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A federal appeals court upheld the dismissal of a free speech lawsuit filed by basketball legend John Stockton, Children’s Health Defense (CHD) and doctors in Washington state who challenged COVID-19 health policies.
The lawsuit, filed March 7, 2024, against the state attorney general and the Washington Medical Commission, alleged that the commission’s threats of disciplinary action violated doctors’ First Amendment right to criticize the “mainstream Covid narrative” and denied the public the right to hear such criticism.
The 9th U.S. Circuit Court of Appeals said its decision, filed on Sept. 17, to affirm the lower court’s dismissal wasn’t based on the case’s merits but on legal doctrines called “ripeness” and “abstention.”
Attorney Rick Jaffe, who represents the plaintiffs, said he plans to petition the U.S. Supreme Court to review the case.
“In short, we’re not done — and we expect to prevail,” he said. “Stay tuned for a more comprehensive overview of the state of the COVID misinformation wars.”
Judge Milan D. Smith Jr., who authored the 9th Circuit’s opinion, wrote:
“We appreciate that the Plaintiffs vigorously disagree with the Washington Medical Commission’s practices and actions. …
“… 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.”
Some of the plaintiffs’ claims were “constitutionally unripe because no injury has yet been suffered,” the 9th Circuit said.
“Ripe” refers to whether a lawsuit’s facts are ready for judicial resolution, according to Cornell Law School. The 9th Circuit also said it couldn’t consider the merits of the plaintiffs’ claims because it had to abstain from cases that are pending in state proceedings.
Jaffe said the U.S. Supreme Court has “all but rejected” the doctrine of ripeness and is just waiting for an opportunity to make a ruling on the topic.
“The Stockton cert petition will provide that opportunity to the court,” he said. A cert petition is what lawyers submit to the Supreme Court when they ask the court to review a case.
CHD General Counsel Kim Mack Rosenberg said:
“We still firmly believe that the harms done to free speech — both from the side of those expressing opinions or sharing information and the side of those who are foreclosed of an opportunity to receive information — are real and ripe for a court to decide.”
Stockton joined lawsuit to fight ‘broader silencing effect’
Stockton, a basketball hall-of-famer and Olympic gold medalist, also co-hosts the “The Ultimate Assist Podcast.” He joined the lawsuit to advocate for the public’s right to access “soapbox speech,” the complaint shows.
“There’s this broader silencing effect where people aren’t even actually being directly censored,” Stockton told The Defender in a previous interview. “Their speech is just being chilled. So, they’re not expressing what they believe in, what they want to say, for fear of these sorts of repercussions. I look at it as one of these things where you just can’t stay silent.”
Other plaintiffs included Dr. Richard Eggleston, Dr. Thomas T. Siler, Dr. Daniel Moynihan and roughly 60 unnamed doctors who were facing disciplinary proceedings by the state’s medical commission at the time of the case’s filing.
In addition to Smith, the 9th Circuit panel that reviewed the case included judges Sidney R. Thomas and Daniel A. Bress.
Bress wrote a partial concurrence opinion, stating he ultimately agreed with the majority’s decision that the plaintiffs’ claims couldn’t move forward but disagreed with some of the majority’s reasoning.
“The lack of clear delineation between the different plaintiffs and claims has complicated the decisional process,” Bress said.
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Supreme Court still silent on related censorship case
The 9th Circuit’s ruling comes months after the U.S. Supreme Court rejected an emergency appeal in the case.
Mack Rosenberg said CHD continues to “champion free speech not only for itself but for medical professionals, patients and the public.”
CHD has signed onto or financially supported several cases challenging COVID-19 censorship, including the Stockton case.
In March, CHD, Physicians for Informed Consent and a group of doctors who sued the Medical Board of California after it disciplined them for allegedly spreading COVID-19 “misinformation” asked the U.S. Supreme Court to review their case.
The Supreme Court has yet to issue a decision.
The case, Kory v. Bonta, filed in January 2024, is a follow-up to a previous complaint filed in 2022 and an amended suit filed in 2023. The suit challenges California’s Assembly Bill (AB) No. 2098 — a law allowing the medical board to discipline doctors who give “misinformation” about COVID-19 for engaging in unprofessional conduct.
A federal judge blocked AB 2098 in January 2023, and the law was later repealed. However, according to the lawsuit, the Medical Board of California continues to target “COVID misinformation” and is threatening physicians with disciplinary action.
Jaffe represents plaintiffs in both cases.
Related articles in The Defender- CHD, Basketball Legend John Stockton and Censored Doctors Sue Washington Medical Commission
- CHD Asks Supreme Court to Pause Disciplinary Actions Against Doctors Who Criticized COVID Policies
- ‘I Can’t Stay Silent’: Basketball Legend Joins Lawsuit to Protect Free Speech After Son, Father Injured by Vaccines
- CHD, Doctors Ask Supreme Court to Hear Medical Free Speech Case
- Doctors File First Lawsuit Challenging California Law That Seeks to Punish Physicians for COVID ‘Misinformation’
