California versus Free Speech on COVID
In July 2021, the Federation of State Medical Boards (FSMB) sent a letter to its component boards:
Physicians who generate and spread COVID-19 vaccine misinformation or disinformation are risking disciplinary action… including the suspension or revocation of their medical license… Physicians… must share information that is factual, scientifically grounded and consensus-driven for the betterment of public health. Spreading inaccurate COVID-19 vaccine information… puts all patients at risk.
This was followed by letters from many state boards to individual physicians carrying the same message. Actions against individual perpetrators, especially those prescribing ivermectin and hydroxychloroquine, followed, sending a chill through the medical community. Dr. Meryl Nass in Maine, for example was suspended after “The medical board… received at least two complaints that Nass was spreading misinformation about the virus on her blog and on Twitter.” Misinformation on Twitter? What sacred lamb will be slain next?
Now, a California Assembly Bill, AB 2098, crafts a statute effectuating the ill-considered FSMB warning. It would dramatically curtail free speech for physicians conveying “misinformation” or “disinformation” on COVID-19 and it lays a foundation, under the guise of health and safety, for far broader intrusion of government suppression of First Amendment liberties.
The bill declares promotion of “misinformation” to be unprofessional conduct:
It shall constitute unprofessional conduct for a physician and surgeon to disseminate or promote 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.
Fauci, Walensky, and gang have misled us about the nature of the virus, a likely gain-of function product of the Wuhan lab; the risks of the virus to children, which are negligible; the prevention of disease by masks; the marginal treatment benefits of remdesivir and potential utility of multiple alternative compounds; the development of the vaccines, which did not include testing of long-term efficacy and adverse effects; and the declining efficacy and uncertain safety of the vaccines, regarding which the CDC has suppressed important data. It may come as a great surprise, therefore, to learn that Fauci and friends are not the targets of this legislation.
The California bill specifies four factors to be considered by the board in disciplining a licensee. Each warrants comment.
Whether the licensee deviated from the applicable standard of care.
The idea of a “standard of care” has roots in medical malpractice law and refers to the treatment of individual patients within a physician-patient relationship. From the inception of American malpractice litigation, there often were two or more schools of practice, each generating its own standard of care. There were geographic differences in the standard of care (not so much today) and different standards for specialists and general practitioners. Today there are multiple guidelines for common conditions that are developed at a pace far too slow for use in a rapidly evolving crisis like COVID. The applicable standard for a new disease such as COVID is a moving target; there may be several or, more likely, none at all. The notion of a single standard is fiction. Furthermore, the suppression of alternative views prevents the natural maturation of treatment practices.
Whether the licensee intended to mislead or acted with malicious intent.
Boards will interpret “intended to mislead” as intentional dissemination of false information that is contrary to the “consensus.” But if the physician believed that the consensus was incorrect, she arguably did not intend to mislead.
Malice is a related issue. The term has different meanings in criminal and civil law, but perhaps no technical meaning at all in the present context. Under the California Civil code section 3294(c)1, describing conditions that would give rise to punitive damages (a very different context), malice is defined as:
…conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
Such a definition would not apply to the average prescriber of alternative treatments. Malice might, however, be imputed to communications from Fauci et al., since they, and only they, are accused of propagating information they knew to be false.
Whether the misinformation or disinformation was demonstrated to have resulted in an individual declining opportunities for COVID-19 prevention or treatment that was not justified by the individual’s medical history or condition.
Is “an individual” any person who might hear or read the forbidden criticism of the COVID-19 vaccination on a Twitter feed? Those banned by Twitter can be grateful to that organization for protecting their licenses.
Because the so-called consensus view recognizes very few exceptions to the jab, presentation of data unfavorable to vaccination to a patient making her decision about treatment could trigger disciplinary action. Unfortunately, omitting discussion of the downside of treatment nullifies informed consent, confounding a fundamental principle in contemporary medical ethics.
Whether the misinformation or disinformation was contradicted by contemporary scientific consensus to an extent where its dissemination constitutes gross negligence by the licensee.
Is contemporary scientific consensus the opinion of Anthony Fauci along with a handful of experts who receive huge grants at his discretion? Was it not a “scientific consensus” that concluded that the COVID-19 virus had not come from the Wuhan virology laboratory? Or that masks were not -- no, they were -- no, maybe they were not -- effective barriers to infection?
The term “scientific consensus” gained currency with Al Gore’s propagation of the idea that nearly everyone with a brain agreed with him about the dangers of global warming. Realistically, in the context of quickly advancing science, like the standard of care, there is no consensus.
The California bill, if adopted, will be among the most brazen attacks on free speech in our time. It says that governmentally awarded privileges may be revoked for criticism of government policy. In modern Newspeak, dissent is labeled disinformation. Could a physicist who thinks that global warming is not a threat be denied access to federal grants in particle physics? Could the government shut down a motorcycle manufacturer who… is a motorcycle manufacturer? Any idea or practice alleged to pose a risk to public safety is vulnerable to such reasoning.
Several challenges to the bill may be viable. First, the statute is almost certainly unconstitutional, inviting litigation under 42 USC 1983. Second, its implicit restriction of the circulation of information may be in conflict with the FDA’s post-marketing regulation and surveillance responsibilities, creating a conflict of state and federal law.
The third solution is for physicians to publish their views, perhaps under pseudonyms, through professionals in other states, or through non-physicians not subject to the law in California.
The best solution, however, would be to add a line or to the prefatory legislative intent language that would clarify that the bill is meant for application to that group of physicians -- the proven misinformationists -- who have mendaciously managed the COVID debacle.
Jim Dillon, MD, is a forensic psychiatrist in Ann Arbor, Michigan.