A California judge on Wednesday halted the state’s so-called COVID-19 misinformation and disinformation law, which was challenged by doctors in two lawsuits, claiming it violates their constitutional rights.
In Hoeg v. Newsom, five doctors alleged that the state law, AB 2098, is unconstitutional under the First and Fourteenth Amendments of the U.S. Constitution. A separate related lawsuit, Hoang v. Bonta, makes similar allegations.
Both lawsuits sought a preliminary injunction to prevent California from enforcing the law.
The five doctors, Tracy Hoeg, Ram Duriseti, Aaron Kheriaty, Pete Mazolewski, and Azadeh Khatibi, filed their lawsuit against Gov. Gavin Newsom and other officials, including the president and members of the Medical Board of California.
They argued the law prevents them from providing information to their patients that may contradict what the law permits or prohibits. They also alleged the law was used to intimidate and punish physicians who disagreed with prevailing views on COVID-19.
Judge William Shubb, a George W. Bush appointee, wrote in his ruling (pdf) it was plausible that the medical board would determine their conduct violates AB 2098, and therefore the doctors’ fears are reasonable “given the ambiguity of the term ‘scientific consensus’ and of the definition of ‘misinformation’ as a whole.”
Shubb noted that this weighed in favor of the plaintiffs having standing.
“Because the 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 provision is unconstitutionally vague,” Shubb wrote. “Accordingly, the court concludes that plaintiffs have demonstrated a likelihood of success on the merits of their vagueness challenges.”
The Law
Newsom signed the bill into law in September 2022, and it took effect on Jan. 1, 2023.
The law defines misinformation as “false information that is contradicted by contemporary scientific consensus,” and prohibits physicians from disseminating “misinformation or disinformation related to COVID-19, including 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.”
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