Once again, the U.S. Constitution’s First Amendment is under fire. This time it is doctors spouting false and dangerous information about COVID vaccination and treatment, and others wishing to hear these pernicious misrepresentations. Until now, State Licensing Boards have been the final arbiters of acceptable conduct of its physician-licensees, including what they say. But now, some doctors and listeners want the right to spout and hear dangerous rhetoric -- without interference or oversight from state regulators.
The saga of John Stockton is telling. Stockton was a famous pro-basketball player for the Utah Jazz from 1984-2003. He is also a plaintiff in a pivotal case that will test the tension between the rights of states to regulate the conduct of its physicians and the individual’s rights of free speech. After Stockton retired from basketball in 2003, he took on a variety of business and coaching positions. Sometime around 2021 he turned publicly anti-vaccine, appearing in an anti-vax “conspiracy” documentary posted on Twitter (now “X”) that raised doubt about the gravity of the COVID-19 pandemic and warned against vaccines. The documentary, “Covid and the Vaccine: Truth, Lies and Misconceptions Revealed,” reportedly also features one source claiming that the pandemic was “made up.” Stockton, who has no background in science or medicine, based his opinion on the “significant amount of research” that he, personally, had done.
Stockton’s contrarian COVID-related views spread to masking, and six months later Gonzaga University, Stockton’s alma mater, suspended his basketball season tickets for failing to follow its masking protocol.
Stockton’s next adventures included co-hosting podcasts that featured known anti-vaxxers promoting misguided and dangerous messages. Two physicians espousing views in sync with Stockton’s contrarian positions on COVID are now being investigated by the Washington State Medical Commission (“the Commission”) for publishing false information in print news media and online about the SARS-CoV-2 virus (which causes COVID). As described in Application for Injunction to Justice Elena Kagan:
Dr. Richard Eggleston and Dr. Thomas T. Siler are being prosecuted by the Commission for opinion articles criticizing COVID-19 policies. Eggleston's article appeared in the Lewiston Tribune, and Siler’s in American Thinker.
Last spring Stockton teamed up with Robert F. Kennedy, Jr. (whom he had previously endorsed for President), Kennedy’s Children’s Health Defense organization, the physicians under investigation, and about 50 others (most unnamed), and became their poster-child – all suing for their First Amendment rights to say and to hear whatever they want, including false information dangerous to public health. That the Washington Medical Commission was in the process of investigating the matter didn’t matter a whit. The strategy of the plaintiffs’ attorneys –- including RFK, Jr. -- is to try to peremptorily foreclose the rights of the state (via the Commission) to control its own health and safety practices and personnel, thus pitting states’ rights and public health against personal freedoms.
As stated in the suit:
The Commission regulates physicians to assure accountability and public confidence in the practice of medicine. ECF No. 17 at 5. It investigates “all complaints or reports of unprofessional conduct” against licensed physicians. RCW 18.130.050(2). This includes, as relevant here, complaints alleging “moral turpitude, dishonesty, or corruption relating to the practice of” medicine, and “[m]isrepresentation or fraud in any aspect of” the practice of medicine.
It must be recalled that although the First Amendment is broad, it is not absolute. Besides specified narrow objections, the overarching sentiment still holds that one cannot “shout fire in a crowded theater,” meaning that putting the lives of others in imminent danger is not countenanced. This standard is enunciated in Brandenburg v. Ohio as prohibiting speech which would incite imminent unlawful behavior. Importantly, Supreme Court Justice Robert H. Jackson in his dissenting opinion in Terminiello v. Chicago, memorably said that “the Constitution is not a suicide pact.”
On August 3, 2022, the Commission charged that one of the plaintiffs, Dr. Richard. Eggleston, wrote a newspaper article which “minimized deaths from the SARS-CoV-2 virus, incorrectly asserted that PCR tests for a COVID diagnosis are inaccurate, falsely stated that COVID-19 vaccines and mRNA vaccines are harmful or ineffective and that ivermectin is a safe and effective treatment for COVID-19.”
Under the Brandenburg rule, Eggleston’s false assertions could have been prohibited under the First Amendment, even if his conduct weren’t being investigated by the state medical board. While the dates on which Dr. Eggleston published these articles were unspecified, the Biden vaccine mandate, at least for health care workers, was in effect from January 2022 to March 2022 and several states continued the mandate until the end of that year. Under these circumstances, it could well be argued that Eggleston’s speech was an imminent incitement to unlawful conduct by persuading people not to vaccinate as required
However, the court does not take this route, and the Brandenburg rule (vitiating First Amendment protection) might have had less validity against the equally false and pernicious statements made by other physicians where imminent violation of law was not involved. That includes those by Dr. Thomas Siler on his Internet blog about the risks of contracting COVID-19, the effectiveness of hydroxychloroquine and ivermectin as treatments for COVID-19, the transmissibility of COVID-19 from children, and the safety of COVID-19 vaccines, as well as similar remarks by other physician-plaintiffs.
Instead of weighing the constitutional issues, Judge Thomas Rice of the Eastern District Court of Washington nixed the plaintiff’s request for an injunction on procedural grounds on May 22, 2024, noting that “Plaintiffs Eggleston, Siler, and the unknown Doe physicians have not been sanctioned for their speech by the Commission,” torpedoing the plaintiffs’ strategy of heading off the Commission’s investigation on First Amendment grounds. The fly in the plaintiff’s snake oil is that “while Plaintiffs allege that the Commission’s actions have a chilling effect, Plaintiffs have in fact continued to press their narratives about COVID-19 while Commission proceedings have been ongoing.” In other words, there hasn’t been any chilling, no one has yet prevented the plaintiffs’ from doing their dirty deeds, and they haven’t been harmed, so the complaint fails under the doctrine of “ripeness.”
