As all Cali. First Amendment lovers know, on Saturday, September 30th, Governor Newsom signed SB 815 which repealed the physician covid misinformation law, AB 2098, enacted as Section 2270 of the Business and Professions Code.
On Monday morning, October 2nd, we asked our judge in Bonta v. Hoang (one of two related cases in which Judge William B. Schubb granted a preliminary injunction barring enforcement of AB2098) to change course and stop the medical boards from trying to censor physicians under a new legal theory. Potato, Potaato. It is still the same spud, and it is the same unconstitutional conceptual slight of hand to magically turn protected speech into regulatable professional conduct, just like the medieval alchemists claimed they could transmute lead into gold. That fooled few back then, and as explained below, hopefully it won’t work any better than the two previous Cali Attorney Generals who tried the same trick.
And, breaking news! we are adding two big gun MDs as plaintiffs:
Pierre Kory MD, co-founder of FLCCC https://covid19criticalcare.com/,
and (co-Mr. Ivermectin) and author of “The War on Ivermectin”
Brian Tyson MD, co-author of “Overcoming the Covid Darkness, How two Doctors Successfully treated 7000 Patients.
But let’s backtrack and see how we got here, and why what the board, the legislature and the AG’s office are doing is Deja Vu all over again, times two.
AB 2098 law was a disaster even before it stated. It originally tracked the Federation of State Medical Board’s July 2021 press release telling its member state boards to sanction doctors for speaking out against the mainstream covid narrative in public. That original bill was roundly criticized by many, because of the little thing called the First Amendment free speech clause.
The supposed fix was to limit the bill’s application to communications between physicians and patients in the form of treatment or advice. But that includes essentially all communications between them, and would in effect create a categorical exception to free speech rights just because the person has a medical license.
But here’s the thing: This so-called professional speech exception was rejected by the Supreme Court in 2018, when a previous Cali. Attorney General (Becerra) made the argument that medical professional speech is not First Amendment protected, defending the last time the legislature tried to inhibit the free speech of medical providers. (Here is the NIFLA decision for the legally trained or lay masochist.
And to add insult to injury, in the decision, the Supremes also rejected the previous time when yet another Cali Attorney General (Brown, as in Pickup v Brown) made the exact same argument about yet another Cali. law. It’s like in the movies where one bullet takes out multiple bad guys lined up one behind the other. To mix metaphors, maybe the sponsors of AB 2098 thought the third time would be the charm.
So what happened with Section 2270? It went into effect on January 1, 2023 but it was put into suspended animation (a preliminary injunction order in legal parlance) twenty two days later is two related cases, one of which I was an attorney of record (Hoang v Bonta).
Another federal district court judge (Fred W. Slaughter in the Central District) had denied two other docs’ attempt to stop the law, and they took the case up on appeal. It wasn’t pretty at the oral argument before the 9th Circuit, at least not for the third set of assistant attorney generals trying to argue that professional speech is a separate category of unprotected speech.
After two slap downs by the Supreme Court (the 9th Circuit had upheld both of the prior so called professional speech restrictions), the questioning by 9th Circuit judges was brutal (for the AG representative). It looked like the 9th was finally getting with the program, that government cannot restrict protected speech by creating a new category of unprotected speech. And, the panel basically said Judge Schubb was right in stopping the law because of vagueness.
The medical board and the legislature did not want to run the risk of losing, which would kill their efforts to continue to illegally censor physician speech, so they made a tactical retreat.
More cynically, the board, the legislature and the Attorney General are all trying to prevent the courts from reviewing the board’s continued illegal actions. The bill’s sponsor said the board can still go after doctors for exactly the same conduct which was made sanctionable under Section 2270. And the board has already filed a case against at least one doctor.
So, what does that mean?
It means that we are not done yet, and that is why we are pivoting in our case.
My view: they only get one bite at the apple. They took that bite; the apple was rotten to the core, so they threw it out. Now they are done!
The same reasoning by which Supremes rejected the two prior attempts by Cali. Attorney Generals to serve up this unconstitutional professional speech nonsense I hope and expect will prevail again, at the district court level, by the same judge who stopped the soon to be repealed statute.
For the legally adept or curious, here is the new (amended complaint). FAC. We have to go through some legal hoops, but one way or the other, the First Amendment deniers are now on notice that we are not done with them.
And like last time, I am sure some of the same AB 2098 players will be in this fight as well, and that is a very good thing. The more doctors who challenge the Cali. government on this, the better. And I am sure that there will be plenty of wonderfully informative amici briefs filed in these cases, like there were in the AB 2098 challenges.
(Here is the whole set of papers including the motion.filedstampedrule16motion
In case you lack the patience to trudge through the whole complaint, here is a small taste which calls to task the public health authorities.
