Today, November 24, 2024, we filed for cert at the Supreme Court in Stockton v. Brown, seeking to overturn the Ninth Circuit’s refusal to declare unconstitutional the Washington Medical Commission’s enforcement policy sactioning phsyicians for alleged Covid Misinformation. This, despite the fact that the day before, the Washington Appellate court did that very thing, making the 9th’s decision DEAD ON ARRIVAL!

Can state medical boards punish physicians for their public speech on matters of public concern? This shouldn’t be controvefrsial because 80 years of Supreme Court and appellate court judicial learning is a resounding “Hell no!”

The Setup: The Washington Medical Commission Goes Full Thought Police

In July 2021, the Federation of State Medical Boards issued a press release recommending that state medical boards sanction physicians for spreading “COVID-19 misinformation.” Medical boards across the country—including Washington’s adopted this template wholesale.

The Washington Medical Commission jumped on board in September 2021 after a half-hour meeting. No deliberation about less restrictive alternatives. No consideration of First Amendment concerns. Just: doctors who say things we don’t like about COVID are subject to discipline.

We know the filed charges for Covid misinformation to the public against ten physicians. How many they investigated. We don;t know yet.

Dr. Richard Eggleston, a retired ophthalmologist was prosecuted for opinion columns he wrote in the Lewiston Tribune questioning COVID policies

Dr. Thomas Siler, a retired physician charged for blog posts on AmericanThinker.com about vaccine safety and CDC recommendations

Dr. Daniel Moynihan, a retired family doc who’s been investigated, is on the Commission’s “radar screen,” and has self-censored rather than risk his license.

John Stockton, (yes that John Stockton), who hosts a podcast and is a pal of “Doc” (Eggleston) and has hosted him on his podcast, reads his work, and actively disseminates it.

Children’s Health Defense, with 2,000 Washington members who want to hear what these doctors have to say.

This is soapbox speech—doctors speaking to the public as citizens, not prescribing treatments to patients. The Commission doesn’t dispute that. They’re going after editorials and blog posts, in America!

September 16, 2025: Washington State Court Says the Policy is Unconstitutional

In Wilkinson v. Washington Medical Commission, the Washington Court of Appeals ruled that this exact policy violates the First Amendment. The court held that Protecting the public from false speech is not a compelling government purpose.
The state has no legitimate interest in regulating physician speech outside the physician-patient relationship.

That’s binding Washington law unless and until the state supreme court reverses it.

September 17, 2025: Ninth Circuit Says… We Can’t Reach the Merits

The very next day—literally 24 hours later—the Ninth Circuit affirmed dismissal of our case. Not on the merits. On abstention.

The court said federal courts must defer to state disciplinary proceedings under Younger v. Harris because those proceedings serve an “important state interest” in regulating medical practice.

Read that again: The state’s own courts just declared the policy unconstitutional, but the Ninth Circuit says federal courts must defer to state enforcement of that same policy because it serves an “important state interest” (an unconstitutional imporant state interest? Now that’s a new one for the books, but I don’t thihk it’s going to be on the books for long Becasue of Wilkinson, the panel’s Stockon’s opinion was dead on arrival, or so we are arguing to the Supreme Court,

The Younger Abstention Problem

Younger v. Harris says federal courts should abstain from interfering with ongoing state proceedings that serve important state interests. It’s based on comity and federalism—respecting the states’ processes.

Fine. But Wilkinson eliminated the state interest. The state’s own judiciary held the policy violates the First Amendment. There’s nothing left to defer to. There is nothing left for the Commission to try because, citing federal constitutional law, it held that even false public speech is protected by the First Amendment. (And we’re not saying that the speech involved was false, but even if it was….)

The Ninth Circuit framed the state interest at maximum abstraction: “regulating the practice of medicine.” But this case isn’t about medical practice. It’s about newspaper op-eds and blog posts. Washington law defines “health care” as care provided to a patient—which excludes public speech entirely.

The specific state interest here is in enforcing a policy Wilkinson declared unconstitutional. Game, set, match.

