Liberty Justice Center Wins Battle for Doctors’ First Amendment Rights as California Repeals Physician Censorship Law

October 2, 2023

Chicago, IL—On October 1st, after a year of litigation, California conceded the inevitable and repealed California Assembly Bill 2098 (AB2098), the State’s blatantly unconstitutional attempt to censor the free speech of doctors throughout the state. The repeal comes on the heels of oral argument in McDonald v. Lawson, where the state faced an icy reception from the Ninth Circuit Court of Appeals.

The Liberty Justice Center filed McDonald v. Lawson in October 2022 to challenge AB2098, a law which empowered California bureaucrats to revoke physicians’ medical licenses for disagreeing with the State of California’s official beliefs about COVID-19. Under AB2098, a single instance of a doctor telling their patients a single piece of information the state disagreed with would be considered the equivalent of gross negligence and would allow the California Medical Board to revoke a physician’s license.

In early September, following the oral argument in McDonald, SB815—a preexisting bill to reauthorize the Medical Board of California—was quietly amended to include a repeal of AB2098. The repeal will take effect in January 2024. AB2098 had been criticized by civil liberties advocates from the beginning—even Governor Newsom, who signed the bill into law, attached a signing statement expressing “concern” about “the chilling effect” such laws can have.

The Liberty Justice Center argued that AB2098’s vague language—which would punish doctors for sharing “misinformation,” defined as anything contrary to the “contemporary scientific consensus”—threatened widespread medical censorship in violation of the First Amendment.

“It shouldn’t have taken a lawsuit and a year of litigation, but we’re thrilled to see California defend free speech by repealing Assembly Bill 2098,” said Liberty Justice Center President Jacob Huebert. “Doctors have the same right to free speech as everyone else, and patients deserve their doctors’ best honest advice. We’re glad California repealed this bill before it could spread to other states, and we’re proud to have defended our clients’ First Amendment rights.”

“It took a federal lawsuit for California legislators to reverse course and repeal an unconstitutional attack on free speech and the doctor-patient relationship,” said plaintiff Dr. Mark McDonald. “We need real accountability, or this will happen again. That’s why I will continue to speak out alongside organizations like Liberty Justice Center that are fighting to stop government infringement on Americans’ basic freedoms.”

“What a shame that it required the precious resources of time, money, and stress to preserve our constitutional rights of free speech and medical freedom,” added plaintiff Dr. Jeff Barke. “Governor Newsom should be ashamed for signing the first bill—and then, without comment, signing the second and making the first moot. I am proud to have been a part of the medical freedom movement to protect the rights of physicians to offer unbiased opinions for their patients.”

The Liberty Justice Center’s filings in the case are available here.


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