Judge puts new California law policing doctors’ COVID speech on hold

A federal judge has put a hold on a new California law aimed at combating disinformation spread by doctors about COVID-19 and the masks and vaccines public health authorities urge to protect against it, which critics called a suppression of free speech and professional judgment.

California physicians, some of whom practice in the Bay Area, sued over the law, AB 2098 by Assemblyman Evan Low, D-Cupertino, after Gov. Gavin Newsom signed it last fall, arguing it violates their free speech and due process rights.

“The provision is unconstitutionally vague,” U.S. District Judge William B. Shubb wrote in granting the doctors’ request for a preliminary injunction, citing likelihood they eventually will prevail in court. “Because COVID-19 is such a new and evolving area of scientific study, it may be hard to determine which scientific conclusions are ‘false’ at a given point in time.”

Attorney General Rob Bonta’s office had no immediate response.

Jenin Younes, a lawyer with the Washington, D.C. based New Civil Liberties Alliance, which is representing five of the doctors, said the law “seeks to punish California doctors for giving patients information that departs from the so-called contemporary scientific consensus about COVID.”

She added that it “creates an impossible standard for physicians to follow” and that the judge’s prompt ruling on the temporary injunction following a Monday hearing “no doubt reflects the significance of the constitutional problems the law presents.”

A separate lawsuit also was filed by Robert F. Kennedy Jr. and his Children’s Health Defense organization, which has questioned the COVID-19 vaccines, on behalf of Physicians for Informed Consent.

In urging passage of the law, which was co-sponsored by the California Medical Association, Low told lawmakers that “licensed physicians, doctors, and surgeons possess a high degree of public trust and therefore must be held accountable for the information they spread.”

He said questions publicly raised by licensed physicians in interviews and on social media were undermining public health messaging about the benefits of vaccines and face masks to control spread of the virus that causes COVID-19.

Newsom, in signing the bill, said that he was satisfied the law was “narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient.”

The five doctor plaintiffs include Ram Duriseti, an emergency physician at Stanford and Mills-Peninsula hospitals, and Tracy Beth Høeg. Both are affiliated with the “Urgency of Normal” group that urged the Centers for Disease Control and Prevention to end vaccine mandates and restrictive quarantines in schools.