United States Court of Appeals; Fifth District Reverses Lower Court Decision; Motion To Grant Review on Government Medical Censorship
The American Association of Physicians & Surgeons censorship efforts by medical licensing boards contends that those acts violate not only the First Amendment, but also federal antitrust law.
It’s been over four years now since the outbreak of Covid-19 and the subsequent civil liberties violations on ordinary citizens, the medical community and employees alike. The lawsuits from many jurisdictions are finally working through the court system and winning appeal motions at higher State and Federal Court of Appeals. Someday, America will prevail and win legal remedy for the harm associated with the draconian measures placed on so many communities. Today we have an opportunity to celebrate because a new motion of appeal has been granted.
The Fifth District Court of Appeals has accepted a motion to appeal from an unfavorable lower court ruling in the respect to the The Association of American Physicians and Surgeons Educational Foundation (“AAPS”) that of the national medical specialty certifiers American Board of Internal Medicine (“ABIM”), American Board of Obstetrics & Gynecology (“ABOG”), American Board of Family Medicine (“ABFM”) (together, the “Board Defendants”) and Alejandro Mayorkas, as Secretary of the U.S. Department of Homeland Security (“Department”).
The above government and medical association bodies coordinated to censor and chill the speech of physicians, including some associated with AAPS, who spoke critically of positions taken by Dr. Anthony Fauci, lockdowns, mask mandates, Covid vaccination, and abortion. This was and continues to be done by labeling dissenting views as misinformation, disinformation, and malinformation, and the Board Defendants have expressly threatened to strip certification from otherwise qualified physicians who express such views. According to AAPS, Appellees’ efforts to censor and punish physicians on issues of public concern harmed and continue to harm AAPS. AAPS brought a host of claims against the Board Defendants and Department, including First Amendment and antitrust claims. The District Court dismissed all of AAPS’s claims with prejudice, reasoning that it lacked standing to assert its claims against the Board Defendants and that the Department mooted claims against it by dissolving the Disinformation Governance Board (“DGB”), which AAPS alleged was responsible for censorship. It also denied AAPS the ability to amend its complaint even once under Galveston Division Local Rule 6, with no analysis for doing so.
AAPS contends, the Board Defendants’ threats to strip certification improperly chilled speech without the political accountability of official state medical boards. And, through this chilling of speech, the Board Defendants interfered with the market for medical conferences and posting of such conferences to the internet. Some examples of chilling by the Board Defendants includes ABOG sending letters to all certified physicians threatening to strip them of their invaluable certification for making statements concerning abortion and contraception, or for warning pregnant women that the Covid vaccine could have negative side effects. ABIM and ABFM sent similarly threatening letters on May 26, 2022, to certified physicians for making statements disagreeing with positions taken by Dr. Fauci and the Biden Administration in handling the Covid pandemic. Indeed, AAPS notes that one of its conference speakers had his certification stripped by ABFM pending appeal.
AAPS sued Appellees on July 12, 2022, in the Southern District of Texas, alleging First Amendment and antitrust violations against the Board Defendants, First Amendment and APA violations against the Department, and requesting declaratory and injunctive relief. The District Court denied AAPS leave to amend its complaint based on Galveston Division Local Rule 6, even though AAPS had not been afforded even one chance to amend. Id. AAPS timely appealed.
The District Court dismissed AAPS’s First Amendment claims against the Board Defendants on standing grounds, reasoning that it met none of the doctrine’s requirements. “To have standing, a plaintiff must (1) have suffered an injury in fact, (2) that is fairly traceable to the challenged action of the defendant, and (3) that will likely be redressed by a favorable decision.”
“AAPS has an injury-in-fact through a First Amendment right to hear, and requiring it to identify a specific “willing speaker” in its complaint is premature.”
One can trace AAPS’s injury in this direction as well, drawing all inferences in AAPS’s favor, and applying the lower threshold used in evaluating standing for First Amendment claims, it is indeed plausible that the Board Defendants would act like the social media companies in Missouri v. Biden. They would “likely act in [a] predictable” fashion when told by the Department to suppress dissenting opinions because they would be “reluctant to risk the adverse legal or requirement in the First Amendment context). So, potential plaintiffs where limited to Dr. Anthony Fauci, COVID-19 lockdown policies, mask mandates, vaccines, and abortion to bring First Amendment claims against private parties must plausibly allege that they satisfy the state action requirement.
In this case, a medical association contends that certain medical boards and federal officials have conspired—and continue to conspire—to censor and even destroy the careers of any physician who dares to express the “wrong” viewpoints on a wide range of medical topics, including but not limited to Dr. Anthony Fauci, COVID-19 lockdown policies, mask mandates, vaccines, and abortion.
In April 2022, Secretary Alejandro Mayorkas announced the establishment of the Disinformation Governance Board within the U.S. Department of Homeland Security. This announcement followed public pleas from the White House for social media companies and media outlets to stop spreading “misinformation” regarding COVID-19. As the district court acknowledged, the Board’s stated purpose was to “guide and support the Department’s efforts to address mis-, dis-, and mal-information that threatens security.” The Department paused the Board in May 2022. At that time, Mayorkas asked an advisory council within the Department to evaluate the Board and offer insight on how the Department could “effectively and appropriately address disinformation.” The council formed a subcommittee that met throughout the summer.
The association requested that the district court enjoin the Department to abolish and “permanently discontinue” the Board and comply fully with Federal Advisory Committee Act (FACA). The association also sought declaratory relief.
That said, the majority has made clear that the association will have the opportunity to add new claims against the government on remand. Before the district court, the association contended that dissolution of the Board did not terminate the government’s campaign of censorship against disfavored viewpoints. To the contrary, the association alleged that the Department was simply dispersing the Board’s intended functions to others, citing among other things the subcommittee’s final report. The district court refused to allow the association to proceed on these theories. The majority rightly concludes that the district court’s refusal was erroneous, and that the association will have leave to amend.
The association also alleges censorship efforts by medical licensing boards, and contends that those acts violate not only the First Amendment, but also federal antitrust law. At present, the association pleads a monopolization claim under § 2 of the Sherman Act. 15 U.S.C. § 2. Economic actors who hold a monopoly violate this section “when [they] exercise [their] power to . . . exclude competitors from the relevant market.”
The district court found that the association lacks antitrust standing because it is not a competitor, purchaser, or consumer of the licensing boards. But the district court also acknowledged that physicians could suffer antitrust injury from a violation. On remand, the association is welcome to add a physician to its complaint.
In America, we don’t fear disagreement—we embrace it. We persuade—we don’t punish. We engage in conversation—not cancellation. We know how to disagree with one another without destroying one another.”
The association will have full and fair opportunity to amend its complaint on remand to the Fifth District of Appeals further refining their claim and adding a physician(s).
One day in the future, a favorable ruling will prevail so that physicians will be able to “independently and with injury” advise and consult with their medical expertise without fear of reprisal from any medical association and without collusion with our very own federal government agencies.
We will be watching this case and others very closely. Have a blessed day.
Court brief: https://aapsonline.org/judicial/aaps-v-abim-fifth-circuit-6-3-2024.pdf
A stunning development on medical censorship by medical boards and medical associations! This means that after this is upheld, people/politicians like Gov. Newsom cannot pass bills like AB 2098, the "disinformation" bill.
Will it stop the WHO/UN/WEF from censoring THE TRUTH? I hope it stops doctors from being MURDERERS!