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.
35 thoughts on “Is this a valid exception to protected free speech?”
Such a law will inevitably be counter-productive, in that it will allow the conspiracy theorists to claim that the government is lying to everyone and shutting down dissenters. Nothing boosts a conspiracy theory as readily as the suspicion of government censorship!
They don’t have to. As stated above, the law covers spreading “misinformation or disinformation”, where the definition of “misinformation” is merely: “information that is contradicted by contemporary scientific consensus”.
So saying anything contrary to “contemporary scientific consensus” would be professional misconduct. That’s ridiculous.
Are you saying that fraudsters will inevitably claim that the government is committing fraud when shutting them down and therefore anti-fraud laws are wrong?
Seems to me that this law may be redundant since fraud is, presumably, already illegal but perhaps making it explicit for medical fraud has some value.
This is a tough one. The broader part of the legislation regarding policing speech is something I would oppose. (Current consensus changes over time, and it might turn out that the perpetrator was actually doing the right thing.) The “malicious intent” part is more defensible. I might decide that the government should not police malicious speech—that malicious speech should be countered in the marketplace of ideas, the media, web sites, blogs, etc., all the mechanisms we have at our disposal. But malicious “acts” are a different matter. Acts go beyond speech, so aren’t protected by the First Amendment. And malicious acts are already protected in that some malicious acts are criminal and the rest are subject to civil suits. My thinking at the moment is to draw a line between speech (protected) and acts (subject to penalty), thereby gutting this legislation. But I’m really more interested in what other readers think.
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. I believe the word you want here is either authority or right, not write.
Horrible precedent, wrong in many ways and will be counterproductive. Remember that at the beginning of the pandemic, it was medical consensus and official CDC and WHO “fact” that the virus is not spread by aerosols, only by large droplets?
Well, there’s a difference between saying something that you believe to be true on the best evidence so far, and still saying it when the evidence is clear that you were wrong first time around. Anyway, licensing boards/colleges have always had the power to suspend or revoke a license when a physician is practicing poor medicine, as a matter of public safety, and maintaining public confidence – always, and not just in matters pertaining to Covid. If a doctor is cynically prescribing useless treatments, or not bothering to keep up with the current standards of care wouldn’t you want him to be sanctioned in some way?
There are two aspects to this… the medical and the political.
There are certainly doctors (and others) who do not agree with the current COVID consensus. Some will be wrong, some will be partly right, some will become part of a new version of the consensus. Since the consensus changes as matters become clearer it would be wrong to close off medical debate.
In political terms I’m afraid I’m reminded of Lysenkoism (whether the consensus on COVID is true or not). It suits The Powers That Be not to have dissenting views heard. Maybe to protect members of the public… but it is so easy to argue that politicians are protecting themselves from criticism.
For both these aspects I suggest that the bill is poorly thought out. We don’t prosecute astrologers or homeopaths unless they do specific harm to an individual that can be proven in a court of law. Using the Law to supress bad ideas could easily get out of hand – if not for this government then the next.
My feelings exactly. Also, enshrining the current scientific consensus into a law strikes me as very dangerous. The consensus can change and that is what makes science so successful. Trying to freeze it into a law is anti-science.
“Also, enshrining the current scientific consensus into a law strikes me as very dangerous.”
“This has to do with a new California law that punishes physicians who contradict conventional wisdom about Covid-19.”
This is bad law on the face of it—no question. It smacks too much of the Catholic Church’s punishing for heresy, which, we tend to forget, was also justified as a public health measure.
In Canada, each province has a Medical board that regulates doctors and nurses. Without any special laws, but just the fact that as a doctor or nurse you are obligated to follow best medical practices, and you are NOT allowed to hurt your patients a handful of nurses and at least one doctor has had their license suspended. In all cases the doctor or nurse made multiple erroneous (less tactfully, batshit crazy) statements in the official capacity as a doctor or nurse.
Can medical boards in the USA do anything similar? Or are they more about protecting doctors?
