It’s never a good sign when governments try to dictate speech.
In 2022, California politicians proved this maxim (again) when they passed AB2098, a law dictating what doctors were allowed to say to their patients.
AB2098 threatened to revoke doctors’ medical licenses for sharing “misinformation” about COVID-19. The law defined “misinformation” as anything “contradicted by contemporary scientific consensus.” Now, if you’re wondering what AB2098 considered “contradictory to contemporary scientific consensus,” so was every California doctor. The law didn’t actually specify what could trigger a doctor losing their license. So, what resulted was a vague, constantly shifting standard that threatened to chill doctors’ free speech and impact the care they gave to patients.
Almost since the beginning of the pandemic, the Liberty Justice Center (LJC) was at the forefront of challenging overbroad, nonsensical, and punitive laws passed in the name of COVID-19. While there were sensible and reasonable steps that needed to be taken to protect people during the pandemic, there were also many harmful laws and policies enacted that served no protection from the virus.
As soon as LJC heard about AB2098, they got to work.
AB2098 was not only unnecessary and poorly constructed, it clearly violated California doctors’ First Amendment rights. As the Wall Street Journal explained:
“[The law empowered] the state medical board to discipline doctors licensed in the state who ‘disseminate misinformation or disinformation’ that contradicts the ‘contemporary scientific consensus.’
“The law grants the board broad discretion to define the scientific consensus and misinformation. Yet seven of the board’s 15 members, who are appointed by the Governor and state lawmakers, aren’t even physicians. The president is an environmental attorney. Another runs a life coaching company.
“As an example of misinformation, a legislative analysis offers the hypothetical of a doctor advising patients to inject themselves with bleach to treat Covid. A doctor who did this could be sanctioned for ‘gross negligence’ and sued for malpractice. But such egregious examples are rare and don’t need a new law to discipline.
“The law’s real purpose is to silence doctors who disagree with the public-health establishment on controversial subjects on which there is substantial disagreement. One example is Covid vaccines for children, which most public-health officials recommend but the science is far from certain.”
Defenders of AB2098 tried to sell it as a shield from rogue doctors using their patients as guinea pigs. But California—like every state—already has numerous, well-constructed laws defending people from such extreme malpractice.
AB2098 was more about preserving narratives than protecting patients.
LJC first learned about AB2098 when the California Policy Center notified them it was making its way through the legislature. As soon as they heard about the bill, LJC prepared a complaint and motion for preliminary injunction if the Governor signed it into law. Then, just four days after Governor Gavin Newsom signed AB2098, LJC filed their injunction in court.
While other organizations eventually filed similar cases, because LJC was monitoring the bill from the start, their case was filed first and was the only one filed in Federal Court. This meant LJC was at the front of the line to argue against the law. This also meant LJC had the surprise support of the ACLU for their case and arguments.
LJC’s case highlighted two main problems with AB2098. First, the law was so vague it was almost impossible for doctors to know what speech was forbidden. Second, the law clearly violated doctors’ First Amendment rights by dictating what they were allowed to tell patients—regardless of the care they provided.
As the case made its way through the courts, it garnered significant attention and support. The Wall Street Journal, Center Square, Washington Times, National Review, Northern California Record and many more outlets covered the case and how extreme the law was. Also, the Ninth Circuit Court of Appeals gave an … icy reception to the state’s arguments.
A year after oral arguments in the Ninth Circuit, California lawmakers recognized they were likely on the losing end in court. So, on October 1st, 2023, they quietly admitted defeat and repealed AB2098.
Because of LJC, it was never enforced once.
LJC has steadily become one of the country’s most reliable defender of people’s rights when governments (at any level) try to trample them. And with their quick and decisive victory with AB2098, they proved once again to be the steady watchdog protecting Americans against whatever government abuse or overreach might come our way.
