Ninth Circuit rejects doctors' challenge to Washington's Covid speech rules

(CN) — The Ninth Circuit on Wednesday upheld the dismissal of a lawsuit challenging Washington’s discipline of doctors accused of spreading Covid-19 misinformation in a decision that diverged from a state appeals court ruling the day before.

“We appreciate that the plaintiffs vigorously disagree with the Washington Medical Commission’s practices and actions,” U.S. Circuit Judge Milan Smith wrote on behalf of the panel. “For several reasons, though, we cannot reach the merits of the plaintiffs’ constitutional challenges.”

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.

The Ninth Circuit agreed with the lower court, finding that the plaintiffs’ claims were largely barred under Younger.

“Because we conclude that all of the plaintiffs’ claims are barred based on the doctrines of abstention and ripeness, we lack jurisdiction to address the merits of the plaintiffs’ constitutional challenges,” Smith, a George W. Bush appointee, wrote.

The Younger abstention doctrine is applicable when state proceedings are ongoing, quasi-criminal enforcement actions, implicate an important state interest and allow litigants to raise federal challenges. The court concluded that the bulk of the plaintiffs’ claims were foreclosed by Younger , as they involved ongoing state investigations and prosecutions of physicians.

Richard Jaffe, a Sacramento-based attorney representing the plaintiffs, expressed dismay with the outcome.

“We are disappointed but not surprised by the court’s decision,” Jaffe said.

He contrasted the federal appeals court’s decision with that of the Washington state appeals court, which on Tuesday reversed sanctions against a separate doctor disciplined by the Washington Medical Commission.

In the state case, the commission imposed sanctions on Dr. Richard Wilkinson for “downplaying the severity of the COVID pandemic, promoting the use of ivermectin over a vaccine, and criticizing the government’s response to the pandemic,” according to the Washington Court of Appeals.

The state appeals court determined that the First Amendment “robustly protects a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream or even dangerous.”

The Washington Medical Commission found Wilkinson’s statements to be false, which the state appeals court determined showed it punished him based on viewpoint discrimination.

“The state has no right to protect the public against false doctrine,” Washington Court of Appeals Judge George Fearing wrote.

To Jaffe, the Ninth Circuit decision fell short of the state decision.

“For some reason, the federal court is unwilling to say that or even address the issue, instead, relying on judge-made threshold issues of questionable applicability,” Jaffe said.

A representative for the Washington Attorney General’s Office, on the other hand, expressed appreciation for the Ninth Circuit’s “thoughtful judgment in this matter.”

The judgment from the Ninth Circuit, unlike the state appeals court ruling, rested largely on procedural grounds rather than free-speech principles.

Smith noted that  “the plaintiffs suggest that the state lacks a legitimate (let alone an important) interest in regulating speech” but said they forfeited that argument since they didn’t raise it before the lower court.

There are exceptions to the Younger abstention if there is a “showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief.”

Such was not the case for the plaintiffs here, the panel concluded. The plaintiffs argued the disciplinary proceedings were brought in retaliation for their protected speech and as a way to deter unpopular speech, but the court found that they failed to show why the state courts couldn’t adequately protect their free speech rights.

“By the allegations of the operative complaint, there was no concerted bad-faith campaign against any of the physicians; to the contrary, there is only a bald assertion that the commission is infringing the First Amendment rights of the physicians by disciplining them,” Smith wrote.

The plaintiffs also wanted a declaration that future investigations, prosecutions and sanctioning of physicians for speaking out about Covid-19 violate the First Amendment.

The Ninth Circuit agreed with the lower court that Younger barred the two disciplined doctors from raising this claim but disagreed that it barred the remaining plaintiffs from doing so.

Since Stockton, the nonprofit and the additional doctor aren’t involved in ongoing state disciplinary proceedings, they are free to raise the claim; however, the claim still failed because no injury had been suffered and because it involved “hypothetical future prosecutions against unnamed and unknown doctors.”

U.S. Circuit Judge Sidney Thomas, a Bill Clinton appointee, and U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, rounded out the Ninth Circuit panel.