California’s dangerous new medical “misinformation” law has been temporarily blocked on First Amendment grounds.
The law prohibits doctors for sharing any health information with patients that the Democrat-run legislature deems to be “misinformation.” It would also penalize doctors for sharing such so-called “misinformation” about Covid-19.
Doctors would be put at risk of being charged with “unprofessional conduct” if their advice is deemed to be “misinformation” or “disinformation.” Infractions could even result in doctors’ licenses being revoked.
The senior judge in the case, Judge William Shubb, described the law’s definition of misinformation as “nonsense.”
“Because AB 2098 [the misinformation law] implicates [plaintiff’s] First Amendment right to receive information, she has standing,” the court wrote.
“Vague statutes are particularly objectionable when they involve sensitive areas of First Amendment freedoms because they operate to inhibit the exercise of those freedoms,” the court added, while referencing the 2001 case California Teachers Association v. State Board of Education.
“When the challenged law implicates First Amendment rights, a facial challenge based on vagueness is appropriate,” he added.
The law was passed last year when it was signed by Democratic Governor Gavin Newsom. It came into effect January 1 of this year.
The Los Angeles Daily News editorial board agreed with the judge’s decision. It provided essential background on the case.
“The law is being challenged by five California physicians represented by the New Civil Liberties Alliance, a nonprofit civil rights group,” the LA Daily News noted. “They’re suing on the grounds that the law is a violation of their First Amendment rights to freedom of speech, which obviously it is. But Judge William B. Shubb didn’t even reach the First Amendment argument. He granted the preliminary injunction on the grounds that the law is so ill-defined and vague that the doctors are ‘unable to determine if their intended conduct contradicts the scientific consensus’.”
“The Fourteenth Amendment to the U.S. Constitution prohibits any state from denying due process of law to any person,” the editorial board adds. “That includes any law that is so vague that people can’t possibly determine what is prohibited by it.”
AB 2098 states: “It shall constitute unprofessional conduct for a physician and surgeon to disseminate 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 law defines “misinformation” as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care,” the Daily News pointed out. “The judge called that provision ‘grammatically incoherent’ and concluded that ‘contemporary scientific consensus’ has no “established meaning within the medical community’.”
The Wall Street Journal, in a recent editorial, also noted the issue with basing policy on a supposed scientific “consensus.”
“Who determines whether a consensus exists to begin with? If a consensus does exist, among whom must the consensus exist (for example practicing physicians, or professional organizations, or medical researchers, or public health officials, or perhaps a combination)?” Judge Shubb wrote. He also asked what sources doctors should consult to determine the consensus, WSJ noted.
The Deputy Attorney General Kristin Liska, who is representing Gov. Gavin Newsom, argued that a medical professional has to violate all three aspects of the definition of “misinformation” for punishment to be applicable: share misinformation, contradict scientific consensus, and go against the standard of care.
The definition of scientific “misinformation” being based on “consensus” is a violation of Western scientific norms going back centuries. Modern science is based on the falsification of hypotheses and theory building. If you cannot question it, it cannot be “science.” It is, rather, “dictate.”
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OPINION: This article contains commentary which reflects the author's opinion.