5 Doctors Sue California Over Medical Misinformation Law

California Gov. Gavin Newsom listens to a question during a press conference in Los Angeles on Nov. 10, 2021. (Patrick T. Fallon/AFP via Getty Images)

A group of doctors is suing California officials over a new state law that allows medical boards to punish physicians who offer what the boards deem to be “misinformation or disinformation” related to COVID-19.

The law, passed by Democrats in September and signed into law soon after by Democrat Gov. Gavin Newsom, violates doctors’ constitutional rights to free speech and due process, according to the lawsuit.

The law’s definition of misinformation, as “false information that is contradicted by contemporary scientific consensus,” is a clear violation of the U.S. Constitution’s First Amendment, Dr. Tracy Hoeg, a California physician, and the four other doctors said.

“In safeguarding Americans’ rights to free speech and expression, the First Amendment applies not only to expression of majority opinions, but to minority views as well,” the suit reads. “Indeed, it is minority views that need protection from government censorship—as this law shows. Nor is there an exception to the prohibition on viewpoint-based discrimination simply because the law applies only to a regulated profession. In short, AB 2098 infringes Plaintiffs’ First Amendment rights because it impedes their ability to communicate with their patients in the course of treatment.”

The term “scientific consensus” is also unconstitutionally vague, thus violating the plaintiffs’ rights to due process of law, according to the filing.

The lawsuit was filed in a U.S. court in eastern California.

The plaintiffs want the court to enter a preliminary injunction against the law. That would block enforcement until the case is resolved.

“We have no doubt that courts will see this unconstitutional law for what it is and strike it down,” Jenin Younes, a lawyer with the New Civil Liberties Alliance who is representing the plaintiffs, said in a statement.

If the law is not blocked, Hoeg  said, “physicians will find themselves in a very difficult position of needing to choose between saying what they truly believe, saying what they think the medical board wants them to say, or simply staying silent.”

The Medical Board of California declined to comment.

The other defendants, including Newsom, didn’t respond to requests for comment.

The lawsuit isn’t the first lodged against the law. Two doctors sued over it in October, also alleging that their free speech rights were being violated.

In a message to lawmakers about signing the law, Newsom said the law would not have a “chilling effect” on doctors and that it was “narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care.”