A group of five licensed physicians filed a lawsuit on Wednesday against Governor Gavin Newsom (D) and the Medical Board of California regarding a law they claimed would violate their First Amendment rights and constitutional right to due process.
Newsom signed the law in September, and it is set to take effect in January. It would allow the Medical Board of California and the Osteopathic Medical Board of California to take disciplinary action against physicians who provide patients with "misinformation" about COVID-19.
The law states, "[I]t 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."
According to the lawsuit, "misinformation" is "false information that is contradicted by contemporary scientific consensus contrary to the standard of care."
The complaint also noted that the governor and state lawmakers select the medical board members. Of the 15 seats on the board, seven are designated for "public members" who are not required to be licensed physicians.
"California's new 'misinformation' law is the result of an increasingly censorious mentality that has gripped many lawmakers in this country," said Jenin Younes, counsel for the New Civil Liberties Alliance, a nonpartisan civil rights firm representing the doctors.
The lawsuit argued that the new state law violates the First Amendment rights of doctors because "it impedes their ability to communicate with their patients in the course of treatment."
The complaint noted that the First Amendment is meant to protect minority opinions.
"Indeed, it is minority views that need protection from government censorship — as this law shows. Nor is there an exception to the prohibition on viewpoint-based discrimination simply because the law applies only to a regulated profession," it said.
Younes stated that the fact that the "shocking" bill was passed into law demonstrates that "far too many Americans do not understand the First Amendment."
The complaint also alleged that "contemporary scientific consensus" is "undefined in the law and undefinable as a matter of logic."
Plaintiff Dr. Tracy Høeg noted that the law "puts physicians who are simply trying to give appropriate and individualized recommendations in a difficult position, particularly considering they may not know what the California Medical Board's 'consensus' is at the moment or if it also evolves as our understanding evolves."
The physicians requested that the court prevent that law from taking effect while the legal proceedings are underway.
"Our country has a strong historical commitment to free and open debate and to protect the ability of those who dissent from the government's view to express their own opinions. We have no doubt that courts will see this unconstitutional law for what it is and strike it down," stated Younes.