In 2022, California passed Assembly Bill (“AB”) 2098, a statute providing that “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”. 

Under the statute, misinformation was to be understood as false information contradicted by contemporary scientific consensus contrary to the standard of care. The statute took effect on 1 January 2023.

A group of physicians licensed by the Medical Board and some organizations representing the interests of doctors and patients brought action against the Governor of California alleging that the above statute was in breach of their First and Fourteenth Amendments rights (i.e., free speech and equal protection rights). They stated that in a number of circumstances they had provided advice and treatments contrary to public health recommendations (e.g., they had informed patients about the flaws in the research supporting universal masking or vaccines and boosters) and that they intended to continue providing such advice and treatment to patients in the future since they believed it was consistent with the standard of care required by their profession. However, plaintiffs’ beliefs about their conduct did not preclude the finding that their conduct violates the challenged statute. Accordingly, they filed suit claiming that the statute was unconstitutional.

The Court noted that, as alleged by plaintiff, the phrase “contemporary scientific consensus” – a concept which defined the unlawful conduct relevant under the disciplinary provision of the statute – lacked any established meaning within the medical community and the statute provided no clarity on the term’s meaning. This was all the more so in the context of the pandemic, given that throughout the course of the latter, scientific understanding of the virus has rapidly and repeatedly changed so that no true consensus exists. That being so, the Court concluded that “the term scientific consensus lacks a sufficient statutory definition, narrowing context, or settled legal meaning and fails to provide sufficiently objective standards to focus the statute’s reach, rendering definition of “misinformation” unconstitutionally vague”. As a consequence, the Court upheld plaintiffs’ request for preliminary injunction and enjoined the Government of California to enforce the challenged statute against plaintiffs, plaintiffs’ members, and all persons represented by plaintiffs (i.e., doctors in general). This means that doctors cannot be sanctioned for having allegedly disseminated misinformation about covid-19.

Reference: Hoeg et al. v. Newsom (Governor of the State of California) et al., Eastern District Court of California, 25 January 2023.

Full text of the decision available at en