In September of last year, Gavin Newsom passed Assembly Bill 2098, which would deem alleged misinformation given by physicians to their patients about the coronavirus as "unprofessional conduct.” Now, the justice system has dealt a hard blow to the governor of California.
William B. Shubb, Judge of the Eastern District Court of California, issued an injunction temporarily blocking the bill. Newsom's legislation was to take effect on Jan. 1.
Judge Shubb's decision comes on the heels of five California physicians' lawsuit against Newsom in November, in which they alleged that the legislation violated their First Amendment rights. It should be remembered that the First Amendment protects freedom of speech, so they were prevented from communicating freely with their patients:
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.
Apart from that, these five medical professionals pointed out that "the contemporary scientific consensus is undefined in the law and undefinable as a matter of logic."
"Scientific consensus … lacks an established meaning”
In his ruling, Judge Shubb explained that the link between misinformation and unprofessional conduct that Newsom established in his law "lacks an established meaning."
Judicial references to the concept of scientific consensus—in the context of COVID-19 as well as other disputed scientific topics—confirm that the term lacks an established meaning. Courts have based their understanding of scientific consensus on a wide range of sources, including U.S. professional organizations, international professional organizations, state and federal courts, U.S. scientific studies, international scientific studies, various federal agencies, and the state of application of the law is highly fact-specific.
Fear of telling the truth
The New Civil Liberties Alliance (NCLA) is a civil rights firm that defended the five physicians. One of NCLA's attorneys, Jenin Younes, said in November that this bill was "shocking" for applying censorship and violating the First Amendment:
That this shocking bill passed through the state legislature and was signed into law by Governor Newsom demonstrates that far too many Americans do not understand the First Amendment.
On the other hand, one of the plaintiffs, Dr. Tracy Hoeg, wrote in the lawsuit that she is "afraid of saying something to my patients that I know is consistent with the current scientific literature but may not yet be accepted by the California Medical Board," as well as noting that the law "puts physicians who are simply trying to give appropriate and individualized recommendations in a difficult position, particularly considering they may not know what the California Medical Board’s ‘consensus’ is at the moment or if it also evolves as our understanding evolves."