Browsed by
Category: Uncategorized

To All California Physicians: Watch out for Scammers Claiming to Be DEA Agents and Demanding $25k

To All California Physicians: Watch out for Scammers Claiming to Be DEA Agents and Demanding $25k

As if physicians didn’t have enough to worry about, apparently there is a scam being being run on California physicians. They are getting a call from someone claiming to be a DEA agent stating that the physician is under investigation. The caller requests a $25,000 bond, maybe to make the investigation go away.

Here is what the Medical Board of California says about it:

“Fake DEA Agents Extortion Scam
The Medical Board of California (Board) has learned that scam artists posing as U.S. Drug Enforcement Administration (DEA) agents or Board staff are calling California physicians as part of an extortion scheme. The scammers identify themselves as DEA agents or Board staff calling about ongoing investigations regarding their license issued by the Medical Board of California (Board). The scammers tell victims their license may be suspended for illegal drug trafficking and the suspension means they will not be able to practice. The scammers may provide an “Agreement for the Bond and Protocols” that includes statements that licensees are not to share or disclose the investigation to any third party and agree to a bond fee payment of $25,000.00. The scammers’ phone number may show up as the Board’s toll-free number (800) 633-2322.

No DEA agent or Board staff will ever contact physicians by telephone to demand money or any other form of payment. If you receive a call such as the one described, refuse the demand for payment. Please also conisder the following:

If the caller is stating they are from the DEA, immediately report the threat using the DEA’s Extortion Scam Online Reporting form.
If the individual identifies themselves as a Board employee, please contact the Board at 1-800-633-2322 or send an email to webmaster@mbc.ca.gov.
If the phone number of the caller appears to be the Board’s toll-free number, it is recommended that you submit an online complaint with the Federal Communications Commission (FCC) using the FCC’s Consumer Complaint form or contact the Board so it can provide this information to the FCC.”

http://www.mbc.ca.gov/News/Fake_DEA_Agents.aspx

Don’t be fooled!

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Major Update on the Stoller Case: New Defendants Added and New Claims Made

Major Update on the Stoller Case: New Defendants Added and New Claims Made

Here is the update on the gogetfunding website:

https://gogetfunding.com/blog-single-update/?blogpre=6112639&single=39663

Here is a pdf of the amended complaint. (The beginning is mostly the same as the original)

Amended Complaintfiled

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

So, You Just Received a Certified Letter from the Cali. Medical Board Asking you to Sign a Release for your Child’s Medical Records. What are your Options?

So, You Just Received a Certified Letter from the Cali. Medical Board Asking you to Sign a Release for your Child’s Medical Records. What are your Options?

Social Media is abuzz with posts from parents who have received a certified letter from the Medical Board of California demanding that they sign an enclosed release which authorizes their child’s physician to release his/her medical records to the Board.

What should you do?

Actually, for a variety of reasons, I am not going to tell you what to do or give you legal advice of any kind. What I am going to do is lay out a decision tree providing you with some information which may help you decide.

FYI: As I’ve explained in a recent post, California may be the only state in which its medical board cannot automatically obtain patient medical records from a physician. Here is that post: http://rickjaffeesq.com/2019/07/05/can-the-cali-medical-board-obtain-your-childs-medical-records-without-your-consent/

That means the California Medical Board has to first ask the patient’s permission to obtain the records. Most of the time, that isn’t an issue, since many Board investigations are started by a patient complaint, so the patient is obviously willing to have the Board review his/her medical records. But if someone other than the patient complains, well then it becomes an issue. In vaccine exemption Board investigations, the complaints almost never come from the patients, but rather from school nurses or the child’s PCP, most often an HMO.

So, in these cases, the Board is obligated ask the family for a waiver/permission to obtain your child’s medical records. The letter mentions subpoenas and legal process. These letters are meant to intimate you but are vague enough so as not to make a direct threat against you. All with an eye to maximize the chance that the family will comply and send back the release/waiver.

