On Monday afternoon, we had oral argument in Pierre Kory et al. v. Rob Bonta et al, our second Covid misinformation case before Eastern District Court Judge William B. Shubb. If you have been following the case in my blog or in CHD’s The Defender, you are familiar with the journey, and it has been a tough slog.

Last evening, August 5th, Judge Shubb enjoined the Medical Board of California and the Osteopathic Medical Board from investigating, prosecuting, accusing, or sanctioning Dr. Pierre Kory, Dr. Le Trinh Hoang, and Dr. Brian Tyson based on the viewpoint of the information, recommendations, or advice they give a patient about COVID-19, including their departure from the position of the public health authorities.

While the order technically only applies to our three doctor plaintiffs, it puts the boards on notice that a federal judge has found their Covid misinformation policy unconstitutional under the First Amendment. Every investigator and every board member now knows how this judge sees it. Anyone board employee who opens or continues a Covid misinformation investigation from here on is doing it with a federal injunction and a federal ruling on the record, and with no ability to say later that nobody told them.

This has taken two and a half years, three courts, four rounds of opposition, and one Supreme Court decision that had nothing to do with COVID.

How we got here

Start in 2022, when California passed AB 2098. It made it unprofessional conduct for a physician to disseminate “misinformation” about COVID-19 that departed from “contemporary scientific consensus” and “the standard of care.” We challenged it. In January 2023, Judge Shubb enjoined it in Høeg v. Newsom, 652 F. Supp. 3d 1172, holding the statute unconstitutionally vague under the Fourteenth Amendment. He noted the law “clearly implicates First Amendment concerns” and then declined to reach them, which is what careful judges do when an easier ground is available.

The Legislature repealed AB 2098 effective October 1, 2023. Everyone declared victory and went home.

They should not have. AB 2098 was never the only track. In July 2021, the Federation of State Medical Boards issued a statement announcing that physicians who spread COVID misinformation risk suspension or revocation of their licenses, on the theory that a medical license confers a powerful platform in society. In February 2022, at a noticed public meeting, the President of the Medical Board of California read that position into the Board’s own minutes and called it the duty of the board to investigate Covid misinformation.

No rulemaking. No promulgated regulation. No definitions. Just the Board president threatening every doctor in the state.

And then the Board used it. On June 23, 2023, while AB 2098 was still on the books and enjoined as to our clients, the Board filed an Accusation against Dr. Ana Reyna. It charged her under Business and Professions Code section 2234, subdivisions (b) and (c), the general negligence provisions, for four statements: that masks do not stop viruses, that the COVID vaccines are gene therapy, that they are produced with aborted fetal cells, and that she encouraged veterinary ivermectin. The Accusation says that by making one or more of those statements, she committed an extreme departure from the standard of care by providing advice about COVID-19 that was not accurate.

Not by injuring anyone. By being inaccurate.

Dr. Reyna surrendered her license. The stipulation provides that on any petition for reinstatement, every allegation is deemed true, correct, and admitted.

It has taken a bit

We filed Kory v. Bonta on January 2, 2024. Judge Shubb denied a preliminary injunction that April. His reasoning was textual: section 2234 uses the words “unprofessional conduct” and “act or omission,” so it “clearly contemplates disciplinary action for conduct, not speech.” Rational basis, easily satisfied. On the as-applied claim, no standing, because the record was “utterly devoid” of evidence the Boards would use the statute for anything but conduct.

The Ninth Circuit affirmed in November 2024 in an unpublished memorandum, citing Tingley v. Ferguson twice. Judge Callahan concurred separately to say she believed the plaintiffs did have standing, and that they simply had not shown likelihood of success at that stage.

We took the case to the Supreme Court twice. First on an application for a stay. Justice Kagan denied that. Then we filed a petition for certiorari in February 2025. The petition was considered by the Court on June 18, 2025. Usually, cert petitions are decided at conference, and the decisions are posted the following Monday. But all we got was silence: the first Monday after the conference, the second, and every Monday after that. The term ended and there was still nothing. Ten months of silence, across two terms, before we had an answer.

