Unconstitutional California Assembly Bill 2098 Seeks to Mandate Doctors’

Speech, Professional Opinions, and Interferes with Private Doctor/Patient Relationships

Official government censorship is an egregious violation of our beloved First Amendment and as such is blatantly unconstitutional. Nevertheless, in April 2022 the Biden administration, including the Department of Homeland Security (DHS), apparently undeterred by the Constitution which they all swore to uphold, launched their own (and widely criticized) Disinformation Governance Board (Ministry of Truth). Biden then appointed Nina Jankowicz as its executive director, a bureaucrat with her own lengthy history of pushing many major false disinformation “narratives,� as the head of this new Orwellian Ministry of Truth. If this weren’t so tragic it would be funny. Thankfully, as of May 18, the Ministry of Truth is on “pause.�

Proposed California Assembly Bill 2098 Jumps on the Ministry of Truth Bandwagon

Now, sadly, a similar official government censorship bill has been introduced into the California Legislature, California Assembly Bill 2098 (AB 209.[1] AB 2098 has numerous fatal legal defects and is also founded on several false premises which are recited as “truths.� Essentially, AB 2098 attempts to create a new category of “unprofessional conduct� on the part of physicians and surgeons, which the proposed AB 2098 defines as 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.� (CA AB 2098, Sec. 2, 2270 (a))

First and most obvious, the bill is unconstitutional on its face as it violates the broad freedom of speech and privacy protections afforded by our federal Constitution and by the California Constitution. California doctors enjoy the constitutional protections of freedom of speech along with everyone else. California doctors and patients are also entitled to privacy in their doctor/patient relationships.

Essentially, AB 2098 attempts to create a new category of “unprofessional conduct� on the part of doctors and surgeons, which AB 2098 defines as 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.� (CA AB 2098, Sec. 2, 2270 (a))

Doctors do not forfeit their constitutional rights when they earn their medical degrees. On the contrary, they are well-trained professionals who can deliver considered professional opinions based on their experience, research, and clinical practices with numerous patients. Other doctors may have different considered professional opinions. Professional opinions, of course, sometimes differ. We are all familiar with the “battle of the experts.�

Can you imagine the outrage which would ensue if the California (or any) state bar association tried to label certain legal opinions as “misinformation�? What would happen if the California state bar association decided that lawyers’ legal opinions would henceforth be subject to “content moderation� (a.k.a. censorship), in order to ensure lawyers’ legal opinions were not classified as “misinformation� as determined by the state? The justified outcries would be unceasing.

California doctors should not be subjected to official government censorship either. Legal malpractice and medical malpractice standards are well established throughout the nation. California doctors and their patients do not require -- and certainly don’t deserve -- unelected state or federal bureaucrats condescendingly attempting to determine the “official truth� of what may or may not be classified as “misinformation.� This is particularly true when those same bureaucrats have a track record of being completely wrong on many important matters.

Ms. Nina Jankowicz is one such bureaucrat. Fortunately, as of May 18, she resigned from the Ministry of Truth on May 18, citing death threats.[2] We know very little about Jankowicz, which is another possible reason for such nationwide condemnation over her new role. She’s an author she majored in Russian studies at Jesuit controlled Georgetown University and studied at the Herzen State Pedagogical University in Russia. Her religion and ethnicity are unknown.[3]

What we know with certainty – ironically - Jankowicz is guilty of spreading misinformation. She spewed spurious and defamatory claims (as espoused from Hillary Clinton’s 2016 campaign) against former President Trump accusing him of colluding with Russia. Promoting Trump-Russian collusion propaganda by a Russian-studies major is analogous to promoting the efficacy of face-mask propaganda by a medically trained and non-practicing doctor like Fauci. Anyone can have an opinion. But academic training alone is insufficient when the person making claims provides no hard evidence. To date, neither Jankowicz nor Fauci has produced any evidence whatsoever. However, Trump was exonerated from colluding with Russia.[4] And, face masks don’t work.[5]

Unfortunately, lawsuits ensue when unfounded claims are made. Indeed, many revolve around the “battles of the experts�, where different experts present differing expert opinions. However, there is no basis in American law or society for a government bureaucrat (like Jankowicz), other than the fact-finding judge assigned to that particular case, to declare one expert or the other to be the government-approved version of the truth. And there is certainly no basis to threaten or attempt to silence experts -- including California doctors as suggested in AB 2098 -- with license restrictions or revocations for not supporting a government-approved version of the “truth.�

The Professional Medical Opinions of Doctors are Protected Free Speech

This is not the first time protected free speech and privacy rights of doctors in the doctor/patient relationship was attacked by American government officials who disagreed with those opinions. In fact, one of the most famous free speech and privacy cases of modern times, Griswold, et. al. v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), was just such a case.

In Griswold, a doctor was criminally convicted under a Connecticut statute for counseling a married couple regarding contraception. In reversing the doctor’s conviction, the Supreme Court found that the doctor’s treatments, associations and doctor/patient privacy rights were protected by the penumbras emanating from the First, Fourth, and Ninth Amendments, affirming the principle that the concept of liberty protects personal fundamental human rights.

This conclusion is not startling, and is consistent with California jurisprudence. In Grafilo v. Wolfsohn, 33 Cal.App.5th 1024 (2019), the California court rejected the California Medical Board’s attempt to subpoena a doctor’s patient medical records. The court found that when information about patients’ medical records is sought, California’s constitutional right to privacy places procedural and substantive limits on the California Medical Board’s subpoena power. A similar result was reached in Grafilo v. Cohanshohet, 32 Cal.App.5th 428 (2019).

Most importantly, in National Institute of Family and Life Advocates, dba NIFLA, et. al. v. Becerra, Attorney General of California, et. al., 585 U.S. ___, 138 S. Ct. 2361, 201 L. Ed. 2d 835 (201, the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (“FACT Act�) similarly attempted to impose analogous “content moderation� (i.e., mandatory medical speech) upon health care providers. The FACT Act required pro-life health care clinics to inform patients that free or low-cost abortions were available in California and required the clinics to give the patients a telephone number to call for those services. The United States Supreme Court held that this law was likely an unconstitutional violation of the First Amendment. The Court noted that content-based laws targeting speech based on its communicative content, which compel speakers to speak a particular message, are presumptively unconstitutional. CA AB 2098 is just such a law and is presumptively unconstitutional under National Institute of Family and Life Advocates.

Such content-based speech laws can only be justified if the government proves that they are narrowly tailored to serve compelling state interests (Reed v. Town of Gilbert, 576 U.S. 155 (2015)). The Court also rejected the Ninth Circuit categorization of “professional speech� as not requiring strict scrutiny. The Court expressly stated that “Speech is not unprotected merely because it is uttered by professionals.� Strict scrutiny is applicable. Doctors also obviously have free speech rights, and any interference with doctors’ free speech rights must be strictly scrutinized.

More here
http://www.aflds.org/about-us/issue-briefs/issue-brief-california-assembly-bill-2098