Here is how you should analyze the letter.

You have two options:

Option 1: sign the release and send it back to the Board.
The Board will send the release to the physician, and the physician will be obligated to send the medical records to the Board. The records will be reviewed by a medical consultant. If the care involves, let’s say, a medical vaccine exemption beyond the CDC contraindications, (or to make it even more simple, if it is a permanent exemption from all childhood vaccines), the medical consultant will conclude that the exemption was not within the standard of care. Eventually, the doctor will be charged with a Board violation.

Option 2: Do nothing.
If you do nothing, for sure in a few weeks to a month or two, you will receive the same letter again. If you continue to do nothing, then either 1. That will be the end of it, or 2. It’s possible, that you might get a visit from a board investigator who will you ask you in person to sign the form. (I suppose another option would be to write back and say you don’t agree to release the records, which may or may not avoid an Board investigator’s visit)

You have two choices:

Choice 1: Sign the form

Choice 2: Tell the investigator that you’re not going to sign and politely ask him to leave. If you do, he/she will indicate in the most authoritative/mildly intimidating tone that he/she is going to have to subpoena the records from your child’s physician.

You have two possible responses:

Response 1: Sign the release

Response 2: Tell him you’re still not going to sign, and again politely tell him to leave.

What happens to you if you chose Response 2?

NOTHING. You do not have the medical records he/she seeks, so there is nothing the Board can do to you or your family.

In short, you are NOT legally obligated to sign the waiver to release your child’s medical records, and there will be no consequences to you if you refuse to do so.

What happens to my child’s physician if I do not sign the waiver?

The board will serve your child’s physician with a subpoena for the records. The physician may or may not comply. If you do not want your physician to comply, after you receive the letter from the Board, inform your doctor about the request and tell him that you do not agree to have your child’s medical records released to the Board.

At some point, the Board will go to court to compel the physician to turn over the records. Candidly, there is a very good chance that the court will side with the Board.

But that’s not your problem and is not necessarily directly relevant to your options and decision as to what you should do if you receive that Board letter.

So, there you have it. Hope it helps.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

San Francisco City Attorney Event Starts Soon; Here is the Updated Contact Information

San Francisco City Attorney Event Starts Soon; Here is the Updated Contact Information

The event starts soon:

Call the City Attorney’s main number

415-554-4700

or TTY 415-554-6770

or fax: 415-554-4715

or email him at cityattorney@SFcityatty.org

Corrected Stoller Complaint

Corrected Stoller Complaint

Per my previous post, the complaint had a couple misplaced decimal points and the wrong antonym in a sentence. I fixed it and some folks wanted the corrected version to drop-off to their Assembly person, which I’ve said is a very excellent idea.

Here is the corrected version, and it even the official case number.

correctedcomplaint

Go and spread the word to the Assembly folk that unvaccinated kids are not the primary vectors of the measles problem in, at the very least, the San Francisco Bay area, and that when it is all laid out like it is in the Stoller complaint, it’s clear that Senator Pan et al are just trying to pull another fast one, and finish what they couldn’t get done with SB 277.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Rally Day for Cali SB 276: Keep your eye on the ball!

Rally Day for Cali SB 276: Keep your eye on the ball!

Today, April 24th is hearing day on SB 276, which bill seeks to remove the medical exemption decision making from the physician, and places it in the hands of public health officials, and there’s no requirement in the bill that it be a physician. That seems like a bad idea to me.

On the other hand, I wouldn’t mind seeing some guidelines issued by the Medical Board, similar to the medical marijuana guidelines the board issued after California allowed physicians to recommend medical marijuana. A number of docs got into trouble prior to the issuance of those guidelines, because they had no guidance as to what was permissible until the guidelines or at least until the board issued what it called a “precedential decision.”

The same thing is happening with the doctors who are currently writing vaccine exemptions. I was involved in what is so far the only filed case on a vaccine exlusion, and had a chance to get a look at what the board via its experts think about these cases. They take a very strict view of exemptions under the statutes, basically, there are none, at least there are no complete medical exemptions from all childhood vaccination throughout the duration of childhood for otherwise healthy kids.

