With the stroke of a pen, Governor Gavin Newsom has all but destroyed the First Amendment rights of healthcare professionals across California.
The newly adopted Assembly Bill 2098 takes California’s routine disregard for the Constitution to new heights, penalizing any medical professional who disseminates “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.”
A blatant attack on free speech, no doubt, but the law also allows a group of unelected medical board members to assume the role of gatekeepers of truth, punishing doctors according to their vague definition of “misinformation.”
“Misinformation,” as defined in the legislation, is any “false information that is contradicted by contemporary scientific consensus.”
As Pacific Legal Foundation attorney Ethan Blevins warned:
Scientific consensus is not as simple as counting heads. ‘Consensus’ will be whatever the medical board deems. And enforcement is almost sure to target specific viewpoints—for example, by targeting doctors who underestimate COVID risks but not doctors who overestimate risks, even though overreaction has serious costs, too.
And with the government now holding the monopoly on scientific truth about COVID, there is little room for anyone to disagree with government experts, who have been wrong before.
New challenges shouldn’t shut down debate
COVID changed life as we knew it. As fear of the novel virus spread like wildfire in the early days of the pandemic, people were all too eager to hand over their trust to the government, which in turn told them to trust the “experts” unquestioningly.
Experts are just people and, as such, are fallible.
In the early days of COVID, the government experts told the public that droplet spread was the dominant means of transmission, but we now know it’s mostly airborne. Likewise, there was a time when we were told that cloth masks were ineffective and unnecessary, then we were told they were essential to mitigating the spread, then we were once again told they were not effective.
Science is rarely settled, and it changes every day—that is the very nature of the scientific method. That is why it is so important to allow the free exchange of ideas and create a climate where scientific discourse can occur without the government shutting it down before it even begins.
Blevins cautioned that this law “will manufacture artificial unanimity, a gravity well that draws science toward a false consensus and a black hole of ignorance.”
History lends credence to his statement.
Can a heretic become a hero?
History is riddled with horrific examples of scientists being condemned and even killed for going against the “contemporary scientific consensus.” Many of them were later vindicated when their heresy was proven to be true.
In 1854, an outbreak of cholera was wreaking havoc on the people who lived in the Soho district of London. The scientific consensus at the time was that the illness was spread through foul odors—a theory that did nothing to curb the problem.
English physician John Snow made a breakthrough discovery when he found that the source of cholera was contaminated water. Everyone in the community relied on a communal pump for all their water needs, which led Snow to take a closer look at the water supply. After relentless urgings, the local government finally agreed to remove the pump, and almost immediately, the outbreak ended.
But he was not met with congratulatory praise; instead, the medical establishment rejected Snow’s theory that cholera spread through contaminated water. It took nearly 30 years for the rest of the scientific community to concede that his theory was correct.
Unlike the California law, London officials did not discipline doctors for offering alternatives to the approved scientific consensus—and thank goodness for that. Without Snow, the cholera outbreak could have been much worse.
Obviously, not every alternative opinion of COVID is accurate. But under the new law, doctors are silenced from even suggesting a theory that goes against the government-approved consensus.
Science without discourse is not science at all. Oddly enough, by condemning what the government calls pseudoscience, they are ignoring the scientific process and engaging in their own form of pseudoscience.
George Orwell, the king of dystopian literature, wrote, “No one can get up much enthusiasm for a government which puts you in jail if you open your mouth.”
The California government won’t put you in jail, but they will reprimand you in ways that could jeopardize your career.
Any doctor found to be spreading mis- or dis-information according to the board’s broad interpretation is guilty of engaging in “unprofessional behavior” and risks losing their medical license and thus their ability to serve their patients and provide for their own well-being.
Worse still, there is no handbook that sets criteria for misinformation so doctors know when they could be found in violation. This will ultimately scare doctors into self-censorship out of fear that they may face disciplinary action.
In a letter PLF sent to Governor Newsom, urging him to veto the bill, Blevins wrote:
“The unintended consequences of the bill’s poor definition of ‘misinformation’ will also undermine the patient-doctor relationship by preventing doctors from offering truthful, candid advice that goes against the orthodoxy and therefore will harm public health.”
Unfortunately, our words fell on deaf ears, as the law was adopted, signaling a war on free speech and truth in health care.
This law is a blatant violation of the First Amendment. The government does not get to silence opinions just because they do not like what is being said—that is a promise guaranteed to every individual by the Constitution.
Aside from the chilling effect this will have on free speech, the law is also entirely unnecessary to protecting public health. California law already disciplines doctors who act unethically or commit malpractice.
AB 2098 gives off the impression of being less about protecting the public and more about seeking retribution against doctors who do not fall in line with the medical board-sanctioned opinions.
Fortunately, there are doctors taking a stand.
Last month, Liberty Justice Center filed suit on behalf of two California doctors who are fighting back against this unconstitutional law.
Daniel Suhr, managing attorney at the Liberty Justice Center, said: “We rely on our doctors to give us their best medical advice, yet the State of California is stopping doctors from doing just that. That’s not just wrong, it’s unconstitutional.”
As our letter conveys, PLF agrees that this law is an affront to the Constitution.
The truth is, we might be wrong about which COVID opinions are correct, and there will be no way of knowing unless doctors are allowed to speak freely and engage in a free exchange of ideas. And this sets a dangerous precedent for any future health crises to come.
As the John Snow case showed us and Blevins summed up, “Indeed, history shows that the scientific consensus has frequently been incorrect and that today’s heretics sometimes become tomorrow’s heroes.”