Gov. Gavin Newsom has signed Assembly Bill 2098, making California the first state in the United States to censor what medical doctors can tell the public about COVID-19. This is dangerous, and most likely an unconstitutional move that other states must resist.
The law states that “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 Medical Board of California, presently defines “unprofessional conduct” as “breach of confidence, record alteration, filing fraudulent insurance claims, misleading advertising, failure to sign death certificates in a timely manner, failure to provide medical records to a patient, patient abandonment, etc.”
A 2018 Supreme Court case, National Institute of Family and Life Advocates v. Becerra, held that expert speech– speech by qualified practitioners based upon their specialist understanding and also judgment– is safeguarded by the First Amendment as reported by The New York Post.
The court, however, did suggest that laws of expert conduct pertaining to expert speech could be considered. Speech that becomes part of medical practice has historically been subject to licensing as well as regulation by states.
It is unclear at this time whether offering advice to a patient, for example: whether or not to wear a mask or discussing the security of in-person learning– is close enough to medical advice and treatments to pass constitutional muster. This will definitely be decided in future lawsuits.
However, the statute clearly has constitutional troubles in specifying COVID “misinformation.”
The law’s interpretation is “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” This is ridiculous and most likely unconstitutionally vague as defined by Cornell Law School’s Legal Information Institute,
“A constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable. Criminal laws that violate this requirement are said to be void for vagueness. The vagueness doctrine rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. By requiring fair notice of what is punishable and what is not, the vagueness doctrine also helps prevent arbitrary enforcement of the laws… Under vagueness doctrine, a statute is also void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.”
As the Supreme Court noted, “Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields.”
The statute does not specify that is the arbiter of “contemporary scientific consensus” on COVID.
According to The Western Journal, a group of doctors, the Physicians for Informed Consent, opposed the legislation on the grounds that it would silence physicians, explaining in a statement that the law unconstitutionally targets them, “attempting to intimidate by investigation, censor and sanction physicians who publicly disagree with the government’s ever-evolving, erratic, and contradictory public health Covid-19 edicts.”
