonald argument is the tough time the judges gave the attorney general on the vagueness of AB 2098’s reference to “contemporary scientific consensus”. The appellate court judges have Judge Shubb’s decision before them, replete with references to Sanjay Verma’s and the five Hoeg doctors’ views on how there is no consensus because it has changed so frequently and dramatically during the pandemic. (In fact, because of the motion to intervene I filed in the 9th circuit, they also have in the record, a copy of the aformentioned 40-page Sanjay Verma declaration, so they won’t lack for references to the fact that there is no “contemporary scientific consensus.”)

The AG’s response in both arguments? If you don’t like that language, “farget aboutit”, or in legal parlance, sever it. That didn’t fly with Judge Shubb, and I don’t think it will with this panel. Judges don’t remove seemingly important words in a statute.

As I said in my prior post, Judge Slaughter (who denied the Preliminary Injunction in the McDonald case) used the wrong standard of review. He used rational relationship, the lowest standard of review. The AG argued that whatever a doctor tells a patient in a doctor-patient visit is part of “patient care” over which the board has control. Unfortunately for the board, that is not the law in this country. Information and advice given to patients is subject to what is called heightened scrutiny.

The Ninth in a prior case seemed to think it was accorded mid-level scrutiny, (In Pickup v. Brown, though in another case, Conant, the 9th used strict scrutiny). But the Supremes rejected Pickup and said that there is no special category of speech by a professional which is accorded less protection than speech by non-professionals, save for when the speech is incidental to some specific (and separate) medical act/treatment.

The Supremes were specifically critical of the government’s attempt to regulate speech by recharacterizing it as conduct, which is exactly what the AG is trying to do in these cases to defend AB 2098, i.e., calling providing any and all information and advice in a doctor patient interaction “medical care.” But like I said, the Supremes have already rejected that verbal slight-of-hand.

For these and perhaps other reasons, the judges seemed skeptical of the AG’s argument. In fact, showing her cards, one of the judges asked the AG “Assume we disagree with you and decide that strict scrutiny applies, have you met that burden?” The question most likely means that they understand that strict scrutiny applies and want her to focus on whether the state can meet its burden. Hint. They can’t because of the way they litigated the case. It’s all about whether the means used were a narrow fit to the problem to be addressed.

The lawyer for the companion case sort of showed that was no such fit. It wasn’t strong, but it didn’t have to be because the record in the case, including the amici brief, made the point better. And FYI, this was the main focus of my reply brief before Judge Shubb. The reason that there couldn’t have been narrow tailoring between the law and the problem is that the problem the law sought to solve initially was to stop docs like Simone Gold from speaking out in public against the mainstream Covid narrative. It wasn’t primarily to address conversations between doctors and patients. That is completely clear from the legislative history. Once the public speech aspect of AB 2098 was removed, the purpose evaporated. But they still kept talking about Simone Gold and how they wanted to stop her and her ilk who were undermining the public’s confidence in the health authorities’ Covid pronouncements. That all means the law can’t survive strict scrutiny because it targets both content and viewpoint speech and the law was meant to address a problem that the law ultimately did not address because they got rid of the public speech aspect. And FYI: Strict scrutiny is the kiss of death for a law or action.

A couple other interesting things. The judges didn’t ask a single question of McDonald’s attorneys. Usually appellate judges ask both sides hard questions about the weakness of their arguments. But not this time. Maybe because the judges understood it was a slam dunk (fingers crossed). OTOH, the attorney on the consolidated case, Couris, got plenty of questions but they were all procedural. In that case, the southern district judge never held an injunction hearing and stayed the case pending the outcome of the McDonald appeal. Not wanting to be left out of the fight, they appealed, got their case consolidated and had a seat at the appellate table. (Unlike me or the Hoeg lawyers. And yes I’m still miffed that the AG didn’t appeal our case, but like I said in the previous post, maybe the AG prefers to be at the 9th on cases they won). The panel wanted to know whether their ruling in the McDonald case (assuming a reversal, which was another hint of what they intend to do) would moot their appeal, and what are they seeking from the appellate court? that their case return for the hearing, or that the panel enter an injunction in that case as well, even though the district judge never had a hearing or ruled on the issue. Guess which one the lawyer asked for? I think the panel was alittle skeptical procedural-wise.

The big picture point is that McDonald was the fourth and last case argued yesterday. Two of the other cases involved covid related issues, vacation pay for covid laid-off hotel workers, and a mask accommodation for a United Airlines baggage handler. In those two case, the members of the panel were like “Hey it’s a pandemic, and people have to make accommodations, and employees have to be protected.” IOW much deference to private companies trying to protect their employees and giving employers a break because of the pandemic. That was in stark contrast to the McDonald argument, where they seems skeptical of the state’s blanket free speech control of physician communications to patients. Not dispositive for sure, but interesting and another clue.

I am one hundred percent certain that the 9th is going to say that Judge Slaughter used the wrong standard of review. I don’t see that there is enough in the record for the court to conclude that the law survives strict scrutiny. The only real question is whether reverse and grant the injunction, or send it back to Judge Slaughter to hold a hearing under the correct strict scrutiny standard. The other question is whether the attorney general will apply for cert with the Supremes. If the 9th just sends the case back to him for a new hearing under the right standard, I’d say no cert petition. More of a chance if the 9th enters a PI. But still, it’s just a preliminary injunction and that just means the McDonald case goes forward. That would be good news for our case (Hoang) and the related Hoeg cases, since we’re full steam ahead with our summary judgment motions which are seeking a permanent injunction against the law.

So far, it is looking pretty, pretty good for the First Amendment professional speech. Next up will be some rulings in the Eggleston case which should happen by mid August. So stay tuned.

Rick Jaffe, Esq.