A new and unconstitutional Orwellian, gag-order law took effect on January 1, 2023. California Code, Chapter Business and Professions Code Section 2270, titled “Physicians and surgeons: unprofessional conduct” permits the Medical Board of California to discipline doctors who “disseminate” misinformation. It’s an obvious and direct attack on the First Amendment (freedom of speech), as well as the Fifth Amendment (an individual cannot be compelled by the government to provide incriminating information about himself) and the Fourteenth Amendments (equal protection under the laws).
This law attempts to mandate a new and undefined standard known as “contemporary scientific consensus” and illegally suppress differing professional opinions counter to the approved COVID-19 “contemporary scientific consensus.” Differing professional opinions are of course protected from governmental interference and censorship by the First Amendment. The importance of differing professional opinions is also enshrined in the practice of medicine by the longstanding right and traditional entitlement of patients to the time-honored “second opinion”. If everyone were forced to adopt the undefinable “contemporary scientific consensus”, second opinions could be deemed to be “misinformation.”
As a physician and attorney, I am particularly interested in this law as it is so dangerous for both doctors and patients. It also happens that I am “Doctor Zero,” responsible for triggering Californian legislators to pass this unconstitutional law. The transcripts of the California Committee hearings can be found at this link. Shockingly, and likely without precedent, these legislative hearings, particularly on 8/30/22 and 5/13/22, target a specific individual. Such a deeply flawed legislative history of a bill also undermines its legality.
Brief Legal Analysis: Violation of the First and Fourteenth Amendments
Nat’l Inst. Of Family & Life Advocates (“NIFLA”) v. Becerra, 138 S.CT. 2361, 2374-2375 (2019) is the leading and most recent Supreme Court precedent on free speech”. In NIFLA, the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (“FACT Act”) attempted to impose mandatory medical speech (“content moderation”) upon health care providers. The FACT Act required pro-life health care clinics to inform patients that free or low-cost abortions were available in California and required the clinics to give the patients a telephone number to call for those services. The United States Supreme Court held that this law was likely an unconstitutional violation of the First Amendment. The Court noted that laws targeting speech based on its content, which compel speakers to speak a particular message, are presumptively unconstitutional. This law does exactly the same thing, attempting to turn an undefinable “contemporary scientific consensus” into “mandatory medical speech”, and is a fatal constitutional violation under any First Amendment analysis.
In an earlier case, Reed v. Town of Gilbert, 576 U.S. 155 (2015), the Supreme Court expressly stated that “Speech is not unprotected merely because it is uttered by professionals.”
The new law is also unconstitutionally void for vagueness under the Fourteenth Amendment. It is black letter constitutional law that “perhaps the most important factor affecting the clarity that the constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.” Village of Hoffman Estates v. Flipside, Hoffman, Estates, 455 U.S. 489, 499 (1982).
Court Challenges: There are currently three federal lawsuits challenging the new law.
Hoang v. Bonta, 22-cv-02147, EDCA was filed on December 1, 2022 in the U.S. District Court for the Eastern District of California by Physicians for Informed Consent (“PIC”) and the California Chapter of Children’s Health Defense (“CHD”) on behalf of plaintiff Letrinh Hoang, a California licensed osteopathic physician with more than 25 years’ experience. The suit alleges that the new California law violates physicians’ First Amendment and free speech rights by prohibiting them from sharing information with their patients if it is inconsistent with what the law refers to as “contemporary scientific consensus” and the “standard of care.”
Høeg v. Newsome, 2022-cv-01980, EDCA was filed on November 1, 2022 in the U.S. District Court for the Eastern District of California by New Civil Liberties Alliance (“NCLA”), a non-partisan civil rights group. The plaintiffs California-licensed physicians emphasizes the defendants violate the plaintiffs’ Fourteenth Amendment rights, as the terms “misinformation”, “disinformation”, and “scientific consensus” are “Unconstitutionally Vague”.
McDonald, et al v. Lawson, et al, 2022-cv-01805, CDCA was the first suit filed against the new law. It was filed on October 4, 2022 in the U.S. District Court for the Central District of California against the Medical Board of California and Attorney General. It was filed by Advocates for Faith & Freedom and Liberty Justice Center on behalf of two southern California AFLDS-affiliated doctors. Dr. Mark McDonald is a psychiatrist, and Dr. Jeff Barke is a primary care physician. Both doctors contend the new law violates the First Amendment and is “unconstitutionally vague”. [The case is pending as it was dismissed with leave to amend.]
Supporting vs. Opposing Groups: Protecting Differing Opinions is the very purpose of the First Amendment.
The groups supporting this censorship include the American Medical Association (AMA), the Federation of State Medical Boards (FSMB), the Medical Board of California (MBC); and the Osteopathic Medical Board of California (OMBC). The groups opposing this censorship include Advocates for Faith & Freedom; Advocates for Physicians’ Rights; American Civil Liberties Union (ACLU); America’s Frontline Doctors (AFLDS); Association of American Physicians and Surgeons (AAPS); California Health Coalition Advocacy (CHCA), Children’s Health Defense (CHD); Liberty Justice Center, New Civil Liberties Alliance (NCLA); and Physicians for Informed Consent (PIC).
Given its extraordinary legislative history targeting the free speech rights of an individual physician, as well as its multiple clear violations of the United States Constitution, this CA Code needs to be struck down. This law is hardly the dispassionate and reasoned legal analysis the people of California deserve from its legislators.
About the author: Dr. Simone Gold, MD, JD, is the founder of America’s Frontline Doctors (AFLDS.org) and GoldCare.com. She graduated from Chicago Medical School before earning her Juris Doctorate degree at Stanford University Law School. Her first book “I Do Not Consent: My Fight Against Medical Cancel Culture” was a best seller and her second book “Selective Persecution” will be published Spring 2023. She is currently being investigated for misinformation by the Medical Board of California.
