California’s controversial COVID-19 misinformation law, which bars doctors from providing “misinformation” or “disinformation” related to COVID-19, is an unprecedented effort by those in power to block doctors from sharing their views on COVID-19 topics, including on vaccines, with their patients, an attorney says. And lawmakers had pivoted the initial bill from its true, intended purpose to be able to pass it.
That’s according to Rick Jaffe, an attorney who represents a lawsuit challenging the measure, AB 2098 (pdf), also referred to colloquially as the state’s COVID-19 misinformation law, which became effective on Jan. 1 but has since been put on hold.
A judge granted a preliminary injunction (pdf) late Wednesday, temporarily blocking the law from being enforced pending further litigation in two lawsuits. Jaffe is involved in one of the cases—Hoang v. Bonta. The other case is Hoeg v. Newsom. Both had argued, in part, that AB 2098 is unconstitutional under the First and Fourteenth Amendments of the U.S. Constitution.
“This is the first effort to suppress health care practitioners from telling patients what the doctors think,” Jaffe said of the COVID-19 misinformation law in a recent interview with EpochTV’s “Crossroads” program.
“If they get away with this, it’s not going to be the last time they do this … That’s what we’re battling against,” he added, noting that such impunity could result in similar speech-suppression efforts “for the next pandemic.”
From Jan. 1 until the latest injunction, AB 2098 meant that doctors were able to “be sanctioned for speaking out against the mainstream COVID media,” Jaffe said.
He celebrated the latest ruling late Wednesday in a blog post. “We won!” he wrote.
“[Senior Judge William B. Shubb] granted our motion … for a preliminary injunction stopping the Attorney General and the [California] medical boards from enforcing its Covid Misinformation bill,” he said.
“Today was a very, very good day for physicians’ free speech and health freedom. But tomorrow, we start working on the next battle. No rest for the committed,” he said of the ongoing lawsuit.
The legislation, as signed into law by Gov. Gavin Newsom on Sept. 30, 2022, stipulates that the Medical Board of California and the Osteopathic Medical Board of California can discipline doctors who provide “misinformation” or “disinformation” related to COVID-19.
It defines misinformation as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care,” and disinformation as “misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.”
But the broad definition of what constitutes misinformation has been put under scrutiny. In the hearing on Jan. 24, Shubb called the law’s definition of misinformation “nonsense,” and said the overall law lacked clarity, reported KUSI.
Lawmakers Pivoted Legislation to Pass it
The original purpose of AB 2098, first proposed in February 2022, was to penalize California doctors who were questioning the COVID-19 vaccines, or promoting the use of ivermectin and hydroxychloroquine in the media and social media, or any other comments not in line with the “consensus.”
This was what Jaffe and attorneys for Children’s Health Defense (CHD) said in the motion (pdf) that sought the now-granted preliminary injunction.
“And then what happened is, it became very clear very quickly to the legislature is that you can’t stop doctors from speaking out in public,” Jaffe said.
“There’s no serious person who knows the Constitution is going to say that a medical board can sanction a physician for expressing his views in public. … In other words, that’s an automatic violation of the First Amendment.”
In order to save the bill, its authors “agreed to gut the bill and abandon the bill’s basic purpose,” the motion stated.
The lawmakers tried to limit the legislation’s scope to only “information provided for the purposes of treatment or advice between a doctor and a patient, in the hopes that that would basically avoid the obvious constitutional problem,” Jaffe told Crossroads.
Notably, when lawmakers passed the measure in September 2022, its text only targets doctors’ speech in their non-public interactions with their patients when discussing topics directly related to COVID-19 treatment.
“It was really the public problem they were trying to address, but they had to give that up,” Jaffe said. “The way the law reads now is, it’s completely ineffective to do what the law was supposed to do, which was to stop these doctors from drowning out the public health authorities.”
The judge, in ruling to temporarily halt the bill, had “extensively” cited an expert declaration (pdf) submitted by Dr. Sanjay Verma, which had “demonstrated that there is no scientific consensus in Covid-19,” Jaffe said on his blog.
Shubb, in this ruling (pdf), noted that COVID-19 is “a disease that scientists have only been studying for a few years, and about which scientific conclusions have been hotly contested,” adding, “COVID-19 is a quickly evolving area of science that in many aspects eludes consensus.”
The state medical board actually “don’t even need” the law, and if they wanted to, without AB 2098, they could still try to sanction doctors both for their public and private speech, Jaffe told Crossroads. “But they figured, ‘well, let’s make it clear that we can do it.’ That’s their position,” he said in commenting on why the legislation may have been proposed in the first place.