The entire purpose of requiring physicians to belong to a guild should be to exclude quacks. The quacks harm not only their own patients, but also the good name of medicine in general, and hence other patients who could have had better care but don’t trust it.
Deciding who is a quack seems pretty hard. It’s not hard to find examples where the entire establishment was dead wrong for decades (like ulcers & H. pylori, or really anything to do with nutrition) and they are certainly wrong about many other things (we just aren’t sure which things). Setting up institutions to do this does seem like an infringement on ideas of individual liberty, why can’t you hire anyone you like for any services (at any price) if nobody else gets hurt? We don’t let the marketplace of ideas run free for (say) cancer treatments, instead we make centralized decisions about what may and may not be done.
So I’m not sure what I think of the speech restrictions here. If you’re a member of this guild, is that like having a high position in a company, where your employer may reasonably ask that you not trash the company’s positions in public? The board can’t lock you up but they can decide you clearly no longer wish to represent the company. Or is the association a looser one, in which you can loudly claim that patients should ignore what the guild prefers… as long as they aren’t your own patients? Is advising them not to take certain drugs speech or action?
And lastly, does it matter to what degree the rules for doctors are set by themselves, vs by the government? What I’m calling a guild is (I think) in reality a number of different bodies, some of them nominally run by and for doctors, but presumably the senior leadership are in practice full-time politicians.
I think that a law like this could be held constitutional with a little bit of tweaking, but it is wrongheaded nonetheless. Especially questionable is the part that defines disinformation to include statements made “with intent to mislead.” There can be innocent explanations for having an intent to mislead and moreover, under the Supreme Court’s “Stolen Valor” case, I do not believe that such a broad definition of disinformation would pass constitutional muster.
It would be better to stick to the model of the perjury statutes, which punish only when there is proof that the speaker knew that the statement was false.
I agree with your opening sentence – it could be held constitutional with a bit of tweaking – but it’s wrongheaded mostly for Coel’s reason in reply #1. It allows conspiracy theorists to say “See, they’re trying to silence us!” Please, can American liberals stop walking right into the same old traps? Soon please? How about now?
“…facts…”!? The longer this Covid dilemma endures, the less factual and more conjectural it becomes. Today we read…tomorrow something entirely different.
Absolutely no. Politicians ruling on science? Under this bill, would Paul Offit’s well reasoned “no” vote at the recent meeting of the fda’s vaccines and related biological products advisory committee meeting put him in violation of the law? Or is a 19-2 vote not considered consensus because everybody did not fully agree? It certainly was enough for the fda to green light the bivalent booster. Dr. Offit has some very reasonable reservations and explains them in a number of interviews such as at https://www.medpagetoday.com/opinion/faustfiles/100026
His explanation and his further elucidation on the nuances of boosters allow me to make an informed decision on getting this shot. I would hate to see doctors discouraged from providing their well considered opinions.
“… creates a precedent where the legislature decides what medical facts are acceptable, and what opinions cannot be uttered….”
In place of “medical facts” substitute:
1) “pedogeological methods”
2) “gender studies”
3) “climate facts”
4) “dietary facts”
5) “IQ statistics”
I realize with a sinking feeling that there is no end to this list.
When free speech (aka the marketplace of ideas) is obliterated by such heinous laws as this, what is left?
An Orthodoxy of the State.
Enforced by executive action including fines and jail.
Orwell would have had a different list. Wait. No. The ‘same’ list.
I wonder whether they will apply a similar approach to (4) “Misinformation” means false information that is contradicted by contemporary scientific consensus contrary to the standard of care to “gender-affirming care” now that the consensus in much of Western Europe is rapidly shifting. And if not, why not?
Though I despise the people this bill is aimed at, it’s a terrible idea. The common wisdom in the medical community is not omniscient – it can be wrong, sometimes agonizingly so. George Washington was likely killed by his doctors following the “contemporary scientific consensus.” They kept bleeding him when he didn’t improve, to the point of draining half the blood from his body. Medical history is filled with similar episodes.