“61. The more the public health authorities speak, the more the public loses faith and trust in the information and recommendations in the public health institutions’ Covid edicts, despite the almost continuous failed results and the repeated empty promises that the public health authorities will do better.9
[footnote] 9 “Public Trust in CDC, Fauci, and other top health officials is evaporating, polls find.” STAT, 9/10/2020, https://www.statnews.com/2020/09/10/trust-cdc-fauci-evaporating/ [Redfield]
“Poll Finds Public Health Has a Trust Problem.” NPR 5/13/2021,
“The CDC is beholden to corporations and lost our trust. We need to start our own The People’s CDC”, The Guardian, (Opinion) 4/3/2022. https://www.theguardian.com/commentisfree/2022/apr/03/peoples-cdc-covid-guidelines [Walensky]
“How To Make The CDC Matter Again; Missteps During The Pandemic Have Eroded The Agency’s Reputation As Competent And Dependable”” Bloomberg, 5/2/2022, https://www.bloomberg.com/opinion/articles/2022-05-02/the-cdc-needs-reform-to-restore-public-trust-after-covid-19#xj4y7vzkg [Walensky]
“CDC Announces Sweeping Changes To Restore Public Trust” North Carolina Medical Society, 8/18/2022] https://ncmedsoc.org/cdc-announces-sweeping-changes-to-restore-public-trust; [Walensky]
“Survey finds concern of political influence leads lack of trust in health agencies” Axios 3/7/2¬23, https://www.axios.com/2023/03/07/trust-in-cdc-public-health-agencies (“too many conflicting recommendations”
“Private-sector influence on recommendations and policies” are the second and third most common reasons for lack of trust in the CDC.” [Cohen]
[NPR one year later, same tune] “The new CDC director outlines 3 steps to rebuild trust with the public https://www.npr.org/2023/08/02/1191302954/the-new-cdc-director-outlines-3-steps-to-rebuild-trust-with-the-public. 8/2/2023 [Cohen]
“The CDC wants your trust back: It’ll ‘take time to rebuild.” Politico
https://www.politico.com/news/2023/09/16/cdc-director-public-trust-00116348 9/16/2023 [Cohen].
62. Upon information and belief, the public’s lack of trust is not the result of what critics of the mainstream Covid narrative say in public or to patients. Rather, it is the overpromising of the benefits of the vaccines and every booster, even though they neither prevents infection or transmission, and whatever effectiveness they have is extremely short-lived, a fact which the public health authorities irrationally both downplay and use to justify each successive booster.
63. Upon information and belief, between the studies which hint at a direct relationship between repeated boosters and increased risk of infection, excess death statistics which show increased deaths after the Covid vaccines were introduced (based on insurance company data from the US and England),and the recent concern manifest from preliminary studies that increased Covid vaccination are or may be associated with super cancers, plus the fact that emails and public testimony from public health officials which show that they have admitted or knowingly misled the public, it is no wonder that a significant percentage of the public does not believe what comes out of the mouths of the public health authorities and their shills. 10
[footnote] 10 The individual Plaintiff physicians, the physician members of the two organizational Plaintiffs, and many other physicians have the possibly quaint notion that a physician has a professional obligation/duty of informed consent which would include apprising patients of potential risks (and the risks listed on the vaccines’ labels), rather than simply robotically repeating the public health/standard of care mantra that the Covid shots and every booster has been proven to be completely safe and effective for everyone including young children and pregnant women, and everyone should take every booster (over the age of six months).
64. Upon information and belief, there is a disinformation campaign which has affected the public discourse. However, it is being orchestrated by the public health authorities with the help of corporate interests to foist on the public, inter alia, a never-ending number of boosters. Part of this disinformation campaign is to silence critics both through the Federation inspired Covid misinformation laws or standard of care prosecutions. Another part of the overall campaign (though beyond the scope of this lawsuit) are the federal government’s direct attempts to force, intimidate or cajole the social media companies to remove content which is not consistent with the government’s public health narrative. All the time vilifying physicians and others who dare to speak up. This is straight from the Orwellian 1984 government’s playbook. Newspeak is now the coin of the realm promoted by the public health authorities and their newspeak co-interlocutors.
65. The false and misleading overselling of the safety and efficacy of the Covid vaccines and boosters is most poignantly demonstrated by a recent Elon Musk tweet of a video which is a montage of headlines and public health officials’ statements initially making ludicrously false and exaggerated claims, and then having to backtrack, retract and explain away the evidence, all the time insisting that every booster (tested on 8 mice or in one case, 50 people over a two week period of time) is safe and highly effective (because it increased antibodies for as long as two weeks, and that is called a surrogate endpoint), and that everyone over the six months of age needs to take every shot and ever booster to protect themselves and to protect the public. But the public is not buying it anymore, and the Musk tweeted montage shows why. See and view https://twitter.com/elonmusk/status/1706676593261785178.
66. In times as these, many people go to their physicians for information, advice, and recommendations about what they should do about Covid, prophylactically and for treatment. It is imperative that physicians be permitted to speak their minds without fear of government reprisal. This kind of physician/patient communication is within the heartland of the speech the First Amendment protects. And, that is exactly the subject of this lawsuit, whether the government assault on this protected speech comes from a specific (and soon to be repealed) statute, or a general standard of care provision.”
And so the next Cali. Covid Misinformation battle begins.
Rick Jaffe, Esq.