This week, a federal judge said California’s definition of “misinformation” about COVID-19 that can trigger disciplinary action against doctors is unconstitutionally vague. But in another case involving the same law last month, another federal judge rejected that claim. The stark dissent underscores the carelessness of the California state legislature in drafting this statute and the speech-intimidating conundrum doctors would face trying to comply with it.
Under AB 2098, which took effect Jan. 1, “the dissemination of misinformation or misinformation related to COVID-19, including false or misleading information” about the “nature and risks of the virus,” will be considered unprofessional conduct by physicians and surgeons. “its prevention and treatment” and “development, safety and efficacy of vaccines against COVID-19”. The law defines “disinformation” as “false information that contradicts the current scientific consensus and that is contrary to the standard of care.”
that language, The New York Times reporter Steven Lee Myers claims that what was supposed to be fair news was “narrowly tailored” to “address the waves of misinformation that have been churning up during the pandemic.” Leaving aside the point that the “address[ing]” disinformation ban seems patently inconsistent with the First Amendment, is Myers correct in describing AB 2098 as “narrowly tailored”?
William B. Shubb, a U.S. District Court judge for the Eastern District of California, didn’t think so. IN Høeg v. Newsom, Shubb issued a preliminary injunction against the enforcement of AB 2098 on Wednesday. He said the state’s definition of disinformation violates the right to due process because it “does not provide a person of ordinary intelligence with fair notice of what is prohibited” and is “so nonstandard as to permit or encourage seriously discriminatory enforcement.”
Fred W. Slaughter, Judge of the US District Court for the Central District of California, reached a markedly different conclusion in McDonald v. Lawson December 28. In denying the request for a preliminary injunction, Slaughter said the law is clear enough to give doctors fair notice of what they can tell patients without jeopardizing their licenses.
As Shubb saw it, California’s definition of misinformation is “grammatically incoherent” and incomprehensible. The central problem, he said, is that the term “modern scientific consensus” has no clear meaning, especially in the context of COVID-19, a new disease that has created conflicting and evolving scientific opinions. “Because the term ‘scientific consensus’ is so ill-defined,” he wrote, “plaintiff physicians are unable to establish whether their intended conduct is contrary to scientific consensus, and therefore ‘prohibited by law.'”
Shubb rejected the state’s preferred interpretation of AB 2098, which is that the law requires misinformation to include three elements: it is 1) “false information” that is 2) “contrary to current scientific consensus” and 3) “contrary to the standard of care.” ” There are several problems with this interpretation.
First, the law says prohibited advice includes “false.” or misleading information,” which means that it is not limited to statements that are proven to be wrong. Second, while it is not clear what “contemporary scientific consensus” means, it is difficult to imagine a situation in which a state medical board would conclude that a doctor’s statements were contrary to that consensus , but they were still true. Third, if the “misinformation” is limited to advice that contradicts the “standard of care” that the medical board already applied, the law is redundant, adding nothing to existing regulations. Fourth, the sloppy language of the law makes it unclear how these supposedly different elements interact.
If lawmakers intended to ban medical advice that met three separate criteria, Shubb noted, they could have said so. But they didn’t bother to insert a word andor even a comma between “contrary to contemporary scientific consensus” and “contrary to the standard of care.” Did they mean that medical advice contradicts the “standard of care” whenever it contradicts the state-defined “scientific consensus”? Or did they think that advice could contradict the “scientific consensus” but still be consistent with the “standard of care”?
Under the first interpretation, AB 2098 would redefine the standard of care. In the latter interpretation, the one favored by the state, the law would achieve nothing. As long as doctors adhered to the standard of care they were already supposed to follow, they wouldn’t have to worry about getting in trouble for honestly expressing their opinions about the “nature and risks” of COVID-19, its “prevention and treatment,” or vaccines aimed at reducing its seriousness.
Despite all these problems, Slaughter accepted the state’s interpretation of AB 2098 (citations omitted):
The definition of the measure “disinformation” consists of three components: (1) demonstrably false information; (2) contrary to contemporary scientific consensus; and (3) inconsistent with the standard of care. Although “contrary to the standard of care” immediately follows “contrary to contemporary scientific consensus” without a conjunction, construing the statute in light of California law’s established definition of “standard of care” as the skill, knowledge, and care exercised by practitioners under similar circumstances, it is clear from the statute that the requirement “contrary to the standard of care” imposes the burden on the state to prove that treatment or advice that would otherwise qualify as “false” and “contrary to current scientific consensus” must further violate that known standard. Moreover, as defendants concede, to the extent that the scientific consensus is unclear, AB 2098 would not impose liability because there is nothing to the contrary. In other words, to be “misinformation” under AB 2098, the state must show that there is a scientific consensus, that the information provided by the surgeon or physician contradicts it and is demonstrably false, and that providing that information in the context of treatment or advice to a patient would contrasted with the skill, knowledge and care exercised by the same colleague in similar circumstances. Accordingly, the court finds that “misinformation” is not impermissibly vague, in the sense that it requires, by its statutory text, a false statement of information that is contrary to contemporary scientific consensus, which is further contrary to the applicable standard of care.
