Judge halts California’s COVID misinformation law

A federal judge has temporarily halted California’s new misinformation law that restricts the advice doctors can give patients about COVID-19.

U.S. District Senior Judge William B. Shubb of the Eastern District of California granted a preliminary injunction against the law on Wednesday, responding to a lawsuit brought by five doctors.

The law empowers the Medical Board of California to discipline physicians who disseminate misinformation at odds with the “contemporary scientific consensus” about COVID-19.

The plaintiffs successfully showed the impossibility of enforcing the “unconstitutionally vague” statute because the language has no settled legal meaning or “objective standards” to guide application, Judge Shubb wrote. His ruling bars officials from enforcing the law while the case goes to court.

“Moreover … 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,” wrote Judge Shubb, a President George H.W. Bush appointee.

The offices of California Gov. Gavin Newsom and Attorney General Rob Bonta, both Democrats named as defendants in the lawsuit, did not respond immediately to requests for comment.

In a signing statement appended to the law on Sept. 30, Mr. Newsom acknowledged it could have a “chilling effect” on free speech. But he said lawmakers had carefully drafted it to deal with abuses and entrusted its interpretation to the Medical Board of California.

The law, he wrote, “is 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 under their care.”

The statute provides that it “shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.”

The law, A.B. 2098, authorizes the Medical Board of California to sanction and revoke the licenses of doctors it deems to be in violation.

At least three different groups of doctors have filed federal lawsuits challenging the statute.

Judge Shubb’s ruling applies to a complaint that Drs. Tracy Hoeg, Ram Duriseti, Aaron Kheriaty, Pete Mazolewski and Azadeh Khatibi filed on Nov. 1. The New Civil Liberties Alliance, a legal group that advocates for constitutional freedoms, is representing them.

In testimony appended to the complaint, Dr. Hoeg said the law may interfere with physicians’ “duty to give accurate information to our patients” as new COVID-19 variants emerge, as has happened several times since the coronavirus first emerged in China in late 2019.

In a tweet on Wednesday night, Dr. Kheriaty welcomed Judge Shubb’s decision to let the suit proceed.

“The ruling bodes well for our case,” Dr. Kheriaty tweeted. “It indicates that our arguments that this law is unconstitutional have strong pre-trial facial plausibility. Not to get ahead of ourselves, of course, or try to predict the final outcome of the case, but this is a very positive development.”

For more information, visit The Washington Times COVID-19 resource page.