The Supreme Court denied our cert petition in Kory v. Bonta on Monday, April 20, 2026. It would have been nice to get a cert grant and a reversal, but we didn’t need it.

Recall the procedural posture

This case was on the shadow docket. There has been no final judgment on the merits. We moved for a preliminary injunction in the Eastern District of California. Judge Shubb denied it. The Ninth Circuit affirmed, and we took a cert petition from that affirmance. The Supreme Court’s shadow docket has taken plenty of criticism in recent years, and the Court generally disfavors taking cases in that posture. A denial of cert on a preliminary-injunction appeal is not a ruling on the merits. It is the Court declining to intervene before the district court has finished its work.

Chiles v. Salazar, decided March 31 by a vote of 8-1, gave us everything we need to make our case on a renewed motion. The Court held that speech which is itself a treatment gets full First Amendment protection and strict scrutiny review. That holding abrogates the basis on which Judge Shubb denied our preliminary injunction, and the basis on which the Ninth Circuit affirmed. Shubb treated physician speech to patients as regulable professional conduct subject to rational-basis review. The Ninth Circuit adopted the same framework in a cursory passage and used it to deny standing under ordinary standing doctrine rather than the relaxed First Amendment standing that now applies. Neither rationale survives Chiles.

What comes next

I intend to renew the preliminary injunction motion before Judge Shubb and move for a permanent injunction and final judgment on a strict scrutiny record. The judge knows how to do strict scrutiny. He did it in Welch v. Brown, where he applied United States v. Playboy Entertainment Group and Brown v. Entertainment Merchants Association and found the state had not carried its burden. The Ninth Circuit reversed, the Supreme Court denied cert, and now Chiles has vindicated the analytical framework he used in the first place.

Strict scrutiny under Playboy and Brown asks what the government considered when it adopted the challenged policy. Not what its lawyers can argue after-the-fact in litigation. When the Medical Board adopted the COVID misinformation enforcement policy in February 2022, there is no indication in the record that it considered any alternatives at all. The declarations the Board submitted from its executive directors are silent on the point. That is a heavy burden the record cannot support.

The Board can move to dismiss on standing, or argue it meets strict scrutiny, or whatever else it wants to argue. Legal fees are accruing on both sides. The sensible result, and the one both parties should be asking the court to reach, is a ruling that either grants the permanent injunction or kicks the case. Judge Shubb has seen enough paperwork on this one. He handled Hoeg v Newsom and our related case Hoang v Bonta (where he granted a preliminary injunction against AB 2098 the same Covid misinformation policy dressed up in a specific statute. (Saying this brings to mind the phrase “lipstick on a pig” (with no offense intended to pigs). Shubb has more experience on these issues than any other judge in the country I think. Although Chiles abrogated his Kory decision,Chiles, showed that his instincts and the result he came to in Welch was correct. A belated good on him.

So, that’s the plan.
Stay Tuned.

Rick Jaffe, Esq.