U.S. District Judge William B. Shubb says the law is unconstitutionally vague.
On Wednesday night, a federal judge issued a preliminary injunction against a new California law that makes physicians subject to professional discipline for sharing COVID-19 "misinformation" with their patients. U.S. District Judge William B. Shubb concluded that California's definition of misinformation is unconstitutionally vague, failing to give doctors fair notice of which conduct the statute covers, which is a basic requirement of due process. That vagueness is especially problematic in this context, Shubb said, because it is apt to have a chilling effect on speech protected by the First Amendment.
A.B. 2098, which took effect on January 1, redefines the "unprofessional conduct" policed by state regulators to include medical advice that promotes "misinformation" about COVID-19, such as "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." The law defines "misinformation" as "false information that is contradicted by contemporary scientific consensus contrary to the standard of care."
What does that mean? The plaintiffs in Høeg v. Newsom, who include several California doctors represented by the New Civil Liberties Alliance (NCLA), complained that they had no way of knowing. Shubb agrees, saying the state's definition of misinformation "fails to provide a person of ordinary intelligence fair notice of what is prohibited" and "is so standardless that it authorizes or encourages seriously discriminatory enforcement."
The central problem, Shubb says, is that the phrase "contemporary scientific consensus" has no clear meaning, especially in the context of COVID-19, a new disease that has generated conflicting and evolving scientific opinions. "It appears that the primary term at issue—'contemporary scientific consensus'—does not have an established technical meaning in the medical community," he writes. "Defendants provide no evidence that 'scientific consensus' has any established technical meaning."