Appeals Court Rules Physicians Can Assert Their First Amendment Rights

A federal appeals court ruled physicians have standing to sue specialty boards that threaten their constitutionally protected speech, in one of several cases alleging censorship.

The U.S. Court of Appeals for the Fifth Circuit remanded to a district court a lawsuit by the Association of American Physicians and Surgeons (AAPS) that alleges federal agencies and professional medical credentialing boards coordinated attempts to censor physicians who spoke critically against pandemic lockdown policies, Anthony Fauci, abortion, and vaccination.

The American Board of Internal Medicine (ABIM), the American Board of Obstetrics and Gynecology, the American Board of Family Medicine, and the Secretary of the U.S. Department of Homeland Security are defendants in the AAPS complaint. The district court, by dismissing all claims with prejudice and denying AAPS the opportunity to amend its complaint, violated the Federal Rules of Civil Procedure, the appellate court states in an opinion published on June 3.

The ruling sends the case back to the U.S. District Court for the Southern District of Texas for discovery and, potentially, a full trial.

 Judge Says Case Not Moot

In the AAPS case, appellate court Judge James Ho dissented, in part, because the district court had dismissed the case on the grounds the issue was “moot” after the U.S. Department of Homeland Security dissolved an advisory board that influenced the credentialing boards.

“(W)hen government officials voluntarily cease some action in response to litigation, courts are supposed to be skeptical,” wrote Ho. “[An official] could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.”

The remand to the district court will allow the case to proceed on claims of infringement of freedom of speech. “We agree with the separate opinion by Judge James Ho on this point of how our claim against the Biden Administration for its censorship is not moot,” said Andrew Schlafly, the attorney representing AAPS.

Getting to the Real Issue

In an unrelated case, the Fifth Circuit previously ruled the Food and Drug Administration must restore safety protocols for the abortion pill, mifepristone, in August 2023.

The plaintiffs in that case, the Alliance for Hippocratic Medicine, a physicians’ group, argued the removal of safety measures in prescribing mifepristone would force them to complete procedures that violated their conscience. The case was appealed to the U.S. Supreme Court, which decided in June the plaintiffs lacked standing.

In his opinion, Ho likened the plaintiffs’ argument to that of environmental advocates who have claimed “aesthetic injury” from violations of the Endangered Species Act.

One Physician’s Ordeal

In another First Amendment case, the American Board of Internal Medicine instituted a COVID-19 misinformation policy in 2021.

The board then retroactively accused Peter McCullough, M.D., a professor of medicine and academic physician with more than 30 years’ experience, of misinformation based on his March 2021 testimony before the Texas Senate, where he publicly questioned the safety, efficacy, and longevity of the vaccines. There was no type of due process. McCullough was then released from two jobs at a major medical center.

McCullough says he was targeted because he spoke out.

“I was brought into peril because I answered questions honestly under oath,” McCullough said. “I then provided documentation and evidence [to the board] supporting all of my points. The board had a closed meeting and said that nothing I put in my response document had convinced them.”

McCullough was given 10 days to appeal the process; he did. The case has been on appeal since the fall of 2022. “As a doctor, I have a right to present and publish data and offer my analysis and comments under oath and in the press,” said McCullough. “There are procedural errors to what [these boards are] doing with a lack of due process, following no rules of evidence.”

Silencing Dissent Elsewhere

In a free speech case that has been resolved, Scott Jensen, M.D., a former Minnesota state senator and candidate for governor, was investigated a total of six times by the state Board of Medical Practice. Jensen was an outspoken critic of pandemic policies, especially payments by the federal government to hospitals for COVID-19 diagnoses, initiating intubation,  and declaring COVID-19 as a cause of death.

The board dismissed all charges and ended its investigations against Jensen in March 2023.

“During my run for governor, the incumbent used the accusations of these investigations to discredit me,” said Jensen. “They hung like a gray cloud over my campaign.”

A ruling against these all-powerful boards in the AAPS case, “would emphasize that while they have jurisdiction over professional conduct, they do not have jurisdiction over political speech,” said Jensen. “The AAPS win at the appellate court…is a clear directive saying that [boards] cannot do this. There is a line between political speech and professional conduct.”

First Amendment vs. Censorship

Now that the AAPS case will move forward in discovery, it could reveal the involvement of the federal government in the specialty board’s actions, says McCullough.

“The genesis of the ABIM misinformation policy needs to be examined,” said McCullough. “Questions to ask include, where did this policy come from? Did it come from a federal agency? Did it come from an intelligence service? Was there a flow of money?”

“These First Amendment cases, including ours, are enormously and increasingly important today,” said Schlafly. “Many of the most important legal and political struggles now are on the First Amendment issue. If the worsening liberal censorship prevails, then many of our freedoms will disappear as a result.”

Ashley Bateman (bateman.ae@googlemail.com) writes from Virginia.