California Doctors Sue Newsom Gov't Over Anti-Speech Licensing Law

P. Gardner Goldsmith | November 7, 2022
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Concerned Americans likely recall the September 1 CNS bombshell on the California Assembly taking its “licensing” absurdity to a new level. In passing AB 2098, the Golden State government established a first-in-the-nation precedent -- combining the fascist “licensing” paradigm (i.e., “you can’t work without our permission”) with the authoritarianism of speech controls, allowing the Medical Board of California to pull the ”license” livelihood permission slips of doctors who “disseminate misinformation or disinformation related to COVID-19.” 

Which combines the malevolence of aggressive “shut down” threats with the conceit of the state possessing perfect knowledge about what is “misinformation” and “disinformation.”

Based on the abysmal record shown by CA Governor Gavin Newsom when it came to the value of “masking” (rules he repeatedly broke himself), based on Newsom’s walking in-lockstep with other state and federal government-mandated “lockdowns” of businesses, and based on the terrible record of federal officials when it came to everything from the efficacy of their first flood of tax-funded mRNA jabs and “boosters,” to their manipulation of COVID numbers themselves, it’s pretty easy to note the emptiness of any government claim to omniscience.

Well, some California doctors are fighting back. Jacob Sullum reports for Reason that the New Civil Liberties Alliance (NCLA) is working with numerous doctors in the state to bring suit against Newsom and his political pals who would strip them of their ability to legally work should the state deem their speech “wrong.”

“The NCLA, which is representing five California physicians who object to the new law, argues that it violates the First Amendment by punishing doctors based on the views they express and the 14th Amendment's guarantee of due process by imposing an unconstitutionally vague standard of acceptable speech.”

The statute is set to go into effect on January 1, 2023, and Sullum explains that the NCLA has put its finger on just how dangerous this thing is:

"’The law imposes a quintessential viewpoint-based restriction, because it burdens speech determined by the Board to diverge from the 'contemporary scientific consensus,'’ the NCLA says. ‘In safeguarding Americans' rights to free speech and expression, the First Amendment applies not only to expression of majority opinions, but to minority views as well. Indeed, it is minority views that need protection from government censorship—as this law shows. Nor is there an exception to the prohibition on viewpoint-based discrimination simply because the law applies only to a regulated profession. In short, AB 2098 infringes Plaintiffs' First Amendment rights because it impedes their ability to communicate with their patients in the course of treatment.’"

And, adds Sullum:

“Even if a doctor were keen to avoid deviation from the "scientific consensus" regarding COVID-19, he would have a hard time figuring out what that means. "The term 'contemporary scientific consensus' is undefined in the law and undefinable as a matter of logic,’ the NCLA says.”

Many readers might not be aware that this is a wider problem than that seen in California with AB 2098. For nearly three decades, federal level personal injury suits have been saddled by a practice adopted by judges called the “Daubert Hearing.” This changed the standard by which “expert witnesses” could be called by defendants or plaintiffs. Prior to the 1994 Supreme Court case “Daubert v Merrell Dow Pharmaceuticals,” juries heard testimony of those labeled “expert witnesses” as long as the witness had some kind of credential such as a degree in the field or long-standing expertise. The standard still was arbitrarily created by the government, but it allowed for much wider acceptance of differing scientific views, letting juries judge the info for themselves.

“Daubert” saw the Supreme Court establish criteria that included the court deciding if the proposed witness’s views were within the “scientific consensus.”

So, not only do judges have to have knowledge of the U.S. and state constitutions, of Common Law, statutes, and judicial temperament, they also must now know the “scientific consensus” for every case that might involve science presented to them.

Related: Via Constitutionally Insulting Executive Order, Biden Mandates Masks On Planes | MRCTV

What would they have done when Galileo was tried for heresy, even though he was right? His views were not in the “scientific consensus,” at the time.

Adds Sullum:

“When it comes to COVID-19 treatment, conventional wisdom likewise has evolved in light of emerging evidence. ‘At the beginning of the pandemic,’ the NCLA notes, ‘the standard of care for treatment of patients with severe Covid-19 was intubation.’ One of the plaintiffs in the NCLA's lawsuit, Ram Duriseti, an emergency room physician in Burlingame, ‘resisted invasive intubation while the consensus was evolving.’ Then ‘the consensus changed and his view became the prevailing one.’"

The heart of this issue is not merely the California government claim to omniscience, and not just the idea that any state can determine what is “in the scientific consensus.” Those are bad enough. But it’s important for Americans to see the evil in the political conceit of the government claiming to be able to tell people whether they can get a “license” merely to offer someone services or products.

Certainly, this instance sees California claiming to “know” the science, and use that as a reason for pulling licenses.

But the reasons politicians might pull out of their evil magic hat of “license tricks” are infinite.

Some of the earliest licensing laws were pushed in the Jim Crow South, as ways to keep newly-freed slaves stuck on their plantations, rather than let them leave to work at better jobs.

David Bernstein points out in his 2001 book “Only One Place of Redress” that out west, beyond the southeastern states where slavery had been part of many plantation economic plans, new opportunities were arising for freed slaves. New workers were in such high demand in places like Louisiana that recruiters would travel east to spread the word to the freed slaves – many of whom were illiterate, therefore unable to read job info in a newspaper. In fact, some of these recruiters would bring with them train tickets and hotel passes for the former slaves who might want to leave, say, Georgia, and head to New Orleans.

Opportunity was so great in the Mississippi Delta that, notes Bernstein on p. 17, for a time in the late 1800s, more black people owned property around New Orleans than white people did.

How did some of those eastern, formerly slave-state governments respond to the “Emigrant Agents” who recruited former slaves to get higher wages and leave the eastern plantations? They passed prohibitive “licensing laws” – including licensing fees -- to price the recruiters out of the state.

Licensing is an immoral abrogation of free association. Regardless of the current “rationale” offered by California, or any so-called “justification,” the very act of adopting unto oneself the power to tell others whether they can or cannot engage in peaceful commerce is an act of immoral aggression.

In this California case we can see one example of its pernicious effects. This, clearly, is part of the much larger “government and big corporate pals versus the people and free speech” battle we’ve seen explode since March of 2020.

But it’s incumbent on us to recognize the larger scope of the problem, and oppose the immoral imposition of all “license laws,” regardless of the rules the politicians arbitrarily include in such laws.

Related: States Scramble To Recognize Out-Of-State Job Licenses In Virus Lockdown USA | MRCTV