Doctors take challenge to Washington's Covid speech rules to Ninth Circuit

(CN) — A challenge to a Washington state investigation into doctors spreading Covid-19 misinformation reached a Ninth Circuit Court of Appeals panel on Wednesday, where the judges questioned whether they even had the power to intervene.

The Washington Medical Commission charged two doctors with unprofessional conduct for publishing false information about Covid-19 online and in newspaper columns in 2022 and 2023. Both doctors then sued commission officials and were joined in the lawsuit by an additional doctor, as well as former Utah Jazz point guard John Stockton and the nonprofit Children’s Health Defense, founded by Robert F. Kennedy Jr.

A Washington state federal court rejected the plaintiffs’ First Amendment and due process challenges, finding the court was precluded from considering them under Younger v. Harris — a 1971 U.S. Supreme Court ruling that generally prevents federal courts from intervening in state proceedings, including state medical board investigations.

Before the Ninth Circuit, the doctors argued that Younger abstention doesn’t apply.

“In this case, you have a national policy of the Federation of State Medical Boards, the specific target of which is to suppress speech,” Richard Jaffe, a Sacramento-based attorney representing the plaintiffs, said. “That policy was adopted by the Washington Medical Commission targeting speech.”

U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, questioned why the claims from the two doctors with ongoing proceedings with the commission wouldn’t be barred.

“You can’t have a state interest which is unconstitutional,” Jaffe responded.

U.S. Circuit Judge Milan Smith, a George W. Bush appointee, pushed back on Jaffe’s argument.

“I don’t see what exception you’re looking at,” Smith said. “Even if you’re absolutely right that the underlying action of the board might be unconstitutional, you can vindicate that in state court, but I don’t see how we get involved.”

Jaffe argued that the state exceeded its interest from beyond medical practice into public speech through its “systematic enforcement practice against a class of people,” rather than specific proceedings involving the two doctors.

As for the third doctor, Jaffe asserted that he established standing by expressing an interest in speaking about Covid-19 but was forced to self-censor over fears of facing consequences from the state. Jaffe added that both Stockton and the nonprofit have an interest in “asserting their rights to hear the information.”

The state argued that the very nature of the case is resolved by answering the question of whether a federal court can halt an ongoing state disciplinary proceeding.

“The answer is no,” said Washington state assistant attorney general Andrew Hughes.

The state argued that the lower court correctly determined that Younger prohibited it from hearing the plaintiffs’ claims.

“Simply put, your honors, if Younger abstention doesn’t apply here, it’s hard to see where it would apply at all,” Hughes said, adding that the plaintiffs have ample opportunity to raise their federal claims in the Washington Supreme Court if they so desire.

“Regulating physician conduct and licensing in Washington is undoubtedly an important state interest,” Hughes said.

The state also argued that the third doctor doesn’t have any basis to bring a challenge, as it’s unclear what he is challenging at all since he is not the subject of a disciplinary proceeding.

“Plaintiffs really make an effort to argue this case at the highest possible level of generality and say, ‘Any statement against the mainstream narrative is now subject to discipline by the Washington Medical Commission,’ but that’s just not true,” Hughes said.

Rather, the commission specifically disciplines verifiably false statements — such as one of the doctors claiming mRNA vaccines alter one’s DNA, Hughes argued.

The commission even investigated the third doctor and concluded there wasn’t a basis to move forward with charges against him, which Hughes pointed to as evidence that his argument that his speech has been chilled is a “beggar’s belief.”

“The [Washington Medical Commission] responds to complaints,” Hughes said. “[Washington Medical Commission] does not go out and look for doctors to prosecute.”

The plaintiffs asked the court for an injunction, but the state argued that there is no policy that can be blocked since the request was so vague and unclear.

On rebuttal, Jaffe argued that free speech protections allow anyone — even doctors — to speak openly.

“There’s no doctrinal support for the idea that you can just stop speech because it’s false,” Jaffe said.

The Ninth Circuit panel, which also included U.S. Circuit Judge Sidney Thomas, a Bill Clinton appointee, did not indicate when it would rule.