A federal judge blocked a California law that allowed the state to punish doctors who shared alleged “misinformation” about COVID.
U.S. District Judge William Shubb ruled Wednesday that Assembly Bill 2098, signed by Democratic Gov. Gavin Newsom in September, was unconstitutional.
“Because the definition of misinformation ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited, [and] is so standardless that it authorizes or encourages seriously discriminatory enforcement,’ the provision is unconstitutionally vague,” Shubb wrote. “Accordingly, the court concludes that plaintiffs have demonstrated a likelihood of success on the merits of their vagueness challenges.”
The five doctors in the lawsuit against the governor in Hoeg v. Newsom argued that the law was unconstitutional under the First and Fourteenth Amendments of the U.S. Constitution. A second related lawsuit, Hoang v. Bonta, alleged similar concerns.
The law went into effect on January 1.
It described COVID misinformation as “false information that is contradicted by contemporary scientific consensus.” Doctors were prohibited from providing “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 court’s decision suspends the law while any legal appeal seeks to overturn the ruling.
The New Civil Liberties Alliance (NCLA), a nonpartisan, nonprofit civil rights group representing the five doctors in the case, issued a statement in celebration of the court ruling.
“NCLA is gratified Judge Shubb has recognized that AB 2098, which seeks to punish California doctors for giving patients information that departs from the so-called contemporary scientific consensus about Covid, creates an impossible standard for physicians to follow and would result in silencing physicians who disagree with state orthodoxy,” Jenin Younces, litigation counsel for NCLA, said.
“The speed with which he issued his decision no doubt reflects the significance of the constitutional problems the law presents, as well as the negative consequences it would have for doctor-patient relationships,” he added.
Greg Dolin, senior litigation counsel for NCLA, also called out the problems with the legislation.
“This Act is a blatant attempt to silence doctors whose views, though based on thorough scientific research, deviate from the government-approved ‘party line,’” Dolin stated. “At no point has the State of California been able to articulate the line between permissible and impermissible speech, further illustrating how problematic the statute is. NCLA is pleased the Court recognized all the problems with AB2098 and enjoined this unconstitutional law.”
Aaron Keriaty, one of the doctors in the lawsuit, also expressed his support of the decision.
“The ruling bodes well for our case: it indicates that our arguments that this law is unconstitutional have strong pre-trial facial plausibility,” he tweeted.
2/ The ruling bodes well for our case: it indicates that our arguments that this law is unconstitutional have strong pre-trial facial plausibility. Not to get ahead of ourselves, of course, or try to predict the final outcome of the case, but this is a very positive development.
— Aaron Kheriaty, MD (@akheriaty) January 26, 2023
Another plaintiff in the case, Dr. Tracy Hoeg, stated in the lawsuit that she was “afraid of saying something to my patients that I know is consistent with the current scientific literature but may not yet be accepted by the California Medical Board.” Physicians must “feel free to speak truthfully with their patients if they wish to gain and maintain their trust,” she said.