“It’s Not Clear What We Are and Aren’t Allowed to Say”

(p. B1) When Gov. Gavin Newsom signed into law a bill that would punish California doctors for spreading false information about Covid-19 vaccines and treatments, he pledged that it would apply only in the most “egregious instances” of misleading patients.

It may never have the chance.

Even before the law, the nation’s first of its kind, takes effect on Jan. 1 [2023], it faces two legal challenges seeking to declare it an unconstitutional infringement of free speech. The plaintiffs include doctors who have spoken out against government and expert recommendations during the pandemic, as well as legal organizations from both sides of the political spectrum.

“Our system opts toward a presumption that speech is protected,” said Hannah Kieschnick, a lawyer for the Northern California branch of the American Civil Liberties Union, which submitted a friend-of-the-court brief in favor of one of the challenges, filed last month in U.S. District Court for the Central District of California.

That lawsuit and another, filed this month in the Eastern District of California, have become an extension of the broader cultural battle over the Covid-19 pandemic, which continues to divide Americans along stark partisan lines.

. . .

(p. B5) The plaintiffs in California have sought injunctions to block the law even before it goes into effect, arguing that it was intended to silence dissenting views.

One of them, Dr. Tracy Hoeg, a physician and epidemiologist who works in Grass Valley, near Sacramento, has written peer-reviewed studies since the pandemic began that questioned some aspects of government policies adopted to halt the spread of Covid-19.

Those studies, on the efficacy of masks for schoolchildren and the side effects of vaccines on young men, exposed her to vehement criticism on social media, she said, partly because they fell outside the scientific consensus of the moment.

She noted that the medical understanding of the coronavirus continues to evolve, and that doctors should be open to following new evidence about treatment and prevention.

“It’s going to cause this very broad self-censorship and self-silencing from physicians with their patients because it’s not clear what we are and aren’t allowed to say,” said Dr. Hoeg, one of five doctors who filed a challenge in the Eastern District. “We have no way of knowing if some new information or some new studies that come out are accepted by the California Medical Board as consensus yet.”

. . .

Dr. Jeff Barke, a physician who has treated Covid patients at his office in Newport Beach in Southern California, said the law was an attempt by the state to impose a rigid orthodoxy on the profession that would rule out experimental or untested treatments.

Those include treatments with ivermectin and hydroxychloroquine that he said he had found to be effective at treating the coronavirus, despite studies suggesting otherwise. “Who determines what false information is?” he said.

. . .

“What comes next?” he said. “How I talk to patients about cancer? How I talk to patients about obesity or diabetes or asthma or any other illnesses? When they have a standard of care that they think is appropriate and they don’t want me going against their narrative, then they’ll say Barke’s spreading misinformation.”

For the full story, see:

Steven Lee Myers. “Law to Stem Medical Misinformation Is Facing a Free Speech Challenge.” The New York Times (Thursday, December 1, 2022): B1 & B5.

(Note: ellipses, and bracketed year, added.)

(Note: the online version of the story has the date Nov. 30, 2022, and has the title “Is Spreading Medical Misinformation a Doctor’s Free Speech Right?”)

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