Are doctors protected by First Amendment free speech rights if they provide medical advice that the consensus views as misinformation?
That question is at the core of two legal challenges to a new California law that could punish doctors for spreading false information about COVID-19 vaccines and treatments.
On Sept. 30, Gov. Gavin Newsom signed a bill that designates the spread of “false” or “misleading” information related to the pandemic to patients as “professional misconduct” subject to punishment, including losing their medical license. The bill specifically covers speech from doctors to patients given in the course of their jobs, not the statements that doctors make on social media.
It defines “misinformation” as “false information … contradicted by contemporary scientific consensus contrary to the standard of care.”
The California Medical Association, which represents nearly 50,000 physicians in the state, supported the bill, which goes into effect on Jan. 1, 2023.
Two groups of plaintiffs, however, are seeking to block it before it goes into effect. Both groups include doctors who have spoken out against government pandemic restrictions and experts’ recommendations during the pandemic. The first suit was filed on Oct. 4 in U.S. District Court for the Central District of California; the second was filed on Nov. 2 in the Eastern District.
It’s not surprising that these lawsuits’ plaintiffs are finding support from individuals and organizations who strongly opposed governmental restrictions during the pandemic. But they’ve also gained the support of the American Civil Liberties Union, which filed an amicus brief in the Central District case, saying that the new law regulates speech protected by the First Amendment: “It expressly limits the ability of physicians to speak about certain topics to their patients and thereby restricts their ability to communicate.”
In addition, professor and former Planned Parenthood president Leana Wen wrote an opinion piece criticizing the measure a few weeks before Newsom signed it. “California’s bill is a recipe for medical practice to be subject to the whims of partisan politics,” she wrote. “And it challenges the basis of the doctor-patient relationship.”
National medical organizations, however, have taken strong positions regarding physicians who spread what’s regarded as misinformation.
Last year, the Federation of State Medical Boards issued a statement warning doctors that they risk disciplinary action from medical boards in their states if they disseminate misinformation.
In June, the American Medical Association adopted a policy addressing the spread of disinformation by some physicians, contending that they have “an ethical and professional responsibility to share truthful information.”
Doctors and the First Amendment
Like most everyone else, doctors have free-speech rights. The thorny question these lawsuits raise, though, is this: At what point can government step in and try to silence them?
If a physician is providing incompetent medical advice, it could be malpractice and within the grounds of professional discipline.
But that’s not a First Amendment issue. And in 2012, the U.S. Supreme Court struck down a law that made it a criminal offense to lie about receiving military awards. The court essentially said that lies still mostly enjoy the benefit of First Amendment protections.
The State’s ‘Compelling Interest’
But the state also has a duty to protect public health, which is why state governments felt the need to enact lockdowns and mask mandates. If the government deems doctors’ speech to threaten public health, it can take steps. But it must prove a “compelling interest” to restrict that speech and show that its action is “narrowly tailored” to stop the harm caused by that speech. So what would a court say about a doctor who tells a patient that the COVID-19 vaccines are dangerous or that they shouldn’t wear a mask?
That’s the legal terrain where we find ourselves with the California law and the lawsuits against it.
On one side are those who defend free speech even when it’s false or simply contradicts conventional wisdom.
“The Supreme Court has already said many times that false information is still protected under the First Amendment,” said Ethan W. Blevins, a lawyer for the Pacific Legal Foundation, a conservative legal organization that is not involved in the lawsuits.
But the state gives physicians a license to practice. And the state has the power to take it away.
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