I’m also working on some active board investigations involving exemption writing physicians. My sense is that some physicians and their supporters have a completely different view of what is permissible exemption-wise, than all conventional medical authorities. The result of these differences is the reason you’ll be in Sacramento today. But keep in mind a couple things:

First: keep your eye on the ball and focus on the actual issue:

Here’s what today is NOT about, at least from the legislators’ point of view:

It’s not about your personal freedom, your right to refuse vaccines for your children because you think vaccines don’t work or are dangerous, or because of any other personal beliefs you or your vaccine concerned friends might have.
Folks, you lost that battle with the enactment of SB 277, and all the failed lawsuits challenging the law.

It might feel good to try to beat a dead horse, but it won’t revive it.

Today is about convincing the legislators that only physicians who have a doctor/patient relationship should be permitted to make a decision as important as which if any vaccines from which a specific child should be exempted.
THAT’S IT!

If the board has concerns about doctors not following what it might call the standard of care, it has two obvious options; Investigate the physicians, and they are doing that now, and promulgate some guidelines, hopefully with the input of the vaccine concerned community (admittedly perhaps naïve),

However, California law does recognize the right of physicians to adhere to a minority view in medicine, because the California legislature wisely understood that it could take a long time for new thinking to change the medical paradigm. I think that’s a lesson which the legislators should remember.

Here’s what could set you free:

“Universal Citation: CA Bus & Prof Code § 2234.1 (through 2012 Leg Sess)

(a) A physician and surgeon shall not be subject to discipline pursuant to subdivision (b), (c), or (d) of Section 2234 solely on the basis that the treatment or advice he or she rendered to a patient is alternative or complementary medicine, including the treatment of persistent Lyme Disease, if that treatment or advice meets all of the following requirements:
(1) It is provided after informed consent and a good-faith prior examination of the patient, and medical indication exists for the treatment or advice, or it is provided for health or well-being.
(2) It is provided after the physician and surgeon has given the patient information concerning conventional treatment and describing the education, experience, and credentials of the physician and surgeon related to the alternative or complementary medicine that he or she practices.
(3) In the case of alternative or complementary medicine, it does not cause a delay in, or discourage traditional diagnosis of, a condition of the patient.
(4) It does not cause death or serious bodily injury to the patient.
(b) For purposes of this section, alternative or complementary medicine, means those health care methods of diagnosis, treatment, or healing that are not generally used but that provide a reasonable potential for therapeutic gain in a patient s medical condition that is not outweighed by the risk of the health care method.
(c) Since the National Institute of Medicine has reported that it can take up to 17 years for a new best practice to reach the average physician and surgeon, it is prudent to give attention to new developments not only in general medical care but in the actual treatment of specific diseases, particularly those that are not yet broadly recognized in California.
(Amended by Stats. 2005, Ch. 621, Sec. 28.5. Effective January 1, 2006.)”
(emphasis added).

It’s worth a shot!

Good Luck!

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Revised and Updated Breaking FDA News: Finally Some Action Against a Cord Blood Manufacturer & MORE TO COME SOON!

Revised and Updated Breaking FDA News: Finally Some Action Against a Cord Blood Manufacturer & MORE TO COME SOON!

For some reason, and for the life of me I can’t figure out what it is, up until now, the FDA has been extremely shy about confronting cord blood manufacturer/resellers. I can’t think of a single warning issued against these folks, even though they claim to their physician customers that their products are FDA exempt, which I have publicly doubted is the case. (See my post: http://rickjaffeesq.com/2019/02/08/is-cord-blood-um…-treatment-legal/

Per the NY Times today, that changed last Friday, and for those living under a rock, but with access to the internet, here is the NY Times article.
https://www.nytimes.com/2019/04/03/health/stem-cells-fda.html

Here is the actual warning letter sent to the company on Friday, March 29, 2019.
https://www.fda.gov/ICECI/EnforcementActions/WarningLetters/ucm635078.htm

Big surprise, the FDA takes the position the company’s umbilical cord stem cell product is an unapproved new drug, not an exempt or solely regulated under a Section 361 type HCT/P product, under 21 CFR 1271.10. Also, and again no surprise here, the manufacturing facility is not up to cGMP snuff.

