How does California define "disinformation" about COVID-19? Judges disagree, but doctors should know. (2023)

A federal judge this weekthisCalifornia's definition of COVID-19 "misinformation," which can trigger disciplinary action against doctors, is unconstitutionally vague. But in another case involving the same law last month, a different federal judgerefusedthis statement. This outright disagreement underscores the negligence of California legislators in writing this law and the bizarre puzzle doctors would face if they tried to enforce it.

UnderAB 2098, which went into effect on January 1, "It constitutes unprofessional behavior for a doctor 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 'development, safety and efficacy of COVID-19 vaccines'. The law defines "disinformation" as "misinformation that contradicts the current scientific consensus and contradicts the standard of care."

this language,New York TimesReportero Steven Lee Myersto explainIn supposedly unbiased news, it was "strictly tailored" to "handle the waves of misinformation that have been stirred up during the pandemic." Aside from the fact that “addressing misinformation through a ban seems blatantly at odds with the First Amendment, Myers is right to cite A.B. 2098 called "Tight Tailored"?

William B. Shubb, Judge of the United States District Court for the Eastern District of California, doesn't think so. In itpig v. News,Shubb enteredinterim provisionagainst the execution of A.B. 2098 on Wednesday. He said the government's definition of disinformation violates due process rights because it "does not fairly warn a person of ordinary intelligence about the bans" and "is so unusual as to authorize or encourage seriously discriminatory use."

Fred W. Slaughter, judge of the US District Court for the Central District of California, came to a strikingly different conclusion.McDonald contra Lawsonon 12/28 Denial of a restraining order, SlaughterthisThe law was clear enough to give doctors fair warning about what they can say to patients without jeopardizing their licenses.

According to Shubb, California's definition of disinformation is "grammatically incoherent" and incomprehensible. The key problem, he said, is that the phrase "contemporary scientific consensus" does not have a clear meaning, particularly in the context of COVID-19, a new disease that has produced conflicting and shifting scientific opinions. "Because the term 'scientific consensus' is poorly defined," she wrote, "medical whistleblowers are unable to determine whether their intended behavior is inconsistent with scientific consensus and therefore 'what is prohibited by law.'" .

Shubb rejected AB's preferred interpretation of the condition. 2098, which says that the law establishes that disinformation must contain three elements: it is 1) "false information", 2) "contradicts the current scientific consensus" and 3) "contradicts the standard of care". There are several problems with this interpretation.

First, the law says that prohibited advice includes "bad" advice.or misleadingInformation”, which means that they are not limited to statements that are proven to be incorrect. Second, while it is not clear what “current scientific consensus” means, it is hard to imagine that the State Medical Association would conclude that the doctor's statements contradicted that consensus, but were nonetheless true.3. If the "misinformation" is limited to advice that contradicts a "standard of care" already applied by the Medical Association, the law is redundant and adds nothing to existing standards. , the law's careless language makes it clear how these supposedly disparate elements work together.

If lawmakers had intended to ban medical advice that met three different criteria, Shubb said, they could have said so. But they didn't bother to insert the wordmi, or even a comma, between "contrary to contemporary scientific consensus" and "contrary to the standard of care". Did they mean that medical advice contradicts the "standard of care" when it contradicts a government-defined "scientific consensus"? Or did they mean that the advice could contradict "scientific consensus" but still be consistent with "the standard of care"?

Under the first interpretation, A.B. 2098 would redefine the standard of care. With this last interpretation, the one favored by the State, the law would have no effect. As long as doctors stick to the standard of care they should already be following, they won't have to worry about getting in trouble for talking openly about "the nature and risks" of COVID-19, its "prevention and treatment." to express. or vaccines designed to reduce its severity.

Despite all these problems, Slaughter A.B. 2098 (citations omitted):

The definition of the disinformation measure consists of three components: (1) information that is proven to be false; (2) contrary to contemporary academic consensus; and (3) contrary to the standard of care. Although "contrary to standard of care" immediately follows "contrary to current scientific consensus" without a conjunction, in light of California law's definition of "standard of care," the statute is interpreted as the ability, knowledge and care provided by professionals in similar circumstances, the law is clear that the "contrary to standard of care" requirement imposes a duty on the state to demonstrate that a treatment or advice would be considered "wrong" and "contradicts current scientific consensus ". This family the boss must also be injured. Furthermore, as Defendants concede, to the extent that the scientific consensus is not clear, AB 2098 would not create liability since there was nothing to contradict. In other words, to be "disinformation" under AB 2098, the state must show that there is a scientific consensus, that the information provided by a surgeon or physician contradicts it and is demonstrably false, and that the information is related to the treatment provided or counseling a patient. it would be contrary to the skills, knowledge and care that a similar colleague would use in similar circumstances. Accordingly, the Court finds that "disinformation" is not unacceptably vague to the extent that it is, by the wording of the law, a misrepresentation of information that contradicts the current scientific consensus and even contradicts the applicable standard of care.

