Here’s the short of the case: We filed in Washington state federal court to stop the Washington Medical Commission from investigating and sanctioning physicians for speaking out against the mainstream Covid narrative. We claimed the right of physicians to speak out in public, and also the right of individuals like lead Plaintiff/basketball legend John Stockton to hear the speech of physicians like his friend and his podcast guest, Richard Eggleston MD, who is currently being prosecuted by the Commission.

The Commission is seeking to sanction Doc. Eggleston him for “moral turpitude” for writing (among other things) in his opinion pieces in the Lewiston Tribune back in the summer of 2021 that the Covid shots would only provide temporary and wanning benefits, and that they wouldn’t stop infection or transmissions. The Commission called such opinions “Covid misinformation.” And they are still prosecuting him for say what everyone now knows to be true! If there is a better modern example of Schopenhauer’s adage, I don’t know it. (“All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self evident”)

This case seemed like a no-brainer. Who thinks that the government can stop people from expressing their views about public health in public? Well the Medical Commission for one, based on the Federation of State Medical Board’s couple paragraph press release back in July 2021, being another, and being the instigator of the Commission’s censorship program.

And the third being the Washington district court which denied our preliminary injunction and dismissed the case on several threshold issues. We appealed to the 9th circuit, and that appeal is still pending. However, we also filed for an injunction in the 9th Circuit. That motion was denied by two judges, without a detailed explanation, and they told us to continue with the appeal. So that’s four and five.

We didn’t like that result, so we filed an application for an injunction in the Supreme Court. They way it works is that each Justice is responsible for one circuit, and Justice Kagan covers the 9th. She has publicly come out against these kinds of motions aka the “shadow docket” which by-passes the full appellate procedure. We asked that she circulate the application to the rest of the court.

On Wednesday, we were informed that she denied the application on her own. So that’s the forth judge that wasn’t completely outraged by what the Commission is doing, but in fairness to us, we still have had only one full substantive opinion, that being from the district court.

But frankly, we just can’t give up giving some judge or justice the opportunity to express immediate outrage for what the Commission and the Federation are doing. So we’re giving it one more shot at the Supremes.

Under the Supreme Court rules, after an individual justice denies an application, the applicant has the right to submit the application to any other justice. However, the practice is “disfavored.”

Still, this is any important case with national implications. So we decided to resubmit the application to Justice Thomas, who has a history of strong advocacy for the First Amendment. It’s still a super long shot because of the above procedural posture of the case, but like I said, it’s an important case. And that is exactly what we did today!

There are two jurisprudential facts that might help us out. First, there is a split in the circuits on a related professional speech issue. More importantly, we think the 9th Circuit has taken an overly narrow interpretation of the Supreme Court’s rejection of the so-called “professional speech doctrine” (by which the First Amendment supposedly does not apply to professionals who are licensed by the state). We think this would be the perfect opportunity for the Supreme Court to remind the circuit courts that the states cannot regulate the public viewpoint speech of physicians just because they have a license, even in pandemic times. As our co-counsel, RFK Jr (and Justice Gorsuch) frequently say, the Constitution is meant to apply in tough times.

We should know pretty quickly about this Hail Mary. Like I said, we’re leaving no stone unturned.

Rick Jaffe, Esq.