Standing, Ripeness, and Other Procedural Roadblocks

The Ninth Circuit also dismissed Dr. Moynihan, John Stockton, and CHD on standing and ripeness grounds, saying Dr. Moynihan hadn’t specified what he wanted to say and that the listeners lacked a “concrete, specific connection” to suppressed speech.

This ignored the record. Dr. Moynihan’s sworn declaration said he wants to tell the public:

COVID vaccines are not “safe and effective” for the general population
Boosters are unnecessary and potentially dangerous, especially for children
Off-label treatments like Ivermectin and hydroxychloroquine are effective
He’s already received a complaint. He’s on the Commission’s radar. He’s watched them prosecute Drs. Eggleston and Siler for similar speech. And he’s self-censoring as a result.

Contrary to the Ninth’s finding, that’s a concrete, imminent threat.

As for listener standing: Stockton has hosted Dr. Eggleston on his podcast and regularly disseminates his work. CHD’s organizational member is Dr. Moynihan himself—not some hypothetical outside speaker. And CHD identifies the specific speakers (Eggleston, Siler, Moynihan) and specific content (40 pages of dissenting COVID views documented in the record) its members seek to receive.

The Supreme Court has recognized listener standing for decades. The Ninth Circuit ignored it.

The Trilogy: Chiles, Kory, and Stockton

This petition complements two other cases pending at the Supreme Court:

Chiles v. Salazar (argued October 7, 2025) — Can states regulate what therapists say to clients during counseling sessions? There the speech was the treatment. That’s the kind of speech for which the state might have the strongest case to regulate, but it all goes downhill for them from Chiles

Kory v. Bonta (cert pending) (Yes mega doc hero Pierre Kory) Pierre’s cases asks, can states regulate what physicians say to patients about health matters, information, and recommendations but no treatment or prescriptions?

Stockton v. Brown (this case) — Can states punish physicians for their public speech to the general public? (It’s almost crazy that one district court judge and 5 appellate court judges said they can or refused to render the obvious opinion.)

Together, these three cases form a complete trilogy covering all categories of professional speech. It is our hope and expectation that the Court will decide all three to properly define where—if anywhere—professional licensure allows government control over speech.

What We’re Asking For

Reverse the Ninth Circuit’s abstention ruling — Wilkinson eliminated any state interest supporting Younger abstention
Recognize that Drs. Eggleston and Siler have standing — They’re being prosecuted under an unconstitutional policy
Grant them a preliminary injunction — The policy fails strict scrutiny, violates the First Amendment, and causes irreparable harm
Recognize standing for Dr. Moynihan, Stockton, and CHD — Pre-enforcement and listener standing are well-established doctrines
Provide nationwide guidance — Medical boards across the country adopted misinformation policies based on the same 2021 FSMB template

So to recap: (and I love just saying it over and over)

The state court says the policy is unconstitutional. The federal court says it can’t rule because it must defer to state proceedings which is violating doctors’ First Amendment rights by enforcing that unconstitutional policy. The doctors keep getting prosecuted. The public keeps getting denied access to dissenting medical views.

And here’s what makes it worse: If the Federation and medical board’s like Washington’s get away with it. It’s open season for doctors who question gender-affirming care protocols, psychiatric drug prescribing, vaccine schedules—you name it. The template is simple: Label dissent as “misinformation,” threaten licenses, chill speech sanction doctors for speaking out in public.

If the Supreme Court doesn’t step in, every controversial medical topic becomes fair game for government censorship—as long as the censors control the professional licenses.

I’ve been doing this for 40 years. I’ve seen medical boards overreach. But I’ve never seen them openly punish doctors for newspaper op-eds, and then watch as federal courts refuse to even address whether that’s constitutional.

The Washington Court of Appeals saw through it. The Ninth Circuit wouldn’t even look.

So now we’re asking the Supreme Court: When a state’s own courts declare a censorship policy unconstitutional, can federal courts really “defer” to ongoing enforcement of that declared unconstitutional policy?

The answer should be obvious. This should be 9-0

We’ll see if the nine agree.

Rick Jaffe, Esq.

Here is the cert petition:20251120132158509_STOCKTON_Petition for a Writ of Certiorari (1)