California’s Tyrannical Covid ‘Misinformation’ Law

T he term “misinformation” has been bandied about by many, especially on the left, as a threat to the Republic. Donald Trump may have popularized the term “fake news,” but most recently the charge of “misinformation” has emerged from the Covid-19 pandemic. Policy-makers have proposed many ways to confront the problem, but Governor Gavin Newsom’s recent legislation is by far the most aggressive, oppressive, and — yes — fascist of them all.

Newsom this past week signed A.B. 2098, a California bill intended to stop the spread of misinformation regarding the coronavirus pandemic. Stating that Covid-19 remains a public-health emergency, the legislature declared the following:

It shall constitute unprofessional conduct for a physician and surgeon to disseminate 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.

At first glance, this sounds reasonable. Shouldn’t the state try to guarantee that physicians communicate only facts and evidence to their patients?

The problem arises as soon as the rubber meets the road. The state has not designated any objective body to make these determinations. So who decides what is false evidence or misleading data? Some government bureaucrat? The CDC? The editorial boards of peer-reviewed journals? Say someone asserts that vaccines have been studied far less extensively in children than in adults. This is an objective truth. But what if a California official decides that this reasonable statement is one that undermines faith in vaccines? What if the CDC or some other public-health entity determines that they themselves were wrong about a supposed fact — will they get the blame? Where will physicians tried under this law go to recover their smeared reputations in that setting?

Violators of the law would be subject to disciplinary actions from the Medical Board of California or the Osteopathic Medical Board of California, the two professional entities responsible for establishing guidelines and imposing sanctions on physicians in the state. There appears to be no significant appeals process.

In a statement issued before signing the bill, Newsom said he believed the statute’s language “is narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care.”

That is simply not true, and any intelligent person can see the problems almost immediately. Virtually the entirety of the law is quoted above, and there is nothing narrow in the language therein. Anything the state deems as “false or misleading” is sanctionable. Any utterance that so much as refers to Covid-19 and that the state does not approve of is theoretically punishable by the force of law.

Opposition to the law has been bipartisan. Liberal activist Dr. Leana Wen wrote a biting column in the Washington Post in June, explaining why the bill is so dangerous.

While well-intentioned, this legislation will have a chilling effect on medical practice, with widespread repercussions that could paradoxically worsen patient care. . . .

The problem is that medical practice is rarely black and white. Much of the time, broad recommendations are intended to be tailored to the individual patient. . . .

Indeed, another lesson from covid is that science is constantly evolving. In a public health emergency, official guidance often lags cutting-edge research. Consider how long it took the CDC to acknowledge that the coronavirus is airborne. Should doctors have been censured for recommending N95 masks before they were accepted as an effective method for reducing virus transmission?

Wen’s concerns go to the heart of the matter. The law is so vague, and the science is evolving so quickly, that any physician would be concerned about saying anything. The CDC and Dr. Anthony Fauci have switched positions on the “facts” of the pandemic rapidly, sometimes from day to day. No practicing physician could follow the flip-flops from our so-called experts closely enough to feel certain of following the “science,” as established on a given day.

Wen is also correct in stating that this isn’t the first time an overbearing government has restricted the speech of physicians and interfered in the doctor–patient relationship. The Trump administration’s restriction on the Title X family-planning program, labeled by critics as a “gag rule,” would have prohibited physicians who received federal Medicaid money from making abortion referrals and counseling about pregnancy options including abortion. The program excluded agencies that provide abortions using non-federal dollars from receiving any Title X funds.

The irony is that Trump’s gag rule was also certainly a limit on free speech, but it was in many ways less intrusive than Gavin Newsom’s new law. The federal rule change would have certainly limited federal funds to these clinics, but at no time did the administration consider imposing rules that would literally punish physicians and possibly place sanctions on their medical licenses for violating the speech limits. In fact, the Newsom law is most akin to the widely criticized Florida gag rule preventing discussions about gun possession and safety between Florida’s doctors and their patients.

Newsom’s assertions that the bill is narrowly tailored and limited in scope are absolute lies. The law largely leaves the definition of “misinformation” up to the state, and leaves the scope of powers to sanction physicians under the law with medical boards. There is no limitation on the scope of powers they can use against physicians; the bill does not provide physicians with any significant recourse, other than those already provided to them by their medical boards.

Beyond the clear violation of the doctor–patient relationship as well as the First Amendment’s protections of freedom of speech, the biggest flaw of this bill is that it will hinder debate and the advancement of science itself. The ability to openly and honestly communicate is one of the fundamental aspects of the scientific method. California is implying that such openness is inherently harmful and is willing to enforce legal punishments in order to stop free expression.

Newsom’s arrogance is particularly galling given that he himself repeatedly flip-flopped on the science involved with Covid-19. Early on, he and his fellow California Democrat, House speaker Nancy Pelosi, were saying that travel restrictions were unnecessary to stop the spread of the virus, that masks were superfluous, and that California had the infection under control. Had the misinformation law been in place then, would doctors who voiced opposite opinions run afoul of it? Democrats like Newsom can’t seem to see that they got some things wrong but were not censored for it. Punishing supposed misinformation is wrong because our understanding, especially in the middle of a medical emergency, evolves, and we can’t assume we have all the answers at any given time. The best way to get to the truth is the free exchange of information, not punishing people who we think in the moment are wrong.

Newsom’s misinformation law is plainly authoritarian, and one might even call it dystopian. Because of its scope, it is far worse than bills that President Trump and Republican governors around the country enacted to restrict discussions on abortion. A bill in Idaho that prevents referrals to abortion providers is clearly invasive, but far more narrow and smaller in scope than the California bill, for example. Any bill that restricts physicians’ ability to honestly communicate with patients is problematic at best; a vague, poorly written bill that provides for legal sanctions is nightmarish. In an era in which science changes rapidly, a law allowing the government to limit medical debate and punish physicians for stating their views, based on what a random bureaucrat deems factual or not, is rife with moral and ethical dilemmas.

Fighting misinformation and disinformation is difficult, to be sure. But it cannot be done by means of censorship. Only with the expansion of free speech and debate can we hope to solve this problem. Such a process is inherently imperfect and messy. But if we have learned any lesson from the pandemic, it should be that dishonesty, and refusing to admit mistakes and own up to failures, only ensures that the public will distrust the science, regardless of who is voicing it.