California’s COVID-19 Misinformation Law Blocked by Judge

A federal judge in California on Jan. 25 paused the state’s so-called COVID-19 misinformation and disinformation law that has been 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 14th Amendments of the U.S. Constitution. The 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. A separate related lawsuit, Hoang v. Bonta, makes similar allegations.
The doctors say 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. Both lawsuits sought a preliminary injunction to prevent the state from enforcing the law.
Senior U.S. District 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 the state law 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.”

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