The reason for the hold was that a couple of months before Kory was considered, the Court granted certiorari in Chiles v. Salazar, a challenge to Colorado’s ban on conversion therapy as applied to a licensed counselor’s talk therapy. There was a split in the circuits on professional speech. The Ninth and Tenth Circuits held that speech which was treatment is unprotected. The Eleventh Circuit held that it was protected. Judge Shubb had denied our injunction based on the Ninth’s view that all speech to a patient is part of patient care and unprotected. That view conflicted with a 2018 Supreme Court decision, but the Ninth tried to limit that decision to its facts, a common technique courts use to disregard seemingly binding Supreme Court authority.

On March 31, 2026, the Supreme Court decided *Chiles, 8 to 1. Justice Gorsuch wrote that the First Amendment is no word game, and that a state cannot avoid scrutiny by relabeling speech as treatment. The Court rejected the argument that discrete traditions of professional regulation can be aggregated into a broader category of lesser-protected speech. And it wrote the sentence that decides cases like this one: a prevailing standard of care may reflect what most practitioners believe today, but it cannot mark the outer boundary of what they may say tomorrow.

Justice Jackson dissented alone, arguing that bedrock First Amendment principles have far less salience when the speaker holds a professional license. That is the position the State of California advanced in our case, and it lost eight to one.

Three weeks later the Court denied our petition for certiorari. That was the right call procedurally. There was no judgment to vacate, and the case was coming back to Judge Shubb anyway. But it was a bitter pill for me personally.

The renewed motion

We filed a renewed motion for a Preliminary Injunction on June 29, 2026, arguing that Chiles removed the conduct premise underlying both prior rulings, and that First Choice Women’s Resource Centers v. Davenport, decided in April 2026, established that a governmental threat aimed at protected speech is an injury which hangs like a sword of Damocles is enough to satisfy standing.

The State’s opposition ran twelve pages. It bet the farm on the threshold standing issue and on Judge Shubb’s prior decision and the Ninth Circuit’s affirmance of him. But those decisions had been abrogated by Chiles and First Choice or so we argued.

I’ll share one exchange that you might enjoy. During the hearing in the Hoang/Hoeg PI hearing back in January 2023, the first thing Judge Shubb said to the AG was ‘First Fauci said don’t wear a mask, then he said wear two masks so how can there be a scientific consensus?’ I asked him if he remembered that. He said he did. I then asked him if he was aware of the Senator Paul’s recent hearing with Fauci. He said he was. then I said, ‘to update what you said in the Hoang/Hoeg case, now all Fauci is saying is I plead the Fifth.’ Perhaps a bit snide, but I felt it fit the moment.

Rick Jaffe, Esq.

Here is the order:

Docket Text:
MEMORANDUM and ORDER signed by Senior
Judge William B. Shubb on 08/05/26 GRANTING [49] Renewed Motion for Preliminary
Injunction AS TO PHYSICIAN PLAINTIFFS (Dr. Pierre Kory, Dr. Le Trinh Hoang,
and Dr. Brian Tyson) ONLY. Pending a final determination on the merits of
this action, defendants Attorney General Rob Bonta, Reji Varghese, Executive
Director of the Medical Board of California, and Erika Calderon, Executive
Officer of the Osteopathic Medical Board of California, and their officers,
agents, employees, and all persons in active concert or participation with
them who receive actual notice of this order, are hereby enjoined from investigating,
prosecuting, accusing, or sanctioning Physician Plaintiffs (Dr. Pierre Kory,
Dr. Le Trinh Hoang, or Dr. Brian Tyson) based on the viewpoint of the information,
recommendations, or advice they give a patient about COVID-19, including
a their departure from the position of the public health authorities. This
injunction does not prevent the Boards from investigating, prosecuting, or
disciplining Physician Plaintiffs, or anyone else, for fraud, for actual
negligent treatment, for prescribing violations, for a genuine failure of
informed consent as to a material risk or a reasonable alternative to treatment,
or for other conduct independently regulable without reference to their viewpoints
on COVID-19. The Boards may not recharacterize as an informed-consent violation
or a standard-of-care departure any refusal by a Physician Plaintiff to convey
the government’s position on a contested question concerning COVID-19.
(Deputy Clerk KML)

Here is the memorandum

Kory Opinion