If you read my stuff, you know what’s coming next procedurally: a response by the company in which they’ll claim they are exempt and a promise to endeavor to look into fixing some of the cGMP issues, dead time, FDA response that the compnay’s response to the warning letter is unsatisfactory. Maybe another response, then more dead time and thereafter, if the company still has the same name and location, an FDA injunction lawsuit.

If the FDA has performed inspections at other umbilical cord facilities, and there are a number of them out west, expect another warning letter or two.

What effect is that going to have on the doctors buying and using this and other company’s product?

In the short term, none, whatsoever.

Why? Think whack-a-mole, and some economic and market realities. The econmic realities are that cord blood products are typically cheaper or alot cheaper than the autologous fat/MSC/SVF surgical proceedures, and cheaper is more popluar obviously, since the entire market is cash/non insurance reimbursable. Second, less training and equirement outlays for the docs for injecting products manufactured by others. Even chiros and naturopaths are getting into the non-autologous market. Third, skyrocketing demand based on the ineffectiveness of current treatment for many othopedic and other conditions. When you combine all three, you’re going to need a whole lot of hammers to whack all these moles.

But at least I give the FDA credit for going after the manufacturers, or the discredit for interfering with people’s rights to get the treatment they want without government interference. It all depends on your perspective.

AND NOW FOR THE MORE TO COME!

In a statement released eariler today, April 3, 2019, the outgoing FDA Commissioner issued a public statement about this warning letter and 20 others that have recently been filed. These are not on the FDA’s web site, but I suspect they soon will be. We’ll see if it includes the usual cord blood suspects in the western part of the country or if it includes folks other than manufacturers.

Here is the commish’s public statement:
https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm635165.htm

Stay Tuned!

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

The Smartest Thing the Vaccine Concerned Have Done Recently (or maybe ever)

The Smartest Thing the Vaccine Concerned Have Done Recently (or maybe ever)

But first, the dumbest thing the VC do, IMO. I have been very critical of both the tactics and strategic decisions made by the Vaccine Concerned powers-that-be. For example, although I understand the emotions behind them, I think all the lawsuits challenging SB 277 were a waste of time and money.

No court is going to create a constitutional right to a personal belief exemption, or stop mandatory vaccination under the current medical vaccine paradigm.  (You all know and hate the paradigm/mantra: vaccines are safe and effective, serious side effects are rare, herd immunity is a thing and vital, and vaccines have saved zillions of lives.)

I think the VC community has it backwards by looking to the judiciary for protection. The judiciary basically enforces medical norms/paradigms, at least when it comes to public health and safety. Judges do not create rights that jeopardize public health according to the accepted state of medical knowledge.

In explaining why every single vaccine rights case has upheld mandatory vaccination and denied a right to a PBE, one of the most prominent thought leaders candidly stated at the recent Physicians for Informed Consent workshop that judges don’t want to make a decision which could cause an infectious disease outbreak. That sums up the futility of attempting to obtain any kind of vaccine relief from judges on direct challenges.

In my view, there are only two viable ways to move things in the VC’s direction. The first is legislation, but even that’s hard in light of the vaccine paradigm.

The good news for the VC is that most states still have either a PBE or a religious exemption. In Arizona, expanding vaccine concerned rights is on the legislative table.  The bad news is that there is a renewed effort afoot to eliminate the PBE (recently failed in Washington, still pending in Oregon) and a new concerted effort to eliminate negative vaccine information from the Internet is underway.

Obviously, the best way to change things wholesale is to change the vaccine paradigm.

