A federal judge has granted a preliminary injunction halting the enforcement of Assembly Bill 2098, the patently unconstitutional California law that requires the Medical Board of California to investigate and possibly suspend physicians who say anything about COVID-19 to their patients that departs from the “contemporary scientific consensus.”
The law is being challenged by five California physicians represented by the New Civil Liberties Alliance, a nonprofit civil rights group. They’re suing on the grounds that the law is a violation of their First Amendment rights to freedom of speech, which obviously it is. But Judge William B. Shubb didn’t even reach the First Amendment argument. He granted the preliminary injunction on the grounds that the law is so ill-defined and vague that the doctors are “unable to determine if their intended conduct contradicts the scientific consensus.”
The Fourteenth Amendment to the U.S. Constitution prohibits any state from denying due process of law to any person. That includes any law that is so vague that people can’t possibly determine what is prohibited by it.
AB 2098 states, “It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.”
The law defines “misinformation” as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” The judge called that provision “grammatically incoherent” and concluded that “contemporary scientific consensus” has no “established meaning within the medical community.”
NCLA attorney Jenin Younes said AB 2098 “would result in silencing physicians who disagree with state orthodoxy.”
The constitutional right of freedom of speech is not contingent on the government’s approval of the content of that speech. Rights are not privileges to be granted or revoked. They are limits on the power of government.
AB 2098 states that “the spread of misinformation and disinformation about COVID-19 vaccines has weakened public confidence and placed lives at serious risk.” But the same could be said about a law that dictates what doctors may say to their patients.
If, as seems likely, Judge Shubb eventually strikes down AB 2098, we urge the state not to appeal that decision.