Lawyers for Children’s Health Defense (CHD) today filed a second request with the U.S. Supreme Court asking it to pause disciplinary proceedings against several Washington state doctors accused of spreading false information about COVID-19, including the virus and the safety and efficacy of the vaccines.
The emergency request stems from a lawsuit filed in March alleging the Washington Medical Commission violated the doctors’ First Amendment right to criticize the “mainstream COVID narrative” and the public’s First Amendment right to hear the opposing viewpoints.
On Wednesday, Associate Justice Elena Kagan rejected the plaintiffs’ original request. Attorneys submitted today’s request to Associate Justice Clarence Thomas.
Rick Jaffe one of the attorneys representing the plaintiffs, said that although the practice is “disfavored,” Supreme Court rules allow petitioners to resubmit applications for injunctions.
“We think the issue is important enough and has national consequences such that we should leave no stone unturned,” Jaffe said. “Justice Thomas has a long history of protecting First Amendment rights.”
In addition to CHD, plaintiffs in the case include Drs. Richard Eggleston, Tom Siler and Daniel Moynihan; and former NBA star John Stockton. Stockton alleged that suppressing the doctors’ public speech violated his First Amendment right to listen to such speech, is also a plaintiff.
CHD founder Robert F. Kennedy Jr., now President-elect Donald J. Trump’s nominee for secretary of the U.S. Department of Health and Human Services, is one of the attorneys representing the plaintiffs in the case.
According to NBC News, the Washington Medical Commission is taking disciplinary action against the doctors involved in the lawsuit because they “spread false information about the virus, saying among other things that vaccines were ineffective.”
“The irony in this case is that the scientific method necessitates testing and challenges of claimed truth,” Todd Richardson, another attorney for the plaintiffs, told The Defender.
Richardson said Washington’s medical commission is a “supposed scientific body … that seeks to reject the scientific method, silence dissent, and force us to blindly accept their preferred narrative as an unassailable truth.”
In May, a federal court dismissed the lawsuit against the commission. The plaintiffs appealed to the 9th U.S. Circuit Court of Appeals and also requested an injunction. The 9th Circuit denied the injunction, and on Oct. 30, the plaintiffs filed their first emergency request with the Supreme Court.
Richardson said Kagan’s denial of the injunction “was disappointing, though not entirely unexpected.” He added:
“This does not interfere with the procedural posture of the case, as the briefing before the 9th Circuit will continue and oral argument will be taken at a later date.
“A panel of judges will have an opportunity to hear the full case and to consider the protection of this important fundamental constitutional right.”
Siler also called the ruling “disappointing,” but told The Defender, “The fight for free speech will continue.”
“Free speech is under attack in many arenas in America today, including medical dialogue,” Siler said. “We still have not had an open discussion on COVID-19 and critique of pandemic management, due to suppression of information.”
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Suppression of doctors’ free speech ‘patently unconstitutional’
According to the emergency request, the Washington Medical Commission’s “enforcement actions not only chill speech but also deprive the public of critical viewpoints necessary for informed debate, especially during a public health crisis.”
Jaffe told The Defender:
“One of our plaintiffs has been charged with ‘moral turpitude’ for stating back in the summer of 2021 that the COVID vaccines will only provide a temporary benefit, and will neither prevent infection nor transmission, which is a position public health authorities and the media strongly at the time criticized as ‘COVID misinformation.’
“Because of the ongoing nationwide campaign against physicians voicing dissenting opinions, and the calls by some in the media for more such disciplinary actions which chills speech, we thought the Supreme Court should weigh in on this important First Amendment and public health issue now.”
Even if today’s second request is rejected, Jaffe said the case will go back to the 9th Circuit for a hearing.
“We think this would be the perfect opportunity for the Supreme Court to remind the circuit courts that the states cannot regulate the public viewpoint speech of physicians just because they have a license, even in pandemic times,” Jaffe said.
Siler said, “One would think the medical community would welcome this discussion in the best interests of the patients they serve. I don’t think most doctors want to practice in a world where the government or the state medical board says what you can and cannot say to your patients.”
Richardson praised the plaintiffs for having “the courage required to protect and save our Constitution.” He added:
“Freedom of speech has been called the ‘indispensable right.’ It is truly foundational to all other rights and to the very existence of government for, by, and of the people. Without the fullest protections of this right, we are threatened at every level of decision-making, from control of our bodies to management of the body politic.
“We must have the right to speak and hear opinions and voices that allow us to exercise our God-given agency, or we become enslaved to whoever controls what we are allowed to say and think.”
“We hope that one day the Supreme Court will clearly state that the Constitution does not permit the government to sanction the public viewpoint speech of physicians,” Jaffe told NBC News.