On this reading, doctors who disagree with anything the Medical Committee considers "scientific consensus" should not fear disciplinary action unless they tell patients something that is "probably false" and against them violates " Assistance Standard". In other words, a doctor is free to contradict "scientific consensus" even if his statements are "proved to be false," as long as his services are "consistent with the skill, knowledge, and care exercised by physicians in similar circumstances." ". But since doctors were already subject to "this familiar pattern," A.B. 2098 makes no new requirements for them, which makes one wonder why lawmakers bothered enacting it.

Despite the state's claim that A.B. 2098 ultimately doesn't change anything, one might expect the app's regulators to question the discourse of doctors who dare to deviate from the "scientific consensus." That transgression can amount to expressing skepticism about the ever-changing advice of health officials like the Centers for Disease Control and Prevention (CDC) on controversial issues like the merits of universal mask-wearing, the usefulness of cloth masks, and the effectiveness of vaccines in preventing disease. spread of COVID-19 and the benefits of vaccination for young, healthy patients who are at very low risk of developing life-threatening symptoms of COVID-19.

Under the state interpretation of A.B. In 2098, the Medical Association could rule that a doctor's advice contradicts "contemporary scientific consensus," which is equivalent to the latest CDC recommendations. The board may also conclude that the doctor's advice was "false or misleading." However, it could find that the doctor's treatment practice met the pre-existing "standard of care" that the state says was established by A.B. 2098. Even if the doctor ultimately retained his license, he would still suffer the embarrassment, expense, inconvenience, and anxiety that accompanies such an examination.

Doctors who want to avoid this ordeal should think twice before offering their honest opinions to their patients. This is how a “chilling effect” works.

Because Shubb concluded that A.B. 2098 is unconstitutionally vague, he did not directly address the claim that he violated the First Amendment. But he noted that "vague laws are particularly objectionable when they 'refer to sensitive areas of First Amendment liberties,' because they 'serve to inhibit the exercise of those liberties.'" Just show that a threat of possible execution will cause you to censor yourself.'"

Two California chapters of the American Civil Liberties Unionpresented an abstractnoMcDonald contra Lawsonwhich raised similar concerns. "AB 2098 arguably exceeds First Amendment protected speech," she said.this. "Specifically, it limits doctors from talking to their patients about certain topics, which limits their ability to communicate."

not a 2002 caseConant x Walters, the United States Court of Appeals for the 9th Circuit, which includes California, ruled 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 contradicted the "scientific consensus as defined by federal officials. "An essential part of medical work is doctor-patient communication," according to the Court of Appeals. "Physicians must be able to speak openly and frankly with patients." This ruling, According to the ACLU report, it “clearly precludes the state from censoring COVID-19-related discussions, medical advice, and medical recommendations unless content-based regulation can withstand scrutiny.”

According to Slaughter, A.B. 2098 is consistent with the First Amendment because it "incidentally overloads speech as a professional rule." She said the law "only requires that a doctor, when treating or advising a patient with COVID-19, not provide verifiably false information that contradicts the prevailing scientific consensus in a way that goes against the standard of care."

That conclusion depends on accepting the implausible reading of A.B. 2098. But Shubb found the interpretation "difficult to justify" based on the wording of the statute. And even if it were accepted, he would not clarify what "scientific consensus" means in this context.

Two federal judges have debated this law and have come to diametrically opposed conclusions about its meaning. Slaughter, who was appointed by President Joe Biden last April after serving as an Orange County state judge for eight years, said the legal definition of disinformation was clear. Shubb, appointed by President George H.W. Bush saw hopeless confusion in 1990. Yet doctors without legal training or legal experience are expected to find out what the law says, knowing that if they get it wrong they are risking their license and livelihood. In these circumstances, self-censorship is prudent and consistent with what the California legislature appears to be trying to accomplish.

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