A big part of why we’re the greatest is our long tradition of freedom of speech and expression, specifically enshrined in our Constitution via the First Amendment. And we’ve made important advances in expanding and protecting those liberties over the years.
But too often we take those freedoms for granted. And we look the other way when those liberties are infringed on other people.
But that’s exactly what’s happening now.
About California’s Doctor Muzzle Law
Under California law AB2098, Any doctor found to provide information the State deems to be “misinformation or disinformation” risks losing his or her medical license.
Ostensibly, this law will be invoked to punish doctors who dissent from the State’s official line on COVID restrictions and vaccines.
But it won’t stop there. AB2098 defined “misinformation” extremely broadly: Anything that “is contradicted by contemporary scientific consensus.”
If the State can pass a law preventing doctors from expressing dissent on COVID-related matters, they can pass a law preventing them from expressing dissent on anything else, too.
In the current climate, it’s easy to imagine the State cracking down on medical professionals for dissenting on any number of topics, from gender-reassignment surgery on minors to reproductive issues.
With this new law, the state essentially substitutes the judgment of a panel of bureaucrats for that of doctors in the field.
This isn’t the first time the government has weighed in to silence dissenting doctors on medical issues: The American Civil Liberties Union helped a group of doctors to file suit against the federal government two decades ago, in 2003, when the Bush Administration attempted to silence doctors who wanted to recommend marijuana as an anti-nausea agent to patients with HIV/AIDS.
“If allowed to stand, this policy could become precedent for federal officials imposing politics upon any issues of medicine, especially those that are controversial – a development that would seriously jeopardize patient care.,” wrote the ACLU in their statement.
California’s Medical Commissar Isn’t Even A Doctor
In fact, some members of California’s state medical board aren’t even doctors themselves. The current California Medical Board president, Christina Lawson, is a lawyer, not a doctor.
And she’s not there because she was promoted by other doctors. Her background isn’t even in medical law. According to her own bio, she practices land use and environmental law. She’s there because she’s a reliable supporter of Governor Gavin Newsome, who appointed her.
And then signed a law that gives her and the Board she directs the authority to act as medical commissars, enforcing not just medical standards, but political orthodoxy as well.
The “Experts” Are Often Wrong
In addition to being a direct violation of individual liberties, this muzzle law and others like it erode a vital feedback and safety mechanism. In a complex environment like medicine, information and knowledge is a two-way street. Evidence and knowledge doesn’t just travel from the top down; It also filters up from the bottom.
Governments need the information they receive from physicians in the field actually treating patients to be as accurate and unfiltered as possible. Otherwise, they have no basis with which to make informed decisions.
That costs lives.
Medical experts and state authorities have been wrong countless times throughout history.
For example:
- Thalidomide was widely-recommended to treat “morning sickness” among pregnant mothers. It wound up causing severe birth defects in at least 100,000 people before it was recalled.
- The weight loss drug Fen Phen was routinely prescribed for years: Until clinical experience found that it was linked to thousands of cases of severe heart problems.
- Vioxx was a blockbuster success in treating arthritis for five years – until doctors noticed patients were dropping dead with strokes and heart attacks by the thousands.
- The tobacco industry fed the public and the FDA the lie that smoking was safe for years. Doctors themselves were complicit in embracing and pushing the FDA’s line. Until the link between smoking and lung disease became too obvious to ignore.
- In early 2020, just as we were becoming aware of the COVID threat, Dr. Anthony Fauci, the controversial head of the Center for Disease Control, told the public not to wear masks. Then reversed himself.
- In 2021, authorities and the media dismissed early reports that the vaccine was disrupting women’s menstrual cycles. They also aggressively sought to discredit those who were raising the alarm. But we now know that those raising the alarm were right all along.
Regulators get things wrong all the time. And it’s doctors in the field who first notice that something is amiss. In some cases, such as Darvocet, doctors mostly stopped prescribing dangerous drugs years before the FDA finally acted, taking them off the market.
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Dissent is a Vital Feedback Mechanism
When authorities threaten physicians’ livelihoods over dissent, they damage a vital feedback mechanism for change. When medical authorities are getting it wrong – as they will time and again – it falls to physicians in the field to do their best to correct the record.
If you silence these voices by threatening their livelihoods, the record won’t get corrected. And many more people will suffer or die as a result.
Gag orders such as California’s AB2098 will also have an invisible but terrible chilling effect on innovation. No one can develop or support a new approach to treatment, therapy, or prevention if doing so risks the loss of his or her license.
This unconstitutional assault on free speech and privacy also imposes a “chilling effect” on innovation.
Governor Newsom “Concerned About the Chilling Effect”
Even Governor Newsom himself acknowledges this fact. As he signed AB2098 into law, Governor Newsom issued a signing statement:
“To be clear, this bill does not apply to any speech outside of discussions directly related to COVID-19 treatment within a direct physician-patient relationship,” Governor Newsom said. “I am concerned about the chilling effect other potential laws may have on physicians and surgeons who need to be able to effectively talk to their patients about the risks and benefits of treatments for a disease that appeared in just the last few years.”
Nevertheless, signing statements don’t have the force of law.
And the principles of free speech and the necessity of a free and unfettered marketplace of ideas apply as much to COVID as anything else.
Challenging the Censors
California isn’t the only offender in this regard. Several other state medical boards have taken action to punish doctors who dissent from the official line on COVID masking, restrictions, or vaccines.
In a particularly Soviet touch, Maine’s medical board didn’t stop at revoking the medical license of a doctor who prescribed ivermectin and hydroxychloroquine to COVID patients in 2020 and 2021, but also required her to undergo a psychiatric examination.
Fortunately, some state legislatures are taking action to limit the authority of state medical boards from punishing doctors for exercising their right to free expression. Tennessee and North Dakota have already done so, and ten other states are considering following suit.
This isn’t to say that there isn’t bad information out there. There’s a lot of it. There are unfounded conspiracy theories out there. And there is value in making sure government can get the official word out and not have it choked or drowned out by conspiracy theorists, snake oil salesmen, and assorted kooks.
But actively using state authority to crack down on individuals simply exercising their right to free expression is authoritarian – and a threat to the republic.
If the authorities are correct in any given matter, let them defend their position even against withering criticism. Without censorship, coercion, or oppression.
As usual, the authoritarians are well-meaning. But the well-meaning authoritarians are the most dangerous of them all.
Wiley is President of HSA for America. He believes that consumers should have choice and price transparency, so they can make the best healthcare decisions for their needs. Read more about Wiley on his Bio page.