Yesterday, April 23, 2024, Judge Shubb denied our motion for a preliminary injunction in Kory v. Bonta. The case, as you will recall, was a follow-up to the Hoang and Hoeg cases challenging AB 2098, where in January 23, 2023, Judge Shubb granted a preliminary injunction baring enforcement of the law. The judge recently dismissed both of those cases after the 9th Circuit dismissed the two other AB 2098 cases on mootness grounds, because the legislature repealed AB 2098 (Section 2270 of the Business and Professions Code).

The heart of the First Amendment part of his decision was that anything a doctor says to a patient involving medical care is regulatable by the medical board because all such speech is incidental to treatment, some treatment.

But I am here to tell you that is not the law in this Circuit or in this Country, at least not according to the two leading 9th Circuit cases and the Supreme Court.

Here is one part of his analysis (and actually I agree with what he says, mostly:

“Thus, when a doctor speaks in his capacity as the patient’s treating physician and incident to his provision of medical care, the physician’s words constitute regulable conduct. Returning to the situation posed by Dr. Kory, his discussion with a patient of the “pros and cons” of ivermectin and a statement that he generally recommends the use of that treatment for COVID-19 could be considered speech. See Conant, 309 F.3d at 634; see also Pickup, 740 F.3d at 1229 (law banning conversion therapy was constitutional in part because it “allow[ed] discussions about treatment, recommendations to obtain treatment, and expressions of opinions about” treatment). If Dr. Kory were to prescribe the medication, instruct the patient to take the medication, or otherwise use words to treat the patient — for example by saying, “I recommend that you take 10 milligrams of ivermectin once a day for seven days” — Dr. Kory’s words could constitute conduct regulable by the state, as his speech was incident to his treatment of the patient.”

Judge Shubb is 100% correct that if Pierre writes a prescription for Ivermectin and verbally tells the patient to take 10 mg….. That speech would not be protected and would be sanctionable as incidental to the medical act of writing a prescription.

However, as the Judge also says, these two cases (Conant and Pickup) allow doctors to make recommendations (and provide information) about treatment they would not be able to prescribe or perform, if the treatment were performed by speech like in Pickup, which involved sexual reorientation talk therapy.

Our position throughout this case and in Hoang was only about information and recommendations, not about actual treatment or the speech incidental to the treatment. The distinction may seem a little fuzzy to some and even some or many lawyers, and the courts readily acknowledge (as Judge Shubb did) that separating the two is sometimes difficult, but it is a distinction recognized in all modern professional speech cases.

What Judge Shubb did and why I am fairly certain that the appellate court will reverse is that he created a category of professional medical speech (i.e. speech by a doctor to a patient) and then held it to be unprotected by the First Amendment. Here is what the Supreme Court said the last time it struck down the Ninth Circuit’s floating the professional speech doctrine. The case dealt with notices which pro-life pregnancy centers were forced to post about the availability of free abortions. (Facts they were none to keen on posting and argued they had a First Amendment right not to post the info. The Supremes agreed with them.)

“Although the licensed notice is content based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates “professional speech.” 839 F.3d, at 839. Some Courts of Appeals have recognized “professional speech” as a separate category of speech that is subject to different rules. See, e.g., King v. Governor of New Jersey, 767 F.3d 216, 232 (C.A.3 2014) ; Pickup v. Brown, 740 F.3d 1208, 1227–1229 (C.A.9 2014) ; Moore–King v. County of Chesterfield, 708 F.3d 560, 568–570 (C.A.4 2013). These courts define “professionals” as individuals who provide personalized services to clients and who are subject to “a generally applicable licensing and regulatory regime.” Id., at 569 ; see also, King, supra, at 232; Pickup, supra, at 1230. “Professional speech” is then defined as any speech by these individuals that is based on “[their] expert knowledge and judgment,” King, supra, at 232, or that is “within the confines of [the] professional relationship,” Pickup, supra, at 1228. So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scrutiny. See King, supra, at 232; Pickup, supra, at 1253–1256; Moore–King, supra, at 569.

But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.”
Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371-72 (2018)

What Judge Shubb did was held that special rules apply to physicians’ speech “within the confines of the professional relationship,” a rule which the Supreme Court said it has not recognized. But for some reason, Judge Shubb has. I don’t think it will stand. I think the 9th Circuit is going to find that information and recommendations about Covid which are not consistent with the mainstream Covid narrative is protected by the First Amendment.

And once the appellate court finds that the speech sought to be protected (information and recommendations which are not consistent with the mainstream Covid narrative) is fully protected, meaning strict scrutiny applies, the rest of his decision will melt away like an errant snowstorm in Waikiki Beach.

There’s more to Judge Shubb’s decision, and some technical issues which have to addressed but as I said, if, as I expect, the appellate court will find that the lawsuit involves protected speech, it is a completely different analysis in which the state has all the burdens, and the record in the case would not allow a court to deny preliminary or permanent injunctive relief, in my view anyway.

I hope to straighten this out in the next couple of months, but we’ll see.

Action item for California physician based on Judge Shubb’s decision: You should be very careful about what you say to patients on Covid matters, at least for the time being.

That’s about it for now.

Rick Jaffe, Esq.