Hoeg, et al. v. Newsom, 22-cv-1980 (E.D. Cal.); Hoang, et al. v. Attorney General, 22-cv-0214 (E.D. Cal). Order and opinion issued January 25, 2023.
California doctors have alleged that California elected and appointed officials may violate rights protected through 42 U.S.C. Section 1983 by threatening enforcement of a California statute prohibiting the provision of ‘misinformation’ or ‘disinformation’ relating to scientific knowledge and standards, particularly where terms are vague and standards are susceptible of rapid change.
California enacted legislation prohibiting physician dissemination of “misinformation,” defined as false information contrary to scientific consensus. The statute also prohibits intentional dissemination of misinformation, characterized as “disinformation.” Both such offenses must occur in the context of the patient-physician relationship. Violations re considered unprofessional conduct subject to disciplinary action.
The federal district court for the Eastern District of California has observed that plaintiffs’ claims implicate First Amendment “chilling effect” concerns, favoring standing, particularly where self-censorship is implicated.
Standing is liberally construed where statutory vagueness implicates First Amendment interests, as the Supreme Court has held that “the Constitution protects the right to receive information and ideas…” (citation omitted).
This means that even if a statute does not apply to a person, if the statute interfrers with a right to receive information, standing to challenge that law exists.
Because the members of the associational plaintiffs would have standing to sue individually, the associations have standing.
Unconstitutional vagueness may be found where a statute leaves a speaker in doubt as to what is prohibited, thereby inhibiting speech.
The California statutory scheme provides that violation of the dissemination of misinformation/disinformation standards could be found where the information in issue could be outside “contemporary scientific consensus,” but the court found those terms to be vague as lacking in established meaning, leaving providers to guess what is prohibited. This is especially so, the court observed, where “scientific consensus” is not fixed but is rapidly changing, subjecting providers to all the more heightened guesswork.
The court noted that precedent indicates that “the changing nature of a medical term’s meaning is evidence of vagueness.” Slip op. at 24. Forbes v. Napolitano, 236 F.3d 1009, 1012 (9th Cir. 2000).
While no objective meaning of a statute’s term can be found, as is observed of “misinformation,” it is likely that a vagueness challenge will prove successful.
The inclusion of reference to a “standard of care” compounds confusion rather then providing clarification that might save the statute from a vagueness challenge. Slip op. 15 26, n. 9. Even if plausibly comprehensible, the statute improperly conflates advice, information and treatment. Id.
The falsity required to find a disinformation violation is likewise constitutionally defective, the court observed, where what is “settled” is rarely so.
This separate ‘falsity’ element of the statute, even if it were to offer truthfulness as a defense, fails where “drawing a line between what is true and what is settled by scientific consensus is difficult, if not impossible,” the court has opined. This is particularly so, the court noted, where evidence and inquiry is rapidly changing, as in pandemic conditions. Slip op. at 27.
Any limiting construction proffered fails to save the statute, the court has observed, as the proffered construction would require rewriting the statute.
In granting a preliminary inunction against enforcement of the statute pending resolution on the merits, the court cautioned that its ruling was confined only to the Section 1983 vagueness challenge, and was not intended to reach the merits of the First Amendment claims.
Justlawful note: If the court did not reach the First Amendment issues here, it is not unfair to say the court came fairly close to so doing. The court may have its own reasons for guardedness: perhaps it was to dissuade an interlocutory appeal.
Justlawful Copyright Note: Justlawful very much hopes that Robert Palmer, if he were alive, would consider a citation to his 1978 recording, written by Moon Martin, to be a compliment rather than an infringement,. Should that hope fail, Justlawful would argue that this limited reference to a well known lyric would be fair use.
Hoeg, et al. v. Newsom and Hoang, et al. v. Attorney General Opinion January 25, 2023