[00:00:03] Speaker 03: Okay, so the next matter on calendar is Pierre Corey et al versus Rob Bonta, case number 24-2946. [00:00:15] Speaker 03: Each side has 20 minutes. [00:00:18] Speaker 03: Good morning. [00:00:19] Speaker 01: Good morning, Your Honors. [00:00:21] Speaker 01: Richard Jaffe for the plaintiff's appellants. [00:00:24] Speaker 01: I'd like to reserve five minutes, if possible. [00:00:33] Speaker 01: May it please the court. [00:00:37] Speaker 01: I'd like to do a couple of things today. [00:00:38] Speaker 01: First thing I'd like to talk about is the context of the case. [00:00:42] Speaker 01: And I think that's important because this is now what I would call the second battle in what I am calling the COVID misinformation wars. [00:00:52] Speaker 01: The first battle was AB 2098. [00:00:55] Speaker 01: And I believe in this court facility [00:00:59] Speaker 01: some members of the court actually heard the McDonald versus Lawson appeal. [00:01:06] Speaker 01: And that was really, and I think that was important to understand that this is not, this battle, these wars really started in early 2022 with the legislature considering AB 2098 and the medical board [00:01:25] Speaker 01: introducing, basically saying that they're going to adopt the Federation's policy of July 21. [00:01:33] Speaker 01: So the context of the case is for now almost two or three years, [00:01:40] Speaker 01: The courts and the country have been dealing with how do you deal with information, controversial information. [00:01:48] Speaker 01: And I know that's something two of the judges are familiar with, controversial information. [00:01:53] Speaker 01: How does the country deal and the courts deal with controversial information that may be against the mainstream narrative? [00:02:03] Speaker 01: How did they deal with that? [00:02:05] Speaker 01: Well, I have to say, just as a matter of personal thing, [00:02:11] Speaker 01: One of the members of the panel has actually, what I think, created the modern law of physician speech. [00:02:18] Speaker 01: And that was basically Conant v. Walters. [00:02:22] Speaker 01: Up until that time, I don't think it was clear what the rights of physicians were. [00:02:28] Speaker 01: It wasn't clear, because historically speaking, and let me just digress a little bit. [00:02:33] Speaker 01: We talked about this in the briefing. [00:02:35] Speaker 01: You had Justice Jackson talking about an effective dichotomy between speech to clients and speech to public, which is adopted by Justice White. [00:02:48] Speaker 01: in SEC versus Low. [00:02:51] Speaker 01: And until that point, it could have gone either way. [00:02:54] Speaker 01: We could have had the law that everything within the confines of a doctor-patient relationship was fair game to the board based on those two decisions. [00:03:05] Speaker 01: But we didn't, because Judge Schroeder and her colleagues created the concept that information and advice [00:03:15] Speaker 01: is fully protected speech. [00:03:18] Speaker 01: And that was, in my view, quite novel. [00:03:20] Speaker 01: It could have been the other way. [00:03:22] Speaker 01: And then what happened in Pickup is I personally think that what the panel in Pickup did is they sort of adopted Jackson's and White's view about [00:03:37] Speaker 01: giving no protection or less protection to speech in the confines of relationship. [00:03:44] Speaker 01: And they split the baby. [00:03:46] Speaker 01: They basically did a solomatic split. [00:03:49] Speaker 01: And they created this middle ground of intermediate scrutiny. [00:03:55] Speaker 01: But I think the critical part of this case is that the speech and the intermediate scrutiny [00:04:03] Speaker 01: was the same speech that was fully protected in Conant. [00:04:08] Speaker 01: but was now given intermediate scrutiny. [00:04:12] Speaker 01: It was still protected. [00:04:13] Speaker 01: And why is that important? [00:04:15] Speaker 01: Because even though this sexual orientation therapy was dangerous, every medical association thought it could harm patients. [00:04:27] Speaker 01: They were saying it was going to kill kids by trying to convince them not to be gay. [00:04:33] Speaker 01: It was highly controversial. [00:04:35] Speaker 01: The auto opinion, which this court has a disagreement with, has