On Monday, May 4, the Supreme Court denied cert in Stockton v. Brown. No dissent. The mainstream coverage missed most of the story.

A week before the Supreme Court conferenced the case in mid-April, the Washington Medical Commission withdrew the Statements of Charges against the two named physician petitioners, Drs. Richard Eggleston and Thomas Siler. On April 13, the Washington Solicitor General’s office filed a Rule 15.8 letter advising the Court of the withdrawals and representing that the Commission “intends to follow the law.” Withdrawal of those charges was the practical goal of the federal civil rights case that grew into this cert petition. Once the Commission folded, the medical board lawyer in me was happy with the W.

The First Amendment lawyer in me has a different reaction. The cert denial was surprising and bitterly disappointing. Between Chiles v. Salazar, decided March 31, and First Choice Women’s Resource Centers v. Davenport, decided in late April, the Supreme Court abrogated the holdings of both the Ninth Circuit’s affirmance and the district court’s order in our case.

Mainstream reporting on the Stockton cert denial missed this. Chiles held that even viewpoint speech to patients which is treatment is fully First Amendment protected, meaning that strict scrutiny applies. Stockton involved the public speech of physicians, which all legal authority and scholars think is the most protected part of professional speech.

First Choice held that pre-enforcement First Amendment challenges to state regulators belong in federal court. Both rulings cut directly against the legal foundation of the lower-court rulings in Stockton. After Chiles and First Choice, the reasoning in those Stockton rulings is no longer good law, even though the orders technically remain on the books.

It would have been cleaner to see the Court apply Chiles and First Choice to Stockton through a grant, vacate, and remand. But the case went up on the Supremes on a couple threshold issues, a tactical move by the Ninth Circuit because there was no legitimate First Amendment defense to the Commission’s policy of sanctioning or even threatening physicians for their public speech. I can sort of understand why the Court didn’t grant cert, vacate the lower courts’ decision, and remand. And as stated, the Commission gave up and withdrew the charges, which at least raises the mootness issue.

What comes next?

There are no next steps in Stockton as a litigation matter. The case is over.

The doctors have remedies, though. Drs. Eggleston and Siler have a §1983 civil rights claim against the individual Washington Medical Commission employees who pursued these charges. States have sovereign immunity, individuals violating the Constitution do not, although those individuals are protected by qualified immunity. We are going to be kicking that one around. It might turn into something even bigger, bringing into court the parties responsible for the entire COVID misinformation affront to the Constitution. I’ll update if and when.

My other physician speech case is still in play. The Supreme Court denied cert in Kory v. Bonta on April 20. That case went up on the Ninth Circuit’s affirmance of the denial of our preliminary injunction, also largely on threshold issues per the Ninth Circuit’s playbook. Kory was on the shadow docket. There has been no final judgment on the merits, and a cert denial on a PI appeal is not a ruling on the merits.

Chiles and First Choice abrogated both Judge Shubb’s ruling and the Ninth Circuit’s affirmance in Kory, or so we will argue. We intend to renew the preliminary injunction motion before Judge Shubb and move for perhaps move for permanent injunction and final judgment on a strict scrutiny record. Judge Shubb knows how to do strict scrutiny. He did it in Welch v. Brown before the Ninth Circuit reversed him on circuit precedent that Chiles has now vindicated. We will also seek attorneys’ fees.

The short version: The mainstream press wrote Stockton’s obituary this week. The obituary was premature and missed the real story.

The doctors being prosecuted by the state beat the state down. No sanction, no hearing, just three years of litigation with the state withdrawing their ill-conceived unconstitutional actions and then begging the Supreme Court not to get involved, saying that they learned their lesson. I’ll take it. And we’re not done.

—Rick Jaffe, Esq.