The thrust of this case is rather different from the usual First Amendment case because it pertains to the powers of a state licensing board to assure that its physicians are “doing no harm,” and this function may include regulating or limiting their speech.
The court goes further. Even as Judge Rice notes that the requirements of ripeness are applied “less stringently in the context of First Amendment claim,” he sounds an ominous warning regarding claims of First Amendment abridgement, holding that even if procedural issues didn’t bar prosecution, “and Plaintiffs had presented a plausible as-applied First Amendment challenge, this Court still could not grant them relief on their First Amendment claims.”
Thus, while RFK, Jr. and his fellow-travelers stand on pure First Amendment law and lore independent of legal constraints, the court reminds us that this issue turns on the powers of the State Licensing Board, and not Free Speech protections:
The Commission’s investigations regulate professional conduct, with only an incidental impact on speech. Although Plaintiffs’ challenges to the investigations arise out of the COVID-19 pandemic, it is within the State’s long-recognized authority to regulate medical professionals, and that authority does not run afoul of the First Amendment... States may regulate professional conduct, even though that conduct incidentally involves speech. (Emphasis added.)
Indeed, the court also clarified that the Commission is charged with regulating physician conduct if such conduct
indicate[s] unfitness to practice medicine… [and] 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. Accordingly, Plaintiffs’ First Amendment facial challenges applied challenges to the Commission’s authority must fail.
Not deterred, RFK, Jr., and co-counsel sought a stay of Judge Rice’s denial of their attempt to end-run any Commission ruling and sought an injunction from Supreme Court Justice Elena Kagan. She declined (sans opinion), allowing Judge Rice’s order to stand.
Still undeterred, off went RFK, Jr. and company to refile before a judge likely to be more sympathetic -- Justice Clarence Thomas -- who conducted a full court review on January 10. While the full court may decide to hear the case, it is unlikely they would reach the merits -- as there are several outs the court can use to kick the decision down the road, most notably the ripeness issue, given that the underlying case is still on appeal.
We can, however, anticipate at some future point that the court will have to tackle this vexing issue: Who has superior rights, the State Commission and licensing boards regulating professional conduct or individuals’ right to practice “free speech?”
Kennedy and company’s application before Justice Kagan offers some insight into the arguments they will make in expected future litigation. Although their main thrust is to argue the sanctity of the First Amendment, ignoring the issue of a state’s power to regulate a physician's rectitude and professionalism, most offensive of all is their misstating the effectiveness of vaccination. Embedded within their application to secure Supreme Court review is the defense of the plaintiff’s misinformation -- on the grounds that they claim it was true! Here are some snippets:
Of course, we now know the Covid shots provided either limited or no immunity (i.e. people got infected with Covid despite having taken the recommended shots and boosters), or at best, short-term immunity (as stated by Eggleston), and that the shots never did stop the transmission of Covid, even if the CDC and medical authorities “hoped” that it might stop transmission. See, e.g., the Congressional testimony of Deborah Brix [sic] at https://www.c-span.org/video/?c5021092/dr-birx-knew-natural-covid-19-reinfections- early-december-2020 (starting at around 4:00 minutes) where she admitted that there was no evidence that the shots would stop transmission but it was their “hope.”
Actually, the facts are not as presented. At the hearing referenced by the plaintiffs, Congressman Jim Jordan tried repeatedly to impugn the effectiveness of the COVID vaccines, with leading questions like, “Did people who were vaccinated become infected?” and “Did people who were vaccinated die?” Of course, they did: We were in the throes of a horrendous pandemic, and no vaccine is a hundred percent effective. The annual flu vaccines, for example, have efficacy in the range of 20-60 percent, so a fraction of vaccinees becoming infected and dying (not from the vaccine, but from community infection) is not unexpected. As to the benefits derived from the COVID vaccines, just in the first two years of vaccination, the cumulative effects are estimated to have prevented more than 18 million additional hospitalizations and more than 3 million additional deaths.
Jordan continued his broken-record mantra, repeatedly claiming the government was “guessing, lying, or hoping” about the ability of the vaccines to prevent infection or transmission. Either because of ignorance or misunderstanding, or purposely lying to hammer home a (false) point, it was Jordan, not Birx, who got it wrong.
By mid-December 2020, when the FDA’s Vaccines and Related Biological Products Advisory Committee reviewed the Agency’s publicly available summaries of the Pfizer/BioNTech and Moderna COVID vaccines, the vaccines had been successfully tested in extensive placebo-controlled clinical trials with 30,000 human subjects and over 10,000 controls (who received a placebo). The COVID vaccine was extraordinarily safe and effective. In fact, the efficacy was greater than 90% against the original Wuhan COVID variant circulating in 2019 and 2020. (1)
No matter what Mr. Jordan thought, or said, and no matter what the plaintiffs asserted (and repeated), the vaccines were and continue to be life-saving (2). Even the plaintiffs’ “truth” is false -- but they will resort to anything to undermine life-saving vaccination. They mischaracterize the issue as a free speech matter when, in reality, this case involves concerns over the professional (mis)conduct of physicians and abuse of their power when attempting to convince and persuade a scientifically illiterate public to take actions that would harm themselves and public health. And while the plaintiffs characterize their speech as “opinions” which are at odds with the medical mainstream, these are not political opinions as contemplated by the founders, but rather misstatements of proven scientific facts, with the potential to cause imminent harm.
Endnotes:
- Efficacy was measured by a vaccine’s ability to prevent (1) a positive PCR test for the virus and (2) at least one symptom. Those two criteria constitute a measure of infection and transmission.
- We anticipate that the Ninth Circuit will find that the Commission was correct in sanctioning physicians who denigrated vaccines or counselled against their use such that they were guilty of unethical behavior.
