Last Updated on January 26, 2023

A federal judge has issued a preliminary injunction against a California law that allows the Medical Board of California to punish medical personnel who spread “misinformation” or have opinions on COVID-19 that goes against “consensus.”

The law, formally known as Assembly Bill 2098, was set to take effect at the start of this year. Under the law, the Medical Board of California and the Osteopathic Medical Board of California could discipline physicians who “disseminate” information about COVID that is not in line with the “contemporary scientific consensus,” Fox News reported.

The law has faced significant backlash from civil liberties advocates and physicians who point to the numerous instances where “consensus” opinion on COVID-19 policy was wrong. In November, a group of five California physicians filed a lawsuit against California Governor Gavin Newsom’s Administration, arguing that the law violates their first amendment rights, as well as their right to due process.

Aaron Kheriaty, MD, one of the doctors listed in the lawsuit, shared in a tweet Wednesday that a judge had granted a preliminary injunction against Assembly Bill 2098.

“The ruling bodes well for our case,” Kheriaty tweeted. “It indicates that our arguments that this law is unconstitutional have strong pre-trial facial plausibility. Not to get ahead of ourselves, of course, or try to predict the final outcome of the case, but this is a very positive development.

“One more detail here,” he added. “The preliminary injunction ruling also establishes that we five physicians have standing to challenge the law. This is important because a similar challenge filed against AB2098 was dismissed based on a ruling that the plaintiffs lacked standing.”

The doctors are being represented by The New Civil Liberties Alliance (NCLA), a nonpartisan civil rights firm.

Jenin Younes, counsel for the NCLA, said in November that it is “shocking” that such a law could be enacted in the United States. “That this shocking bill passed through the state legislature and was signed into law by Governor Newsom demonstrates that far too many Americans do not understand the First Amendment,” Younes said.

The doctors named in the complaint argued that the law violates their First Amendment rights because it impedes their ability to communicate with patients. “In safeguarding Americans’ rights to free speech and expression, the First Amendment applies not only to expression of majority opinions, but to minority views as well,” the complaint said.

They have also argued against the concept of a “consensus” an  issue such as COVID-19, where top health officials in the federal government routinely changed guidelines based on emerging data. Doctors argued that “contemporary scientific consensus” is “undefined in the law and undefinable as a matter of logic.”

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