California’s ‘Misinformation’ Law Targets ‘Doctor Zero’

The California State Capitol building in Sacramento on April 18, 2022. John Fredricks/The Epoch Times

Commentary

A new and unconstitutional, Orwellian gag-order law took effect on Jan. 1. Titled “Physicians and surgeons: unprofessional conduct,” the law 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, which says an individual cannot be compelled by the government to provide incriminating information about himself, and the Fourteenth Amendment’s 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 this consensus on COVID-19.

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.”

Dr. Simone Gold speaks at a July 2020 press conference on the steps of the U.S. Supreme Court. Courtesy America's Frontline Doctors

As a physician and attorney, I am particularly interested in this law as it is very dangerous for both doctors and patients. It also happens that I am “Doctor Zero,” responsible for triggering California legislators to pass this unconstitutional law.

The transcripts of the committee hearings and bill analyses, mentioning me by name as the founder of America’s Frontline Doctors (AFLDS), can be found at this link. Shockingly, these legislative hearings, particularly on Aug. 30 and May 13, 2022, target a specific individual. Such a deeply flawed legislative history also undermines the bill’s legality.

First and Fourteenth Amendments

The leading and most recent Supreme Court precedent on free speech is National Institute of Family and Life Advocates (NIFLA) v. Becerra. In NIFLA, the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) attempted to impose mandatory medical speech on 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.

The Court also expressly stated, “Speech is not unprotected merely because it is uttered by professionals.”

This new California 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.

The new law is also unconstitutionally void for vagueness under the Fourteenth Amendment. According to Village of Hoffman Estates v. Flipside, Hoffman Estates Inc., “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.”

Court Challenges

There are currently three federal lawsuits challenging the new law.

Hoang v. Bonta was filed on Dec. 1, 2022 in the U.S. District Court for the Eastern District of California by Physicians for Informed Consent and the California Chapter of Children’s Health Defense on behalf of plaintiff Dr. 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. Newsom was filed on Nov. 1, 2022 in the U.S. District Court for the Eastern District of California by New Civil Liberties Alliance, a nonpartisan civil rights group. The plaintiff, California-licensed physician Dr. Tracy Høeg, argues the defendants violate the plaintiffs’ Fourteenth Amendment rights, as the terms “misinformation,” “disinformation,” and “scientific consensus” are “unconstitutionally vague.”

McDonald v. Lawson was the first suit filed against the new law. It was filed on Oct. 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, meaning an amended complaint must be filed.

Supporting vs. Opposing Groups

The groups supporting this censorship include the American Medical Association, the Federation of State Medical Boards, the Medical Board of California, and the Osteopathic Medical Board of California.

The groups opposing this censorship include AFLDS, Advocates for Faith & Freedom, Advocates for Physicians’ Rights, American Civil Liberties Union, Association of American Physicians and Surgeons, California Health Coalition Advocacy, Children’s Health Defense, Liberty Justice Center, New Civil Liberties Alliance, and Physicians for Informed Consent.

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 California Code needs to be struck down. The law is hardly the dispassionate and reasoned legal analysis the people of California deserve from its legislators.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.