an extensive analysis of the controversy there. [00:04:43] Speaker 01: And even SB 1172, the first part of it is just a list of every single medical organization that was opposed to this speech. [00:04:54] Speaker 03: Well, with the psychotherapy part of it, the conduct itself is, that's the treatment. [00:05:01] Speaker 03: Exactly. [00:05:01] Speaker 03: Yours is a little trickier. [00:05:03] Speaker 03: Because I think, obviously, because we have the medical board and the DO board, obviously, I think we can probably all agree at some level have a right to expect, evaluate the treatment that doctors are giving to their patients and certain conduct would fall below [00:05:32] Speaker 03: the standard of care. [00:05:35] Speaker 03: Can you clarify whether you're bringing a facial or an as-applied challenge to 2234? [00:05:43] Speaker 01: Yes, ma'am. [00:05:44] Speaker 01: We are not making a facial challenge to the words of Section 2234C. [00:05:51] Speaker 01: And we are not making, as applied challenge, with respect to the doctors, the plaintiffs in this case. [00:05:58] Speaker 01: And I think that's how the case has been misinterpreted. [00:06:01] Speaker 01: The case we are bringing [00:06:03] Speaker 01: is we're saying that we know there's a policy in practice. [00:06:07] Speaker 01: We know from Kristen Lawson's statement. [00:06:10] Speaker 01: We know the context of the case. [00:06:12] Speaker 01: For three years, the medical board has been trying to regulate this kind of contact. [00:06:18] Speaker 02: We know that. [00:06:19] Speaker 02: Can I interrupt for a clarification? [00:06:20] Speaker 02: You say something about as applied. [00:06:24] Speaker 02: You say we're not bringing an as applied challenge with respect to these plaintiffs. [00:06:28] Speaker 02: Did I misunderstand you? [00:06:30] Speaker 02: I'm having trouble understanding what you mean when you're talking about as applied. [00:06:35] Speaker 01: An as applied challenge is basically a challenge brought by certain parties that's only going to apply to those parties. [00:06:47] Speaker 01: Our case is we are seeking a ruling on the policy and practice. [00:06:56] Speaker 01: It's a facial challenge to a policy and practice. [00:06:59] Speaker 03: That doesn't make any sense if you're make the court found you didn't have standing for an as-applied challenge We're not making an as-applied challenge. [00:07:09] Speaker 01: We're making a facial We're making a challenge to a policy in practice. [00:07:13] Speaker 01: There's all kinds of foot down Don't ask don't challenge that doesn't that doesn't what are you counsel? [00:07:20] Speaker 04: Can I ask what is it that you are challenging? [00:07:23] Speaker 04: What happened that brings you into court? [00:07:27] Speaker 04: What is there? [00:07:28] Speaker 01: And that has to do with the context. [00:07:30] Speaker 01: Originally, we came into court because there was a statute. [00:07:34] Speaker 01: And what happened was, because Judge Shub, in my opinion, because Judge Shub issued the plenary injunction, and because of the frosty reception this court gave to the government, they withdrew the law under SB 815. [00:07:52] Speaker 01: But at the same time they withdrew the law, the spokesman for the bill's author of 2098 said, look, they can still do what they're going to do under the general statute. [00:08:03] Speaker 01: And at the same time, the same article presented one case where they've already done it. [00:08:08] Speaker 03: That's an unsupplied challenge. [00:08:10] Speaker 03: That's not a facial challenge. [00:08:12] Speaker 04: Are you challenging the statement of the legislator? [00:08:17] Speaker 04: I don't understand what it is out there that you're challenging that might be applied. [00:08:22] Speaker 01: Well, in February 2022, the president of the medical board issued, essentially said she's adopting the federation's policy. [00:08:34] Speaker 01: She put that in the record in the case. [00:08:37] Speaker 01: That statement constitutes [00:08:41] Speaker 01: correctly or incorrectly, a policy. [00:08:43] Speaker 01: It's a policy. [00:08:44] Speaker 01: Policies can be challenged. [00:08:46] Speaker 01: They're not necessarily, as applied challenge, don't ask, don't tell. [00:08:51] Speaker 01: Informal action can be