How Does California Define COVID-19 'Misinformation'? Judges Disagree, but Doctors Are Expected To Know.

This week, a federal judge said California's definition of COVID-19 "misinformation" that can trigger disciplinary action against physicians is unconstitutionally vague. But in another case involving the same law last month, a different federal judge rejected that claim. That stark disagreement highlights the California State Legislature's carelessness in drafting this statute and the speech-chilling puzzle that doctors would face in trying to comply with it.

Under A.B. 2098, which took effect on January 1, "it shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information" about "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."

That language, New York Times reporter Steven Lee Myers avers in what is supposedly an evenhanded news story, was "narrowly tailored" to "address the waves of misinformation that have churned through the course of the pandemic." Leaving aside the point that "address[ing]" misinformation by prohibiting it seems blatantly inconsistent with the First Amendment, is Myers right to describe A.B. 2098 as "narrowly tailored"?

William B. Shubb, a judge on the U.S. District Court for the Eastern District of California, did not think so. In Høeg v. Newsom, Shubb issued a preliminary injunction against enforcement of A.B. 2098 on Wednesday. He said the state's definition of misinformation violates the right to due process because it "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."

Fred W. Slaughter, a judge on the U.S. District Court for the Central District of California, reached a strikingly different conclusion in McDonald v. Lawson on December 28. Rejecting a motion for a preliminary injunction, Slaughter said the law was clear enough to give physicians fair notice of what they can say to patients without jeopardizing their licenses.

As Shubb saw it, California's definition of misinformation is "grammatically incoherent" and unintelligible. The central problem, he said, 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. "Because the term 'scientific consensus' is so ill-defined," he wrote, "physician plaintiffs are unable to determine if their intended conduct contradicts the scientific consensus, and accordingly 'what is prohibited by the law.'"

Shubb rejected the state's preferred interpretation of A.B. 2098, which reads the law  as requiring that misinformation include three elements: It is 1) "false information" that is 2) "contradicted by contemporary scientific consensus" and 3) "contrary to the standard of care." There are several problems with that interpretation.

First, the law says prohibited advice includes "false or misleading information," which means it is not limited to statements that are demonstrably wrong. Second, while it is not clear what "contemporary scientific consensus" means, it is hard to imagine a situation in which the state medical board would conclude that a physician's statements contradicted that consensus but were nevertheless true. Third, if "misinformation" is limited to advice that is contrary to a "standard of care" that the medical board already was applying, the law is superfluous, adding nothing to pre-existing regulations. Fourth, the law's sloppy language makes it unclear how these supposedly distinct elements interact.

If legislators meant to prohibit medical advice that meets three separate criteria, Shubb noted, they could have said that. But they did not bother to insert the word and, or even a comma, between "contradicted by contemporary scientific consensus" and "contrary to the standard of care." Did they mean to say that medical advice is contrary to "the standard of care" whenever it contradicts a state-defined "scientific consensus"? Or did they mean that advice can contradict the "scientific consensus" but nevertheless be consistent with "the standard of care"?

Under the first interpretation, A.B. 2098 would be redefining the standard of care. Under the latter interpretation, the one favored by the state, the law would accomplish nothing. As long as doctors adhered to the standard of care they were already supposed to follow, they would not have to worry that they could get into trouble for candidly expressing their opinions about "the nature and risks" of COVID-19, its "prevention and treatment," or vaccines aimed at reducing its severity.

Despite all of these problems, Slaughter accepted the state's reading of A.B. 2098 (citations omitted):

The measure's definition of "misinformation" is comprised of three components: (1) demonstrably false information; (2) contradicted by contemporary scientific consensus; and (3) contrary to the standard of care. Though "contrary to the standard of care" immediately follows "contradicted by contemporary scientific consensus" without a conjunction, construing the statute in light of California law's established definition of "standard of care" as the skill, knowledge, and care exercised by practitioners under similar circumstances, it is apparent from the statute that the "contrary to the standard of care" requirement imposes a burden on the state to demonstrate that treatment or advice which would otherwise qualify as "false" and "contradicted by contemporary scientific consensus" must be additionally violative of that familiar standard. Moreover, as Defendants concede, to the extent a scientific consensus is unclear, AB 2098 would not impose liability because there is nothing to contradict. In other words, to be "misinformation" under AB 2098, the state must show that a scientific consensus exists, the information provided by a surgeon or physician both runs contrary to it and is demonstrably false, and providing that information in the context of treatment or advice to a patient would be contrary to the skill, knowledge, and care exercised by a like colleague in similar circumstances. Accordingly, the court finds "misinformation" is not impermissibly vague, in that it requires, by its statutory text, a false statement of information that is contradicted by contemporary scientific consensus, which further runs afoul of the applicable standard of care.