Beginning last week something surfaced which I think is the smartest and most exciting development in the VC area, maybe ever. I think if played right, it could be the game-changer the community has been searching for.

Here is is:

Rock Star physician Paul Thomas announced on Rock Media Star Del Big Tree’s podcast last week that in response to an Oregon medical board investigation about his public vaccine position, he commissioned an outcome study on his patients.  So far, he’s focused on the rates of autism in his pediatric practice. He’s a popular guy and reports seeing 3345 pediatric patients.

Here are the numbers:

CDC published autism rates:    1 in 45

Autism rate in his signature “Vaccine Friendly Schedule               1 in  440

Autism rate in his complete unvaccinated patients

(actual numbers, not rate)             1 in 715

Here is the link to a U tube where Thomas discusses this.

That’s a dramatic difference, but of course, it’s only one pediatric practice.

I’m wondering what the autoimmune disease picture would show with the same stratification? I would speculate that if you take a historical graph of the explosive acceleration of autoimmune disease over the past few decades and plotted it against the graph showing the dramatic increase in the number of vaccines given in the last few decades, there would be a strong correlation. (Or maybe that’s already out there in the VC world.)

Of course, that proves nothing. But then if you take what we have learned over the past decade or so about SNPs/genetic polymorphisms and adjuvants, a causation hypothesis/mechanism of action starts to appear. But that’s just the speculations of a lawyer.

So, what’s needed to help change or challenge the current paradigm?

More data for sure.

Here is my suggestion to the VC thought leaders. Think by example or for strategic guidance, medical and recreational marijuana, and right to try, and for goal purposes, think cancer registries.

Look, it’s clear that the feds aren’t part of the initial solution. Indeed, based on all the conflict, collusion and outright fraud at these agencies, the feds seem to be at the heart of the problem. Same with the main professional organizations. So, they have to be bypassed.

Impossible you say?

Look at the marijuana situation. It’s still federally illegal, but the pot movement bypassed the feds and went right to the states. They are winning the legalization battle, state by state. The feds have largely been marginalized in the medical marijuana field.

Same thing with the right to try. I worked on federal right to try legislation back in the 90’s and got nowhere. (In fairness, we had no money and some were some other problems). In the last few years, the right-wing Goldwater Institute has engaged in a fabulously successful campaign to make right to try the law in most states. The feds came around with its own right to try law last year, but that was only after dozens of states already had the law on their books.

The point is bypassing the federal vaccine mafia in favor of individual states is a plausible and probably better strategy to start to change the vaccine paradigm.

How?

What if what the data Paul Thomas collated was required to be reported under state law? Suppose every pediatrician was required to register autism cases, severe autoimmune conditions and say vaccine status, and maybe even when each condition appeared in relation to vaccination. This is like what happens in state cancer registries, part of the reason for which is to identify cancer clusters. I think within a year or two, things might become much clearer on many fronts.

What if all the data was made public and you could look up a pediatrician’s autism and autoimmune disease rate? We are a society of consumers and consumers are entitled to as much information as possible to make an informed decision about their health care professionals. Why shouldn’t such information become a standard part of shopping for a pediatrician?

In addition, what I’ll call the “Thomas Gambit” should be employed by every pediatrician who comes under attack by a state board for vaccine beliefs or exemption activities. Also, I’m thinking it might be an interesting talking point, to demand that this information be collected and made public from the pro-vax pediatrician talking heads. Sort of a head-to-head comparision. Think there will be any takers?

Anyway, slick move Paul. Keep it up!

Rick Jaffe, Esq.

rickjaffeesquire@gmail.com

Is there a First Amendment right to share negative information/concerns about vaccines on Facebook?

Is there a First Amendment right to share negative information/concerns about vaccines on Facebook?

Whether you’re a hard core anti-vaxxer (and it seems no one claims to be one anymore), or have even the mildest concerns that some vaccines might be harming a small subset of people, it’s been tough times recently. The measles outbreaks in Washington, Oregon and New York have really stirred things up in both the public and private sectors.  

