Washington Physicians Seek Supreme Court Injunction, Claiming 1st Amendment Right to Spread Vax Misinformation

Three physicians licensed in Washington State have disciplinary proceedings pending against them based upon their unfounded public statements about the PCR test for COVID-19 ("inaccurate"), the risk of injury or death from the COVID vaccine, the efficacy of ivermectin and hydroxychloroquine, and the transmissibility of COVID-19 from children.

The physicians have sued the state Attorney General (who represents the Washington Medical Commission) and the chair of the Commission in federal district court, claiming the pending investigations violate their protect speech and due-process rights under the First, Fifth, and Fourteenth Amendments. Their suit is joined by a nonphysician who claims a constitutional right to read and listen to the physicians' misinformation.

District Judge Thomas O. Rice denied the plaintiffs' request for an injunction against the state's enforcement proceedings and granted the state's motion to dismiss the suit for failure to state a claim upon which relief could be granted (Fed. R. Civ. P. 12(b)(6)). See Stockton et al v. Ferguson et al, No. 2:2024cv00071 (E.D. Wash., May 22 2024). The judge ruled that, because the state had not (yet) taken any action against the physician plaintiffs, "Plaintiffs have not shown that they are impeded from otherwise accessing this information, or that Drs. Eggleston and Siler’s speech has been or will likely be chilled by the Commission’s actions." Because the plaintiffs they had not (yet) suffered and were not likely to suffer any harm to a claimed constitutional right, their case was not ripe for judicial consideration. More than that, the judge found  plaintiffs' challenge to the Commission's ability to be completely wrong-headed. The judge ruled that "medical board disciplinary proceedings clearly implicate an important state interest in ensuring adequate healthcare."

On appeal to the Ninth Circuit Court of Appeals, plaintiffs asked for an injunction against the state's enforcement proceedings while their appeal was pending. The Court denied their motion, and on Monday the plaintiffs (represented by, among others, Robert F. Kennedy Jr.) filed an application with the Circuit Justice for the Ninth Circuit, Justice Elena Kagan, against seeking an injunction against the state. Significantly, they asked Justice Kagan not to decide their application but instead to circulate it to the entire court. Stockton et al. v. Ferguson et al., No. 24a440 (filed Oct. 30, 2024), Application at 1.

The plaintiffs' position is clear: "Public speech does not lose its constitutional protection from government action simply because it is uttered by a healthcare professional, even if it is at odds with medical orthodoxy." Id. at 4. The district court's opinion, however, has the better argument:

[T]he Commission may fully regulate professional conduct of physicians licensed to practice in this state.  States may regulate professional conduct, even though that conduct incidentally involves speech.Tingley v. Ferguson, 47 F.4th 1055, 1074 (9th Cir. 2022).  “[C]onduct may indicate unfitness to practice medicine if it raises reasonable concerns that the individual may abuse the status of being a physician in such a way as to harm members of the public, or if it lowers the standing of the medical profession in the public's eyes.”  Haley v. Med. Disciplinary Bd., 117 Wash. 2d 720, 733 (1991).  The Commission’s regulation of medical professionals does not violate the First Amendment.  Accordingly, Plaintiffs’ First Amendment facial challenges or as applied challenges to the Commission’s authority must fail.

COVID-19 misinformation constitutes a clear and present threat to public health and safety. You can read more about it here:

• U.S. Surgeon General: "Health Misinformation" (“Health misinformation is a serious threat to public health. It can cause confusion, sow mistrust, harm people’s health, and undermine public health efforts.”)
• Mayo Clinic, "Debunking COVID-19 myths" (comprehensive collection of myths and why they are wrong)
• Frank Otto, Penn Medicine News, "COVID-19 Misinformation: The Flip Side of ‘Knowledge is Power’" ("An early study estimated that one rumor, which had to do with drinking highly-concentrated alcohol-based cleaning products as a 'cure' for COVID-19, led to more than 5,800 people being hospitalized (with 800 dying) from January through March of 2020 alone")

More later. Meanwhile, Kelsey Reichmann at the Courthouse News Service is doing a good job of following the Stockton case and explaining what's going on.