Under this interpretation, doctors who disagree with what a medical board considers the “scientific consensus” need not worry about disciplinary action unless they tell patients something that is “patently false” and also violates the “standard of care.” In other words, a physician would be clean if he contradicted the “scientific consensus,” even if his statements were “manifestly false,” as long as his services were consistent with “the skill, knowledge, and care exercised by practitioners in similar circumstances. ” But since doctors were already subject to “that known standard,” AB 2098 doesn’t impose any new requirements on them, which makes you wonder why the legislature bothered to pass it.
Despite the state’s claim that AB 2098 ultimately changes nothing, law enforcement regulators can be expected to scrutinize the speech of doctors who dare to deviate from the “scientific consensus.” That transgression could mean expressing skepticism about ever-changing advice from public health agencies like the Centers for Disease Control and Prevention (CDC) on contentious issues such as the benefits of universal masking, the usefulness of cloth masks, the effectiveness of vaccines in preventing the spread of COVID-19, and the benefits of vaccination. for young, healthy patients who are facing a very low risk of life-threatening symptoms of COVID-19.
Under the state’s interpretation of AB 2098, the medical board could decide that the doctor’s advice was contrary to the “contemporary scientific consensus,” which it could equate to the latest CDC recommendations. The board could also find that the doctor’s advice was “false or misleading”. Even so, it could decide that the doctor’s medical practice meets pre-existing “standards of care,” which the state says are not changed by AB 2098. Even if the doctor ends up keeping his license, he would still suffer the inconvenience, expense, inconvenience, and anxiety that such an inquiry brings. takes with him.
Doctors who want to avoid that ordeal should think twice before offering their honest opinion to patients. This is how the “cooling effect” works.
Because Shubb concluded that AB 2098 was unconstitutionally vague, he did not directly address the claim that it violates the First Amendment. But he noted that “vague statutes are particularly objectionable when they ‘involve sensitive areas of First Amendment freedoms’ because they ‘prevent the exercise of those freedoms.’ To show standing in this context, he said, “a plaintiff ‘needs only to show that the threat of potential enforcement will cause him to self-censor.'”
Two California chapters of the American Civil Liberties Union filed the brief McDonald v. Lawson which raised similar concerns. “AB 2098 undoubtedly reaches First Amendment protected speech,” they said. “It specifically limits the ability of doctors to talk about certain topics to their patients and thus limits their ability to communicate.”
In the case from 2002 Conant v. Walters, the U.S. Court of Appeals for the 9th Circuit, which includes California, held that the federal government violated the First Amendment when it threatened to revoke the prescribing privileges of doctors who recommend medical marijuana to their patients — advice that ran counter to the “scientific consensus,” as federal officials defined it. “An integral part of the practice of medicine is communication between doctor and patient,” the appeals court said. “Doctors must be able to speak honestly and openly with patients.” That ruling, the ACLU brief said, “clearly prohibits the state from censoring medical discussions, medical advice and recommendations related to COVID-19 unless content-based regulations are subject to strict oversight.”
In Slaughter’s view, AB 2098 complies with the First Amendment because it “incidentally burdens speech as a regulation of professional conduct.” He said the law “merely requires that, while providing medical treatment or advice to a patient with COVID-19, the physician avoids providing demonstrably false information that is contrary to the prevailing scientific consensus in [a] a manner that violates the standard of care.”
That conclusion hinges on accepting the implausible state interpretation of AB 2098. But Shubb found that interpretation “difficult to justify” based on the law’s text. And even if accepted, he said, it would not clarify what “scientific consensus” means in this context.
Two federal judges have considered this statute and come to diametrically opposed conclusions about what it means. Slaughter, who was appointed by President Joe Biden last April after serving eight years as a state judge in Orange County, thought the law’s definition of disinformation was clear. Appointed by President George HW Bush in 1990, Shubb saw a hopeless mess. Yet doctors without law degrees or judicial experience are expected to understand what the law requires, knowing they risk their licenses and livelihoods if they get it wrong. Under these circumstances, self-censorship is both prudent and consistent with what the California legislators were clearly trying to achieve.