'Unconstitutionally Vague': Judge Blocks California's COVID 'Misinformation' Law

Law empowers state to disbar doctors for spreading what it deems outside the 'contemporary scientific consensus'

(Justin Sullivan/Getty Images)
January 26, 2023

A federal judge on Wednesday halted a California law that let the state punish doctors who shared "misinformation" about the coronavirus.

U.S. district judge William Shubb said Assembly Bill 2098, which Gov. Gavin Newsom (D.) signed in September, was "unconstitutionally vague." The law empowers the California Medical Board to reprimand and disbar doctors who disseminate what the state deems to deviate from the "contemporary scientific consensus" on COVID-19. The five physicians who sued to block the law argued that the law violated their First and Fourteenth Amendment rights.

Shubb’s ruling prohibits the state from implementing the law while the case goes to trial. The New Civil Liberties Alliance, which represented the plaintiffs, cheered Shubb’s decision on Wednesday.

The law "creates an impossible standard for physicians to follow," New Civil Liberties Alliance litigation counsel Jenin Younes wrote in a statement, adding that it "would result in silencing physicians who disagree with state orthodoxy."

Critics worried the California law would work like a muzzle, and doctors feared they could lose their license for speaking honestly with their patients. The plaintiffs argued that the "consensus" on COVID has been a moving target from the start. The plaintiffs noted that even top Biden administration officials, including Dr. Anthony Fauci and Centers for Disease Control and Prevention director Rochelle Walensky, repeatedly changed their pandemic guidance.

Shubb echoed these points in his ruling, noting that the state did not provide "evidence that ‘scientific consensus’ has any established technical meaning," and that "the expert declarations they offer are notably silent on the topic."

Even Newsom expressed concern about the bill when he signed it, writing in September that he was "concerned about the chilling effect other potential laws may have on physicians and surgeons who need to be able to effectively talk to their patients about the risks and benefits of treatments for a disease that appeared in just the last few years."