This would be far to easy to politicize, and would any speech control measure.
Wonder how this legislative approach would treat the Barrington declaration and its stated view on COVID lockdowns?
The rabbit hole being ignored is that most/many decisions are based on an economic style rationale i.e. tradeoffs, which impact the net value of “information”.
Would Dr. Martin Kulldorff, Dr. Sunetra Gupta and Dr. Jay Bhattacharya be disciplined if this legislation was to be adopted?
While this legislation is contemplated in liberal California I can only imagine how it could play out in conservative Texas, say, on the regulation of abortion services.
The legislation seems carefully written and appears to be harmless. It does not say that the facts are “determined by the legislature.” Rather, physicians, in treating their patients, may not give out “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” Note that the facts are determined by “contemporary scientific consensus”, not the legislature. The findings of fact preceding the text of the law are a common accompaniment of bills, but they do not constitute a definition of the “contemporary scientific consensus.” The bill does not prevent charlatans or quacks from speaking in public; it only restricts the practice of medicine in familiar ways. It does not bar, for example, “off label” usage of medications. Certain unorthodox usages may rise to the level of malpractice, but actual practice is not the subject of the bill, only what the physician might say to a patient; and any falsehoods must be delivered with malicious intent, i.e. with knowledge by the physician of the falsity.
Thanks for the clarification. I now understand that Section 1 of the bill is not necessarily the declaration of scientific consensus mentioned in Section 2. Section 1 is merely a justification of the bill. So it would be up to whoever controls the physician’s license or a judge in a court to determine what the current scientific consensus was? Another question has to do with disagreements with the consensus that legitimate, science-based doctors may have. An example was given by Jim Batterson in note 11 above. Dr. Offit, obviously a highly respected expert on these matters, seems to disagree with the consensus on the efficacy of the bivalent booster. He’s not a California doctor, but if CA doctor agreed with him, would she be violating the law if she gave her opinion to a patient?
I forgot to mention that although disseminating disinformation is OK if not done with malicious intent, misinformation is not. But, as is the case with Dr. Offit, there may just be disagreement. in giving his opinion, he may think he is giving valid information, though it may be ruled misinformation since it is contrary to the consensus.
But note that the bill is not restricted to when physicians are “treating their patients”, it applies to them “disseminating information” in general.
In other words, in California a physician may not say anything about Covid that is out of line with the “contemporary scientific consensus”. Thus they would not even be allowed to try to persuade their peers that the current consensus is wrong in any respect.
Actually, the word “desseminate” is used in a special way here. Notice section 2.b.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.” So the restriction on doctors is limited to what they say to a patient; no restriction on what they say to their peers or publicly. The only restriction is that, under this bill, a doctor cannot relay to a patient statements that conflict with the scientific consensus on matters related to COVID and the vaccines, however that is determined.
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.
Government enforced groupthink. Presumably this would affect researchers with M.D.s as well as M.D.s on the front lines of treating patients.
How can science advance if researchers cannot voice an opinion outside the scientific consensus?
Hard no from me, too dangerous a precedent. My thoughts immediately turn to affirmative care in gender ideology. Some claim it’s the best current science and it’s dangerous to practice otherwise.
There seem to be two issues here: can the speech of doctors be legally restricted in the public interest?, and if so, who should do the restricting?
In treating a patient, and perhaps in making public statements as a doctor, speech and actions become merged by fiduciary duty in a way they don’t for ordinary speech. A treatment recommendation is given with the intent that the specific patient in front of you, or the public, will follow that advice. So it, as therapy or medical opinion, probably falls outside the realm of protected free speech. The private and public helpfulness of a doctor’s speech can legitimately be considered in whether it should be permitted. This is part of the bargain we make with professional licensing in the public interest. So somebody does get to restrict what doctors can say as doctors. (This is from a Canadian perspective where freedom is speech is more circumscribed for everyone than in America.)
