California’s COVID-19 ‘misinformation’ law cools constitutionally protected speech


The New Civil Liberties Alliance, founded in 2017 by Columbia University legal scholar Philip Hamburger, cheekily describes itself as “a civil libertarian alternative to the ACLU who really cares about constitutional rights.” there is Thus, his two California chapters of the American Civil Liberties Union joined his NCLA to oppose a new California law that expands the powers of state medical boards to discipline doctors for “unprofessional conduct.” What you have done may seem amazing.

Reading AB 2098, this partnership is not all that surprising. AB 2098 threatens to punish doctors for sharing COVID-19 “misinformation” with patients. The law, which is due to go into effect on January 1, defines “misinformation” as advice “contrary to contemporary scientific consensus” and is an open call to the suppression of constitutionally protected speech.

In a federal lawsuit filed this month on behalf of five California doctors, NCLA argues that AB 2098 is unconstitutionally vague and inconsistent with the First Amendment. The Center for Justice and Legal Affairs, which represents two of her other doctors, made similar allegations in a lawsuit filed last month.

The Southern and Northern California divisions of the ACLU have agreed to a recently filed brief in support of JLC’s case. They say AB 2098, which the JLC calls the “Doctor Censorship Act,” is gratuitous and unconstitutional.

Lawmakers supporting AB 2098 said they fear doctors will prescribe ineffective and potentially dangerous treatments for COVID-19. However, existing regulations already allow the California Board of Medical We give you the power to take action.

The California court found “the kinds of conduct that the legislature was concerned about, such as failing to provide patients with sufficient information to make informed health choices, and committing medical fraud.” It has long been construed as falling within that rule, such as the act of treating a patient, or the provision of medically inappropriate treatment to a patient,” ACLU brief note. “Certainly, when considering AB 2098, Congress (the Medical Board)already capable About accusing doctors of this kind of misconduct.”

In contrast, the new law would subject doctors to reprimands for sharing honest opinions about COVID-19 if the medical board believes they have deviated from the “scientific consensus.” This vague standard raises questions of due process. Because the law does not give doctors fair notice of what the law does. It also raises free speech issues because it encourages self-censorship.

Given the “ambiguity” inherent in the state’s new definition of unprofessional conduct, the ACLU outline states: A state may at any time determine that a physician has violated AB 2098 by sharing an unconventional opinion and may obtain a medical license. ”

Some unconventional opinions end up being bogus, while others are ultimately justified. During the course of the COVID-19 pandemic, conventional wisdom about subjects such as patient intubation, the utility of cloth face masks, periods of isolation, and the efficacy of vaccines to prevent viral transmission is being repeated in response to new evidence. has changed.

AB 2098 not only violates doctors’ freedom of speech, it undermines the discovery process. It tells skeptical doctors to keep their mouths shut so as not to risk their licenses and livelihoods by speaking out.

When he signed AB 2098 into law at the end of September, California Governor Gavin Newsom said the legislative response to COVID-19’s “misinformation” would “chill” the conversation between doctors and patients. acknowledged that it could have an effect. But he argued the bill was “rigorously tailored” to target doctors “behaving in bad faith” or “obviously deviating from the standard of care required.” did.

If that were true, the law would be redundant. But contrary to Newsom’s wishful thinking, the law will be enforced as written, and the prospect should surprise anyone who actually cares about constitutional rights.

Jacob Sullum is senior editor at Reason magazine.

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