Under this reading, physicians who dissent from whatever the medical board deems to be the "scientific consensus" need not worry about disciplinary action unless they tell patients something that is "demonstrably false" and also violate the "standard of care." To put it another way, a doctor would be in the clear if he contradicted the "scientific consensus," even if his statements were "demonstrably false," as long as his services were consistent with "the skill, knowledge, and care exercised by practitioners under similar circumstances." But since physicians already were subject to "that familiar standard," A.B. 2098 does not impose any new requirements on them, which makes you wonder why the legislature bothered to pass it.

Despite the state's claim that A.B. 2098 ultimately changes nothing, regulators charged with enforcing the law can be expected to scrutinize the speech of doctors who dare to depart from the "scientific consensus." That transgression might amount to expressing skepticism about ever-shifting advice from public health agencies such as the Centers for Disease Control and Prevention (CDC) on contentious issues such as the merits of universal masking, the utility of cloth masks, the effectiveness of vaccines in preventing the spread of COVID-19, and the benefits of vaccination for young, healthy patients who face a very low risk of life-threatening COVID-19 symptoms.

Under the state's interpretation of A.B. 2098, the medical board could decide that a doctor's advice contradicted the "contemporary scientific consensus," which it might equate with the CDC's latest recommendations. The board might also conclude that the doctor's advice was "false or misleading." It nevertheless could decide that the doctor's treatment practices met the pre-existing "standard of care," which according to the state was not changed by A.B. 2098. Even if the doctor ultimately kept his license, he would still suffer the embarrassment, cost, inconvenience, and anxiety that such an inquiry entails.

Physicians who want to avoid that ordeal would have to think twice before offering patients their honest opinions. That is how a "chilling effect" works.

Because Shubb concluded that A.B. 2098 is unconstitutionally vague, he did not directly address the claim that it violates the First Amendment. But he noted that "vague statutes are particularly objectionable when they 'involve sensitive areas of First Amendment freedoms' because 'they operate to inhibit the exercise of those freedoms.'" To show standing in this context, he said, "a plaintiff 'need only demonstrate that a threat of potential enforcement will cause him to self-censor.'"

Two California chapters of the American Civil Liberties Union filed a brief in McDonald v. Lawson that raised similar concerns. "AB 2098 undoubtedly reaches speech protected by the First Amendment," they said. "It expressly limits the ability of physicians to speak about certain topics to their patients and thereby restricts their ability to communicate."

In the 2002 case Conant v. Walters, the U.S. Court of Appeals for the 9th Circuit, which includes California, held that the federal government violated the First Amendment when it threatened to revoke the prescribing privileges of doctors who recommended medical marijuana to their patients—advice that was contrary to the "scientific consensus" as federal officials defined it. "An integral component of the practice of medicine is the communication between a doctor and a patient," the appeals court said. "Physicians must be able to speak frankly and openly to patients." That decision, the ACLU brief said, "plainly forecloses the State from censoring physicians' discussion, medical advice, and recommendations related to COVID-19 unless the content-based regulation can meet strict scrutiny."

In Slaughter's view, A.B. 2098 is consistent with the First Amendment because it "incidentally burdens speech as a regulation of professional conduct." He said the law "only requires that, while administering medical treatment or advice to a COVID-19 patient, a doctor avoid providing demonstrably false information that is contradicted by the prevailing scientific consensus in [a] manner violative of the standard of care."

That conclusion hinges on accepting the state's implausible reading of A.B. 2098. But Shubb thought that interpretation was "hard to justify" based on the text of the law. And even if it were accepted, he said, it would not clarify what "scientific consensus" means in this context.

Two federal judges considered this statute and arrived at diametrically opposed conclusions about what it means. Slaughter, who was appointed by President Joe Biden last April after serving as a state judge in Orange County for eight years, thought the law's definition of misinformation was clear. Shubb, who was appointed by President George H.W. Bush in 1990, saw a hopeless muddle. Yet physicians without legal degrees or judicial experience are expected to figure out what the law requires, knowing that they are risking their licenses and livelihoods if they guess wrong. In those circumstances, self-censorship is both prudent and consistent with what California legislators apparently were trying to achieve.