Federal judge blocks California misinformation law

A federal judge has temporarily blocked a California law intended to prevent doctors from spreading COVID-19 misinformation or disinformation to patients, finding that it is “unconstitutionally vague.” 

A group of five doctors and two nonprofit advocacy groups sued in November after California Gov. Gavin Newsom (D) signed Assembly Bill 2098 into law the month before. 

The law states that disseminating misinformation or disinformation related to COVID-19, including information about the risks of the virus, prevention and treatment methods and vaccines, to patients should be considered “unprofessional conduct.” 

But U.S. District Judge William Shubb ruled Wednesday that the law’s definition of misinformation violates the Due process Clause of the 14th Amendment to the U.S. Constitution due to vagueness.

The law states that misinformation is defined as false information that “contemporary scientific consensus” contrary to the “standard of care” contradicts. 

The plaintiffs argued that “scientific consensus” is a poorly defined concept without an official meaning in the medical community. Shubb said this leaves multiple important questions unanswered, including who determines whether a consensus exists, who must agree for a consensus to exist and how recent the consensus must have been made to be considered contemporary. 

He said plaintiffs are unable to determine if their intended conduct would violate the law as a result. 

Shubb noted that the California state government argued that clear scientific consensus exists on certain issues, but he said the law does not apply consensus to “basic facts” like Down’s syndrome being caused by a chromosomal abnormality. He said COVID-19 is a disease that scientists have studied for only a few years, and scientific conclusions surrounding it are “hotly contested.” 

“COVID-19 is a quickly evolving area of science that in many aspects eludes consensus,” he said. 

Shubb also ruled that the phrase of the law’s provision defining misinformation as false information “that is contradicted by contemporary scientific consensus contrary to the standard of care” is grammatically incoherent and a reader cannot understand the relationship between the two clauses. 

Shubb found that the plaintiffs would suffer irreparable harm without a preliminary injunction. 

The Hill has reached out to Newsom’s office for comment.