When Governor Gavin Newsom signed into law a law that would penalize California doctors for spreading false information about Covid-19 vaccines and treatments, he promised it would only apply in the most “blatant cases” of misleading patients.
It may never get the chance.
Even before the law, the first of its kind in the country, goes into effect on January 1, it faces two legal challenges to declare it an unconstitutional violation of free speech. The plaintiffs include doctors who have spoken out against government and expert recommendations during the pandemic, as well as legal organizations on both sides of the political spectrum.
“Our system takes the premise that speech is protected,” said Hannah Kieschnick, an attorney for the Northern California chapter of the American Civil Liberties Union, who filed a friend-of-the-court letter in favor of one of the challenges , filed last month in the U.S. District Court for the Central District of California.
That lawsuit, and another filed this month in California’s Eastern District, has become an extension of the broader cultural battle over the Covid-19 pandemic, which continues to divide Americans along stark partisan lines.
They could also test more broadly what steps the government can take – if any – to combat the scourge of misinformation and disinformation, even in cases where it impacts personal and public health.
The law, narrowly written in hopes of avoiding First Amendment entanglements, would label the dissemination of false or misleading information to patients as “unprofessional conduct,” subject to punishment by the body that regulates the profession, the Medical Board of California. That could lead to fines, or a suspension or revocation of a doctor’s license to practice in the state.
The California Medical Association, which represents nearly 50,000 physicians in the state, sponsored the legislation, but the physicians involved in the two lawsuits argue that the law’s provisions remain both vague and overly intrusive.
They warn that the law’s definition of disinformation as untruths that run counter to “contemporary scientific consensus” would hinder doctors’ ability to honestly advise patients about the pros and cons of Covid-19 treatment and practices.
Republican-controlled states have moved in the opposite direction. Texas passed a law that allows citizens or the state’s attorney general to sue social media companies for deleting posts because of political views. Legal challenges — and another in Florida involving candidates for elected office — have been tossed around and could make it to the Supreme Court.
The spread of misinformation and untruths
California prosecutors have sought court orders to block the law before it goes into effect, arguing that it was designed to silence dissent.
One of them, Dr. Tracy Hoeg, a physician and epidemiologist who works in Grass Valley, near Sacramento, has written peer-reviewed studies since the beginning of the pandemic that question some aspects of government policies adopted to halt the spread of Covid-19.
Those studies, on the efficacy of masks for schoolchildren and the side effects of vaccines on young men, exposed her to fierce social media criticism, she said, in part because they fell outside the scientific consensus of the time.
She noted that medical knowledge of the coronavirus continues to evolve and doctors should be open to new evidence on treatment and prevention.
“It’s going to cause this very broad self-censorship and self-silence of doctors with their patients because it’s not clear what we can and can’t say,” said Dr. Hoeg, one of five doctors who filed a complaint in the East district. “We have no way of knowing if any new information or new studies coming out have already been accepted as consensus by the California Medical Board.”
The lawsuits highlight the legal hurdles faced by states that have attempted to curb misinformation or disinformation, especially online. While Democrat-controlled states have tried to force the social media giants to do more to stop the spread of conspiracy theories surrounding the Covid-19 pandemic, Republican states have taken steps to penalize the companies for deleting accounts based on political positions.
Ethan W. Blevins, an attorney for the Pacific Legal Foundation, a conservative legal organization that has criticized the law but is not involved in either challenge, said the state would have the burden of proving that medical disinformation caused actual harm and that it was distributed. on purpose.
“The Supreme Court has said many times that false information is still protected by the First Amendment,” he said.
In a statement released when he passed the law on Sept. 30, Governor Newsom, a Democrat, acknowledged the challenge of protecting doctors’ freedom of speech, but said the law narrowly targeted malicious intent and clear departures from established standards of care.
“I am concerned about the chilling effect that other potential laws could have on physicians and surgeons who need to be able to effectively talk to patients about the risks and benefits of treatments for a disease that has only emerged in the last few years,” he wrote. “However, I am confident that discussing emerging ideas or treatments, including the resulting risks and benefits, does not constitute misinformation or disinformation under the criteria of this bill.”
The law’s supporters argue it was necessary to protect patients from doctors who had fueled skepticism about vaccines and mask mandates or encouraged the use of drugs such as ivermectin and hydroxychloroquine, which have proven ineffective against the coronavirus.
Yet lawmakers have narrowed the scope of the legislation to only direct conversations with patients. Social media posts, opinion articles, or other public statements doctors may make are not covered by the law.
The American Medical Association has blamed disinformation for exacerbating the toll of the pandemic. In June, it passed a policy that called, among other things, for state licensing authorities to penalize doctors who distribute it in their capacity as health care workers.
Dr. Jeff Barke, a doctor who has treated Covid patients in his office in Southern California’s Newport Beach, said the law was an attempt by the state to impose a rigid orthodoxy on the profession that would exclude experimental or untested treatments .
Those include ivermectin and hydroxychloroquine treatments that he said he had found effective in treating the coronavirus, despite studies suggesting otherwise. “Who decides what constitutes false information?” he said.
Dr. Barke last month joined another outspoken doctor, Mark McDonald, in filing the challenge in Central District Court, represented by two conservative legal groups, Advocates for Faith and Freedom, and the Liberty Justice Center. He said they were defending patients against a “massive medical bureaucracy” dominated by pharmaceutical lobbies and the state.
“What is next?” he said. “How do I talk to patients about cancer? How do I talk to patients about obesity or diabetes or asthma or any other disease? If they have a standard of care that they think is appropriate and they don’t want me to go against their story, they’ll say Barke is spreading misinformation.
Judge Fred W. Slaughter, who was nominated by President Biden and confirmed by the Senate in March, held a hearing this month on Dr. bark. He questioned lawyers on both sides about whether prosecutors stood by the case and whether the new law could regulate misinformation as a matter of professional conduct, as opposed to speech.
“The statute is clear, especially for trained medical professionals who know the standard of care,” Kristin Liska, deputy attorney general for the state’s Justice Department, told the judge.
The challenge in the Eastern District will be heard in December by Senior Justice William B. Shubb, who was appointed in 1990 by President George HW Bush.
Richard J. Baron, chief of the American Board of Internal Medicine, said the fight against medical misinformation and misinformation reflected a deeper erosion of trust in society.
Certain types of information were undoubtedly harmful, Dr. Baron argued, and physicians have a duty to protect patients from them, regardless of their political views on public health policy.
“It’s the state that gives you a license, and it’s the state that makes sure that license gives you a lot of opportunities that people who don’t have that license don’t have,” he said. “And with that comes the responsibilities of loyalty to the community of experts that generate things like the standard of care that patients are entitled to.”