As to the legislature’s interfering in how the regulatory boards go about their work, that would depend on local tradition and the degree to which the Boards operate at arm’s length from the state legislature. In Canada, the provincial lay legislatures enable the self-regulatory “Colleges”—they are not academic institutions—but then stay hands-off about licensing, standards of care and professional misconduct. Any member of the public, including another doctor or an official of the government, not just a patient, can make a complaint about a doctor’s conduct, which the College must investigate free of charge to the complainant, using civil law standards to determine guilt: balance of probability, not guilt beyond reasonable doubt. If a College failed abjectly to police doctors’ conduct in the public interest, the legislature would disband it and regulate us directly, as they do with restaurants and bars that sell liquor. (The Colleges are funded entirely from mandatory dues paid by doctor-members, no public money.)
Malpractice is a separate issue. There must be a named patient with standing as a plaintiff alleging a tort—someone who got severe Covid after being advised not to get vaccinated, say. Colleges don’t make findings of malpractice per se, or award damages.
The climate may be different in California. Doctors there may well be used to state laws by-passing their regulatory boards and dictating to them directly. But isn’t the state a little late to the party? Covid vaccination disinformation is so 2021. Ironically the scientific consensus seems much less monolithic as we head into autumn 2022. The law should raise eyebrows for that reason alone.
As a California physician, I find this bill to be problematic. It is most definitely a slippery slope to other politically contentious medical issues to be “criminalized.” It is interesting that there is no such rule against talking out about other medical issues that are arguably more important (such as vaccination against measles or “alternative” treatments for cancer). This bill appears to only apply to patients under the physician’s care, not to speaking at rallies, going on TV, or writing on the internet. It is not clear how this would be applied. Is saying that requiring masking for 2 year olds has no scientific basis and is opposed by nearly every other country (but not the CDC or AAP) reason to lose your license? Is saying that a 20 year old shouldn’t get a Moderna COVID vaccine due to an increased myocarditis risk (a stance taken by Canada, Finland, and Sweden and clearly seen in the evidence, but not the CDC) cause for action against the physician? Deliberately practicing faulty medicine (medical malpractice) is already a cause for revocation of a medical license in California, the Medical Board of California just rarely enforces the existing rules (see: https://www.latimes.com/california/story/2022-01-07/state-medical-board-seeks-far-reaching-reforms-to-discipline-bad-doctors). This bill seems like political theater to “do something” and actually does little to stop licensed physicians from spreading lies and pseudo-science on social media with the additional problem of possibly snagging up legitimate disagreement at the forefront of medical knowledge.
No, not a good idea, there is too much ‘scientific consensus’ that is no consensus at all. And even actual consensus may, nay does, change over time think for example ‘trans-fats).
This law is a real example of a slippery slope.
agree most emphatically.
for example: state and federal government conducted a cognitive experiment on American children for over 50 years. This was conducted by the supposedly by the ‘scientifically sound professional pedagogic elite.’
They insisted that children could be taught to read by not learning to read. An entire trillion-dollar avalanche was poured into materials and methods of “whole language,” more accurately know as “see and guess.” When challenged, the experts repeatedly claimed “science is on our side and phonics is not reading.” Result: plunging reading and three generations of children half or more illiterate. I am a tutor of adult literacy, and can verify.
This year — only this year! — Brainiac scientists admitted the entire basis was completely wrong. They apologized and surrendered … only after they constructed a new set of methods based (to what extent? I have not seen them yet) on phonics.
I can name three other fields wherein the scientists got it completely wrong, yet stonewalled all through the disasters they created. Climate is not one of them.
Censoring medical information about Covid-19 is a terrible idea: we have discovered and will discover more each month about covid, long covid, vaccine effectiveness and vaccine side effects. And not all of it confirms the early hypothesis we had to use to manage the crisis. Suppression of debate will only delay the discovery of better treatments and destroy trust with scientific processes.
Looks odd from here, where medical staff would be reprimanded for malpractice in their jobs if spreading misinformation but can say whatever they like in media.
However, I do believe their professional organizations kick them out if they spread harmful information that would be against the profession ethical guidelines.