Tucked into a Senate bill to overhaul aspects of the California Medical Board is a brief but unequivocal clause that would overturn a controversial law intended to combat the spread of misinformation or disinformation related to COVID-19.

If the bill passes this week as expected,

week of 9/10

it will end the saga of AB 2098, a well-intentioned, poorly worded, and ultimately doomed attempt to curb the most egregious cases of COVID-related falsehoods by those with medical licenses.

We’re pleased that the Legislature is trying to address the flaws in last year’s legislation, said Chessie Thacher, a senior attorney with the ACLU of Northern California, who has filed amicus briefs in four separate lawsuits related to AB 2098. As we argued in court: that bill was dangerously too broad and confusing.

AB 2098 applied to conversations between patients and their physicians about patient care.

When someone blatantly provides false information, completely inaccurate information, especially with the intent to harm patients, then Senator Sen. Richard Pan (D-Sacramento), a pediatrician and co-author of the measure, said in October. This deprives the patient of the ability to make the right decisions.

Doctors fear California’s law targeting COVID-19 misinformation could do more harm than good

The bill was written with extreme examples of irresponsible rhetoric in mind, Pan said at the time, such as that of Dr. Simone Gold, the Beverly Hills doctor who founded the anti-vaccination group Americas Frontline Doctors and promoted debunked COVID-19 treatments. (Gold’s medical license was suspended last year after she pleaded guilty to unlawfully entering the U.S. Capitol on January 6, 2021. It has since been reinstated.)

But the final text did not apply to any fringe claims broadcast on public forums such as social media or the steps of the Capitol. Such provisions would likely not survive a 1st Amendment challenge in court, a legislative analysis of the bill found.

It was endorsed by the California Medical Assn., which represents nearly 50,000 physicians across the state.

Gov. Gavin Newsom expressed some discomfort with the bill’s wording in his September 2022 signing statement, writing that he was concerned about the chilling effect of legislating conversations between doctors and patients.

However, he was convinced that the law was so narrowly tailored that it applied only to those egregious cases where a licensee acts with malicious intent or clearly deviates from the required standard of care.

The law against doctors who spread disinformation about COVID-19 has been suspended by the judge

Other readers pointed out that the text of the measure did not provide a clear definition of such egregious cases, and contained passages that were immune to clear interpretation.

When granting

a

After granting preliminary injunctions in January in two related cases challenging the law’s constitutionality, Judge William Shubb of the U.S. District Court for the Eastern District of California ruled that the law’s unclear wording and structure could have a chilling effect.

The final text defines disinformation as false information that is contradicted by contemporary scientific consensus and that violates the standard of care.

Simply put, this provision is grammatically incoherent, Shubb wrote. It is impossible to parse the sentence and understand the relationship between the two clauses.

The bill’s vague wording gave critics from all quarters room to expand it to suit their purposes.

Purveyor of misinformation and Democratic presidential hopeful Robert F. Kennedy Jr. seized on AB 2098 and filed suit against the bill and greeting Shubbs rules as one

Enormous

win… in this fight for freedom.

California’s COVID-19 misinformation law is mired in lawsuits and conflicting rulings

Even staunch opponents of medical misinformation found the bill an inadequate weapon in the fight against untruths. California law already prohibits doctors from lying to their patients or giving poor medical advice that does not meet the standard of care for all diseases, including COVID-19, they noted.

We don’t need another bill in this state to regulate the practice of medicine, said Dr. Monica Gandhi, an infectious disease specialist at UCSF and director of the UCSF-Bay Area Center for AIDS Research (CFAR). I think it is wise to withdraw this bill.