Abstract
In 2022, California was grappling with the COVID-19 pandemic. Heightened political polarization and the unmitigated spread of misinformation was straining state and federal governments’ ability to rein in the pandemic through collective action. The Federation of State Medical Boards (FSMB) issued a warning that doctors spreading misinformation were violating their ethical and professional responsibility to accurately inform their patients. In response, California passed AB 2098, classifying COVID-19 misinformation in the patient-doctor context as unprofessional conduct subject to stiff penalties, including suspension or loss of the offender’s medical license. The law was quickly challenged in federal district court on content-neutrality and vagueness grounds. Fearing a loss on appeal, the California Legislature repealed AB 2098 in late 2023.
This Note traces the history and evolution of First Amendment law, with a focus on content neutrality in the professional speech context, and offers an explanation for AB 2098’s failure. The Note then argues that recent Supreme Court jurisprudence dealing with the intersection of the First Amendment and professional speech regulations has given well-funded public interest firms a valuable constitutional tool to oppose perceived government overreach in this area. In order to respond to AB 2098’s failure and deal with the misinformation problem for the next pandemic, this Note offers two solutions. First, the Supreme Court should carve out an exception to ordinary content-neutrality principles in the professional speech context. Second, California should beef up the enforcement power of its medical board by raising licensing fees and lowering the evidentiary standard in disciplinary proceedings.
Recommended Citation
Brennan O'Boyle,
Freedom to Misinform: The First Amendment Victory Against California’s Medical Speech Law,
58 Loy. L.A. L. Rev. 269
(2025).
Available at: https://digitalcommons.lmu.edu/llr/vol58/iss1/6