challenged. [00:08:54] Speaker 01: I think there's a case by Judge [00:08:57] Speaker 01: Brennan about this bantam books. [00:09:01] Speaker 01: Informal action can be challenged. [00:09:03] Speaker 01: It doesn't make it an as-applied challenge. [00:09:05] Speaker 02: We are saying that... But help me understand what exactly is it that your clients are challenging and how are they doing? [00:09:12] Speaker 02: This case keeps slipping away from me. [00:09:17] Speaker 02: I don't understand exactly what they say is protected conduct that they're forbidden from doing. [00:09:25] Speaker 01: Providing what? [00:09:27] Speaker 01: Well, what forbids it is [00:09:29] Speaker 01: The policy and practice. [00:09:31] Speaker 01: When you say forbids it, forbids what? [00:09:34] Speaker 01: OK. [00:09:35] Speaker 01: The speech that is forbidden is information and opinions, which are not consistent with what I call the mainstream COVID narrative. [00:09:45] Speaker 01: And the specific examples of that, the big examples would be the safety and efficacy of vaccines. [00:09:52] Speaker 02: But if it's a general statement, we know that's protected. [00:09:55] Speaker 02: That's what NIFLA tells us. [00:09:56] Speaker 02: But what you're challenging is a specific treatment statute that talks about treatment. [00:10:03] Speaker 01: With respect, Your Honor, let me be very, very clear. [00:10:07] Speaker 01: We are not asserting that there's a First Amendment right for Dr. Corey or any doctor to write a prescription for ivermectin or HCQ or anything. [00:10:18] Speaker 01: I think everyone is clear, and this is what was made clear in Conant. [00:10:24] Speaker 01: The writing of a prescription is a medical act, which is within the heartland [00:10:30] Speaker 01: of what medical boards do. [00:10:32] Speaker 01: There's no doubt about that. [00:10:33] Speaker 01: The issue in this case is whether or not doctors can tell patients, can give them information, can make recommendations. [00:10:44] Speaker 03: I understand what you're saying, but it makes a difference whether it's a facial challenge or an as-applied challenge. [00:10:51] Speaker 03: Because a facial challenge, and Judge Shubb said this, and that it regulates conduct here. [00:10:58] Speaker 03: And so it's not facially infirm under that basis. [00:11:04] Speaker 03: The question just is, and they can regulate the standard of care and what the doctor actually does. [00:11:14] Speaker 03: But it's different than the conversion case because along with [00:11:23] Speaker 03: what you do, what you decide to do, you also give the person information. [00:11:28] Speaker 03: So what part of that information is part of the conduct or what part of so and I'm going to ask the government these questions. [00:11:38] Speaker 03: Where in the process of advising someone [00:11:42] Speaker 03: Can you talk about the risks, the benefits, and all of that? [00:11:47] Speaker 03: Or where does that become speech as a part? [00:11:51] Speaker 03: Because it would appear that Reina, if you looked at her complaint, they were roping in some of her language as part of the conduct that they intended to regulate. [00:12:08] Speaker 03: So what part of the [00:12:11] Speaker 03: the discussion that a doctor has with a patient is part of the conduct. [00:12:19] Speaker 01: I think the answer to that question is from the case law. [00:12:22] Speaker 01: I think we know that when the speech is the scalpel, that's unprotected. [00:12:27] Speaker 01: That's tingling. [00:12:28] Speaker 01: And I think the issue is the speech is conduct only if it's incidental to some treatment. [00:12:37] Speaker 01: Some treatment. [00:12:38] Speaker 01: And this case is not about that. [00:12:40] Speaker 01: It's not about Dr. Corey, for example, eventually writing the prescription. [00:12:46] Speaker 01: I think it's clear in the case law. [00:12:48] Speaker 01: I don't think it is what it is. [00:12:50] Speaker 01: It's clear in the case law if Dr. Corey writes a prescription for ivermectin. [00:12:55] Speaker 01: then the discussion or the informed consent prior to that would be incidental to the conduct. [00:13:02] Speaker 01: But what happens in COVID now is you don't have to even read papers to know that you don't have to go to a doctor's office and pay an office visit to get the