Congress has held hearings. Adam Schiff has even taken a day off from Trump-bashing to call on Amazon and social media to ban anti-vax content. (more about that later).  Amazon has responded by removing “anti-vax” movies from its web site. There is talk about removing books from on-line sales sites. Facebook just announced that it is implementing an anti-vax policy, as have other internet platforms. The soon-to-be former FDA commissioner has threatened unspecified federal action against states with low vaccination rates. See my post at:   http://rickjaffeesq.com/2019/02/20/fda-commish-talks-from-a-place-other-than-his-mouth-and-i-agree-with-richard-pan/

I’ve recently written about a case report in a medical journal which was removed because the columnist dared to suggest to clinicals that they consider whether presenting symptoms might be acute encephalitis associated with the HPV vaccine. Here is that post: http://rickjaffeesq.com/2019/02/28/real-time-censorship-of-case-report-on-hpv-vaccine-associated-with-adem/

 A filmmaker called me recently and told me his films have been removed from Amazon and there was only a peripheral connection to vaccines. He wanted to know what the community is going to do about it. That got me thinking about the obvious:

 Are we getting into First Amendment violation territory with all these actions?

I haven’t heard much of these kinds of issues reaching the courts, and a cursory search mostly confirmed that. But for grins, let’s work through the issue, starting with the where it all starts, the First Amendment:

Here are those magnificent but intentionally vague words:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” First Amendment of the U.S. Constitution passed by Congress September 25, 1789. Ratified December 15, 1791.

I found a good explanation of freedom of speech on the American Library Association’s web site. Here it is:

“The right to speak and the right to publish under the First Amendment has been interpreted widely to protect individuals and society from government attempts to suppress ideas and information, and to forbid government censorship of books, magazines, and newspapers as well as art, film, music and materials on the internet. The Supreme Court and other courts have held conclusively that there is a First Amendment right to receive information; the right to receive information is a corollary to the right to speak. Justice William Brennan elaborated on this point in 1965:

“The protection of the Bill of Rights goes beyond the specific guarantees to protect from Congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful. I think the right to receive publications is such a fundamental right. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.” Lamont v. Postmaster General, 381 U.S. 301 (1965).

When the Supreme Court considered whether a local school board violated the Constitution by removing books from a school library, it held that “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.”

But here is the really important point from this site:

The First Amendment only prevents government restrictions on speech, not restrictions imposed by private individuals or businesses. Mark Zuckerberg can restrict speech on Facebook because it is a private business and he is not the government, the action of private individuals.” 

Here is the page where this appears: http://www.ala.org/advocacy/intfreedom/censorship

 Let’s call this the general rule of First Amendment free speech law. It only applies to restrictive action taken by the government. But as we’ll see, the Library’s view might be alittle simplistic and might even be changing. Nonetheless, as a general rule it’s accurate. So, if Facebook, Amazon and the rest of E commerce and the Internet are viewed as private parties, the First Amendment wouldn’t prohibit their content censorship, at least under current jurisprudence.

In terms of government or state restrictions on speech, the courts generally look unfavorably on censorship or government regulation of content of protected speech. Maybe the government can regulate the time, place and manner of protected speech, but that’s about it, in terms of protected speech.

 What about unprotected speech? Well Duhh! It’s unprotected (by the First Amendment).

What kind of speech is unprotected? Libel, slander, false advertising, words meant to incite violence, child pornography, obscenity (hard to define, but as the Justice said, “I know it when I see it”), students advocating illegal drug use at a school event, and of course, yelling fire in a movie theater if there is no fire.  

Well, the cleverer ones are probably thinking, what if the government claims that anti-vax misinformation is like yelling fire in a movie theater when there is no fire? It’s just as dangerous isn’t it? Scarring people by disseminating false information about the dangers of vaccines which we know causes parents not to vaccinate their kids which leads to these horrible outbreaks, or so the argument might go. Seems like a good guess that’s coming if the government decides to step in. And frankly, it seems like a formitable argument, based on the current medical vaccine paradigm (but more about that another time).

