Should California be able to govern the speech of medical professionals for the sake of preventing misinformation? Based on the Assembly’s recent passage of Assembly Bill 2098, the majority of the chamber’s representatives think it should. The legislation did, however, receive 20 “no” votes and has been the subject of terse disagreement among stakeholders.
AB 2098 aims to mitigate the spread of false information surrounding COVID-19 by preventing health care providers from disseminating unproven information about the virus to the public. It classifies such actions as “unprofessional conduct” and gives the Medical Board of California and the Osteopathic Medical Board of California the authority to decide if an instance constitutes a violation of the bill. The consequence in cases deemed to violate AB 2098 is loss of licensure.
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According to supporters, misinformation poses a grave threat to public health because people who are skeptical of the government (in this case meaning bodies like the CDC) use unfactual claims from medical professionals to fuel their belief in COVID misinformation.
According to a 2021 survey from the Federation of State Medical Boards, 58 member boards said they’ve seen an increase in complaints about providers spreading false information about COVID. Supporters of the bill say people who don’t trust the CDC will seek out respected professionals like physicians who echo their viewpoints, which can further promote dismissal of factual public health guidance. The bill emphasizes this is particularly an issue in the age of social media, where misinformation can spread more quickly and widely than ever.
“Licensed physicians, doctors, and surgeons possess a high degree of public trust and therefore must be held accountable for the information they spread,” said sponsor Asm. Evan Low (D – Saratoga). “Providing patients with accurate, science-based information on the pandemic and COVID-19 vaccinations is imperative to protecting public health. By passing this legislation, California will show its unwavering support for a scientifically informed populous [sic] to protect ourselves from COVID-19.”
The bill defines “misinformation” as “false information that is contradicted by contemporary scientific consensus to an extent where its dissemination constitutes gross negligence by the licensee.” It defines “disinformation” as “misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.”
The legislation specifically targets three types of misleading information concerning COVID-19. The first is nonfactual information about the nature of the virus, such as inaccurate comments about its severity. Saying COVID is comparable to less serious diseases, for instance, would be prohibited.
Second, the bill prevents the dissemination of inaccurate information regarding COVID treatment, including promoting unproven treatments and therapies. Third, the bill prohibits providers from giving inaccurate information concerning COVID vaccines.
Opposing arguments revolve around rights to free speech, with Californians for Good Governance (CGG) opposing the bill on the grounds that it unconstitutionally restricts free speech in its prohibition on disseminating information. A Voice for Choice Advocacy, another opposed organization, argues the bill isn’t enforceable because there’s no universally-established “standard of care” or “contemporary scientific consensus” for treating COVID.
Speaking on behalf of CGG, Laura Powell emphasized that her organization believes restricting free speech is not the way to combat misinformation. Rather, she said, “the remedy for speech that is false is speech that is true.”
“[This bill] would discourage conscientious doctors from expressing themselves freely about a topic that is fraught with uncertainty due to its novelty,” Powell said. “Doctors help patients make deeply personal decisions and their cander is crucial.”
The bill had an abnormally short and quiet time on the Assembly floor. Last week, all present Republicans plus one Democrat (Asm. Ken Cooley (D – Rancho Cordova)) voted against the bill, which didn’t hear any debate or a statement from Low prior to the vote.
— Californians for Good Governance (@ca4governance) May 26, 2022