The Legal Battle over California’s AB2098

Taylor Nichols, MD
2 min readJan 28, 2023

Let’s talk about the recent legal cases involving California’s AB2098 — the bill addressing physicians spreading COVID-19 and COVID-19 vaccine misinformation in the setting of a physician-patient relationship:

The fact that the judge granted a preliminary injunction and that the plaintiffs have standing doesn’t bode well for the law. However, multiple law professors and legal scholars have previously deemed that professional speech — within a doctor-patient relationship — is not and should not be protected speech by the First Amendment.

One of the law professors who has written about this topic multiple times is Carl Coleman at Seton Law School:

Regulating Physician Speech

Physicians Who Disseminate Medical Misinformation: Testing the Constitutional Limits of Professional Disciplinary Action

He’s quoted here by Bloomberg Law as saying: “There’s no question but that a doctor who is providing incompetent medical advice to a patient is committing malpractice, and that can be grounds for professional discipline…Within the physician-patient relationship, it’s a medical question of whether what the doctor said was valid or not. There’s no First Amendment issue there.”

The real question would be about the gray area of physician speech in public forums, which would be trickier and is addressed in that Bloomberg Law article. This is why the text specifying speech within the context of a physician-patient relationship was included in AB2098.

As Gavin Newsom stated when he signed the bill, expressing concerns about overly regulating physician-patient interactions, that this bill “is narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care.”

I think that summarizes both the intent and anticipated effect of the bill perfectly and succinctly. I look forward to seeing this legal case brought forth and a decision in favor of the Constitutionality of the bill and the bill taking effect in California in the future.

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Taylor Nichols, MD

Humanist. Emergency Medicine and AddictiEmergency + Addiction Medicine | Health policy and advocacy | Health tech and innovation