But circling back to the main point of this post, namely whether private companies have to comply with the First Amendment or whether they can engage censorship, there might be some wiggle room based on a pending Supreme Court case.  

 What if a private company acts with a public license, like say a public access cable TV station? Can it engage in content-based discrimination/censorship? Does the grant of a public license in some sense make the company a “state actor” which would require it to comply with the First Amendment like the government must?  

That question will be answered by the Supreme Court this term in Manhattan Community Access Corp. v. Halleck, No. 17-1702, My intuition honed by 30 plus years of practice and my deep legal scholarship gives me some insight into the matter. OK, not really, but here is what Wikipedia says about the case:     

“While the case deals with speech limited by a public access television station, questioning whether the station was a state actor or a private entity, analysts expect the case will determine if private operators’ limitations on free speech on social media violate First Amendment rights.”

For those who want to get the details and the prior case law. Here is the URL.

https://en.wikipedia.org/wiki/Manhattan_Community_Access_Corp._v._Halleck

So, we might have some Supreme Court authority on the issue in a few months. (oral argument was two weeks ago).

Here’s another question: Suppose a government official tells Facebook or Amazon to engage in censorship? Is that enough for state action? Could that be a conspiracy? (I hate using that word in a vaccine post, but I mean it in a technical legal sense like in 21 USC 371). Probably not technically anyway, since legislators are generally cloaked with absolute immunity. (So, Adam, I think you’re probably OK, legally speaking. Now maybe go back to Trump bashing. You’re really good at it because you’re so measured and circumspect, which has to make it even more galling for our Dear Leader, but I digress.)   

What about search engines?

Can you sue them delisting companies or web sites?  You just know that’s coming as well.

That question was addressed in E ventures Worldwide v. Google. Google delisted the company because it thought the company was spamming. E ventures argued that it was kicked-off because Google didn’t want the competition from the company’s SEO activities.

The court held that Google’s action in removing the company from its search engine was covered by the same First Amendment privilege that attaches to a newspaper editor who decides which articles go on the front page and which are unworthy of publication.

Here is the URL for the decision.  https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2410&context=historical.

This is just the most recent example of a company not being able to sue Google for being delisted. Earlier decisions go back to the early 2000’s. Here is an earlier one.

http://blogs.reuters.com/alison-frankel/files/2014/03/Search-King-Inc-v-Google-Technology-Inc.pdf

So, search engines have a First Amendment right to publish or not publish what they want, even if it’s content censorship, But Facebook arguably can engage in content-based censorship because the First Amendment doesn’t prohibit such companies from doing so?? Hmm. Some might consider that odd, and possibly require some harmonization.   

And at some point (but not here), I’ll need to address some specific federal communications laws applicable to internet provides which might provide additional wrinkles. (For those who just can’t wait, look at the E ventures decision which addresses the issue.)

 https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2410&context=historical.

Does it feel like we’re on a merry-go-ground? Are you getting dizzy yet? Good, that’s the point, meaning the law is still unsettled and has to be developed.

But for now, and I mean right now, my sense is that Facebook and other such places do not have to allow everyone to post anything they want, and these companies can enforce what they call their “community standards” at they see fit, in their absolute discretion. That would include removing material they consider to be anti-vax, at least until some court, (and that ultimately would be the Supreme Court) says they can’t.

But… (and like I’ve said in the past, there’s oftentimes a but), practically speaking, it might be harder than Facebook thinks to enforce its new policy. I’ll explain that in another post. But to give you a forspice (appetizer/taste for the Yiddish illiterati), one of my all-time favorite phases comes from JD Salinger’s Franny and Zooey, “verbal stunt pilots.”

Stay tuned!

Rick Jaffe, Esq.

rickjaffeesquire@gmail.com