Opinion: California’s COVID-19 ‘misinformation’ law chills constitutionally protected speech
The New Civil Liberties Alliance, which Columbia University legal scholar Philip Hamburger founded in 2017, cheekily describes itself as “a civil libertarian alternative to the ACLU that actually cares about the rights in the Constitution.” It therefore may seem surprising that two California chapters of the American Civil Liberties Union have joined the NCLA in opposing a new California law that expands the state medical board’s authority to discipline doctors for “unprofessional conduct.
In a federal lawsuit it filed this month on behalf of five California physicians, the NCLA argues that A.B. 2098 is unconstitutionally vague and inconsistent with the First Amendment. The Justice Legal Center, which is representing two other doctors, makes similar claims in a lawsuit it filed last month.
Legislators who supported A.B. 2098 said they were worried that doctors might prescribe ineffective and potentially dangerous treatments for COVID-19. But existing regulations already give California’s medical board the authority to take action against doctors for “gross negligence,” “repeated negligent acts,” “incompetence” and “any act involving dishonesty or corruption.”
The new law, by contrast, makes physicians subject to discipline for sharing their honest opinions regarding COVID-19 if the medical board thinks they deviate from the “scientific consensus,” a term the law does not define. That nebulous standard poses a due process problem, since the law does not give doctors fair notice of which conduct it reaches. It also poses a free speech problem, since it encourages self-censorship.
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