Here’s a case where one might want to suppress speech in apparent violation of the First Amendment. But after due pondering, I don’t think it’s a good idea. But I waver, as you’ll see, and even though I come down against the bill, as it may be a bad precedent, I am not sure of my stand.
This has to do with a new California law (not yet signed by Gavin Newsom) that punishes physicians who contradict conventional wisdom about Covid-19, with some of that wisdom specified by law. It applies to words, not to actions.
I found this bill through note and links sent by reader Gary, who said this:
I’ve seen very little discussion of California Assembly Bill 2098. The intention of the bill is good, as are many attacks on free speech, but I, and perhaps you, feel that curbing free speech is generally not the best solution. Under AB-2098, passed in the California Assembly and Senate, but not yet signed by the governor, physicians and surgeons would face disciplinary action if they voiced an opinion contrary to certain facts about COVID-19 and the associated vaccines as determined by the legislature. The disciplinary action could include revoking their license to practice. I despise misinformation and disinformation, but the solution in my opinion, is not punishing those who disagree with the scientific consensus. The solution is the spread of solid information, not the attempted squelching of misinformation.I think that this bill is going to the governor’s desk with very little discussion or notice. He has three weeks to sign the bill, but hasn’t made his position public. If you think it’s important, you may want to include it in your website.
But have a look at the text of the bill from the link above:
LEGISLATIVE COUNSEL’S DIGEST
AB 2098, Low. Physicians and surgeons: unprofessional conduct.
Existing law provides for the licensure and regulation of physicians and surgeons by the Medical Board of California and the Osteopathic Medical Board of California. Existing law requires the applicable board to take action against any licensed physician and surgeon who is charged with unprofessional conduct, as provided.
This bill would designate the dissemination of misinformation or disinformation related to the SARS-CoV-2 coronavirus, or “COVID-19,” as unprofessional conduct. The bill would also make findings and declarations in this regard.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
The Legislature finds and declares all of the following:
(a) The global spread of the SARS-CoV-2 coronavirus, or COVID-19, has claimed the lives of over 6,000,000 people worldwide, including nearly 90,000 Californians.
(b) Data from the federal Centers for Disease Control and Prevention (CDC) shows that unvaccinated individuals are at a risk of dying from COVID-19 that is 11 times greater than those who are fully vaccinated.
(c) The safety and efficacy of COVID-19 vaccines have been confirmed through evaluation by the federal Food and Drug Administration (FDA) and the vaccines continue to undergo intensive safety monitoring by the CDC.
(d) The spread of misinformation and disinformation about COVID-19 vaccines has weakened public confidence and placed lives at serious risk.
(e) Major news outlets have reported that some of the most dangerous propagators of inaccurate information regarding the COVID-19 vaccines are licensed health care professionals.
(f) The Federation of State Medical Boards has released a statement warning that physicians who engage in the dissemination of COVID-19 vaccine misinformation or disinformation risk losing their medical license, and that physicians have a duty to provide their patients with accurate, science-based information.
(g) In House Resolution No. 74 of the 2021–22 Regular Session, the California State Assembly declared health misinformation to be a public health crisis, and urged the State of California to commit to appropriately combating health misinformation and curbing the spread of falsehoods that threaten the health and safety of Californians.
I’ve put in bold below the two definitions that make me waver about opposing this bill.
Section 2270 is added to the Business and Professions Code, to read:
(a) 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.
(b) For purposes of this section, the following definitions shall apply:
(1) “Board” means the Medical Board of California or the Osteopathic Medical Board of California, as applicable.
(2) “Disinformation” means misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.
(3) “Disseminate” means the conveyance of information from the licensee to a patient under the licensee’s care in the form of treatment or advice.
(4) “Misinformation” means false information that is contradicted by contemporary scientific consensus contrary to the standard of care.
(5) “Physician and surgeon” means a person licensed by the Medical Board of California or the Osteopathic Medical Board of California under Chapter 5 (commencing with Section 2000).
I’ll have a look, but remember that the scientific consensus changes rapidly, and who is the legislature to determine what the correct “facts” are? And will they then punish doctors for giving out information about diet, etc. that contradicts the legislature? There’s no end to this, and I’m a bit wary of legislating what information is “absolute truth that cannot be contradicted”.
And I stand by my claim that the government should not be in the business of what doctors say about COVID-19, even if it goes against a world of conventional wisdom. This is freedom of speech, even if emitted by a doctor. Or are they allowed only to pronounce on items not related to medicine, or parrot the latest consensus?
It’s a different matter, however, if a doctor acts in a reckless way, violating professional standards like injecting patients with some Trumpian nostrum to cure COVID-19. In that case it is action, not talk, that causes harm, and boards should have the write to examine a doctor’s conduct and, if necessary, punish them or take away their licenses. Likewise, hospitals should be able to fire them. False advertising, too, is illegal, so a doctor is liable to sanction if he or she advertises cures that are known or demonstrated to be bogus. But advertising is not the same as a doctor simply making a pronouncement. Advertising is luring in patients under false pretenses.
Now I am sort of on the fence about this one, for “disseminating information to patients that you know is false, and doing so with malicious intent”, is indeed malpractice. But that’s already covered by the law. How can you prove that a doctor is doing this with “malicious intent or an intent to mislead”?
This is the same distinction that we see between saying hurtful and “harmful” words like “gas the Jews” or “Jews are acquisitive and in a conspiracy to dominate the world”, which is harmful but legal speech, and causing actual physical harm by hitting someone or inciting predictable and immediate violence against them. The one difference is that patients tend to take their doctor’s advice. But sometimes doctors give bad advice, which is why we urge second opinions on serious matters. A doctor may give bad advice, like “you’d be better off having three stents put in now,” but to me that’s not illegal unless the doctor means it maliciously. The doctor must intend to do harm, and carry that out by treating the patient. And intention is what is nearly impossible to prove in this bill.
To me this bill seems good on the face of it, but creates a precedent where the legislature decides what medical facts are acceptable, and what opinions cannot be uttered. Just remember how advice on diet (and smoking) has changed just in my lifetime. Let’s leave this to the consensus of doctors and their professional organizations, and let it apply only to actions, not to words.
I’m sure some readers will disagree with me, and that’s fine. Have your say below. As I said, I’m of two minds about this bill.