Major First Amendment Update!

Major First Amendment Update!

Folks, I will keep this pretty simple and straight:

Biden v. Missouri

As most of you probably know, Justice Alito stayed the 5th Circuit’s decision affirming a part of the lower court’s preliminary injunction against Biden Administration officals prohibiting them from attempting to force social media companies to censor public health information the government disagrees with and thinks is dangerous.

For the reasons I set out in a recent post, I am here to tell you that the 5th Circuit reasoning and the test it created WILL NOT STAND.

I think the three liberal judges will give the government the green light to interfere as much as it wants becausee is has the public’s interest at heart, and judges have to follow what the expert public health officials pronounce as true scientific information, especially given their steller record during the past almost four years (sorry, I guess I just can’t help refrain from sarcasm, but in my defense, it is becasuse the times we live in requires some coping mechanism to deal with all the stupidity and insanity).

The three uber conservatives will go the other way, and if Gorsuch doesn’t write the opinion, he will do a concurrence with some wonderful, inspiring, principled, and beautiful language (To me, he is by far the best wordsmith on that bench, though much of the time I don’t agree with what he says, but it sounds so good).

So it may come down to the three in the middle. The government can message any way it wants, but to me, giving the government the power to tell social media companies not to allow certain points of view on public health matters in an rapidly changin public health environment/crises is appalling. And then there is the slippery slope arguement. I would hope that the liberal justices might see that danger, but I fear they are just too invested in the mainstream PR campaign of “Covid misinformation” and their reliance on crazy examples (drink clorox, the vaccine has microchips in it, etc.), such that they cannot see beyond the paperbag their heads are in (or whatever else is causing their inability to see).

Bottom line: the Supremes will take the case and issue a shadow docket opinion, 100%. I am wishing for a bright-line rule (as argued in my earlier post). Will the court create some kind of official First Amendment right for government officials to call-up these companies and say “Hi I’m for the FBI and want to chat with you”. I hope not. But for sure, the 5th’s test is not going to end up as the law.

FYI: my crystal ball sees one unexpected thing that may happen, but the result is alittle fuzzy right now. But I promise you will like it.

The Eggleston v. Washington Medical Commission case

To recap: The Washington Medcial Commission charged a retired eye doctor for expressing anti mainstream Covid information, opinions and facts in his newspaper column. The hearing was stayed the night before it was supposed to start by an appellate court commissioner. (good on me and my silver-tongued Washington co-counsel Todd Richardson, who happens to be the retained country attorney for three eastern Washington counties).

Here is the update:

1. The Commission moved to overturn the appellate court commissioner’s stay. The three judge appellate court panel denied that request, so the stay stays in place and the Commission’s hearing is still in suspended animation (but could eventually be resusitated.

2. The Commission had moved in the Superior court to dismiss the entire case. The superior court judge recently denied the motion for as long as the appeal is pending. So, another good.

3. The biggie is our motion to appeal (discretionary review of an interlocatory order). The Appellate Court commissioner (the same one who issued the stay) is still working on her decision; i.e. deciding on whether we can appeal or she tosses us out of the court of appeals and back to the superior court, which would then reconsider the Commission’s dismissal motion. Our fingers are crossed.

My prediction: If the Commissioner keeps us at the appellate court, most likely the Medical Commission will appeal (move to modify) with the panel. If the panel rejects their motion, I am predicting that the Medical Commission will drop its case against Doc Egglestion, based on 1. what the Cali. legislature just did to AB 2098 per, and what the Cali medical board termination the investigation of Doug MacKenzie after we sued the for First Amendment violations. I don’t think the Medical Commission wants an appellate court looking over its shoulder since there are reportedly several dozen similiar cases pending.

Wilkinson et al (or whoever the first plaintiff is v. the Medical Commission)

Brief history: Three Washington docs (Wilkinson, Cole and Eggleston) had filed a federal lawsuit for federal and state law claims based on the Commission’s prosecuting them (in whole (Eggleston) or in part (the other two)) for Covid misinformation. Eggleston was the only pure speech case in that the other two were charged with standard of care violations for off-label prescribing. The TRO was denied, and then the federal judge dismissed the federal claim and refused to consider the state claim.

Being the agressive guy that he is, their lawyer, Pete Serrano aka Silent Majority Foundation, filed the state law claims in a Washington state court.

Between the two filings, the Commission’s decision against Doc Wilkinson came down. As expected, they hit him pretty hard sanction-wise plus a 15k fine. (Doc Eggleston was not part of Pete’s state case because we had already gotten him a stay of the Commission’s hearing). Pete recently informed me that the superior court just issued a decision staying the new lawsuit pending the final resolution of the cases of the plaintiffs physicians (and who knows how long that is going to take and it sort of defeats the purpose of the lawsuit). Pete will appeal and may first file a motion for reconsideration. It’s a tough case for some of the same reasons I thought the federal suit was a tough one, but I am rooting for him. He is a very smart guy, and a big time health freedom warrior (and a hard core second amendment figther, (if that floats your boat).

That’s all she wrote (for now).

Rick Jaffe, Esq.

Leave a Reply