vaccine. [00:13:13] Speaker 03: Okay, but is recommending the use of Evermectin or recommending that a patient not take a COVID vaccine speech incident to the treatment? [00:13:23] Speaker 01: Now, what treatment? [00:13:25] Speaker 01: I would say the answer to the question definitively, for me, you might not like the answer, and you might not, is that no. [00:13:32] Speaker 01: Just based on Connaught and Pickup, information and recommendations about an illegal or a banned treatment is speech, as long as you don't give the treatment or you don't write the prescription. [00:13:49] Speaker 01: I take that to be [00:13:52] Speaker 01: the black law of the law in this case. [00:13:57] Speaker 02: I'm having trouble getting my bearings in this case. [00:14:00] Speaker 02: I think you're challenging 2234, is that right? [00:14:05] Speaker 01: Actually, no. [00:14:06] Speaker 01: What I'm challenging is the board's policy. [00:14:08] Speaker 04: Where did we find this? [00:14:12] Speaker 01: Well, I would say it's the February 2022 statement by the board director, Kristen Lawson, that said that they are adopting the Federation's policy. [00:14:25] Speaker 01: It's there in black and white. [00:14:27] Speaker 01: And by the way, in this Bantam case, even in formal actions, even coercion. [00:14:30] Speaker 01: So why did Judge Shub think you were challenging 2234? [00:14:34] Speaker 01: Because what we are doing, because what we made is we made a variation of what is somewhat, sometimes called a facial challenge under fatigue and vunch. [00:14:45] Speaker 01: There's all different formulations, and this goes really to perhaps the confusion. [00:14:50] Speaker 01: There's a body of case law that says that if, even if the words of the statute are facially neutral, strict scrutiny, [00:15:01] Speaker 01: If it applies to protected information, a large degree of protected information, that is what Foddy called a variation of the facial challenge. [00:15:13] Speaker 01: Or you could call it bigness. [00:15:14] Speaker 02: So tell me again exactly what it is you're challenging? [00:15:18] Speaker 01: The board's policy of threatening to sanction doctors. [00:15:25] Speaker 01: for speaking out to patients against the mainstream COVID narrative. [00:15:30] Speaker 01: It's very clear policy, and that's what the context about. [00:15:33] Speaker 01: They've been doing this since early 2022. [00:15:36] Speaker 03: Yeah, but you're doing it in the purview of 2234, and you're saying 2234 allows that to occur. [00:15:45] Speaker 03: Like, for example, Dr. Raina [00:15:48] Speaker 03: In exhibit A, it alleges that Dr. Raina advised patient A against being vaccinated. [00:15:55] Speaker 03: And if so, doesn't that mean that the state is enforcing 2234 based on the content of this physician's speech? [00:16:05] Speaker 01: 2234 is the statutory basis for the implementation of the policy. [00:16:13] Speaker 01: Any time the board does something, has a policy, it has to have a statutory basis. [00:16:17] Speaker 02: So you are challenging 2234. [00:16:19] Speaker 01: as under FODY and that line of cases, which is not a facial challenge to the words, it's a challenge because the statute is so broad, or you could call it over-breadth. [00:16:32] Speaker 01: Now, which statute, 2234? [00:16:33] Speaker 01: 2234.C is so broad that... Wait a minute, just let me just read it to you. [00:16:39] Speaker 02: It says, repeated negligent acts. [00:16:41] Speaker 02: To be repeated, there must be two or more negligent acts or omissions. [00:16:46] Speaker 02: Negligent act or omission followed by a separate and distinct departure from the applicable standard of care shall constitute repeated negligent act. [00:16:54] Speaker 02: And the head for this is unprofessional conduct. [00:16:58] Speaker 02: Correct. [00:16:58] Speaker 02: So I don't understand your argument. [00:17:00] Speaker 01: The argument is that the statute as interpreted to be the basis... That's an as applied challenge right there. [00:17:09] Speaker 01: Your Honor, under FODE, that's considered a subset of a facial challenge. [00:17:16] Speaker 01: That line of cases, which we cited in our brief, which accepts the terms of the statute as being neutral, but it applies to a broad range of conduct which is protected. [00:17:29] Speaker 01: And I would argue, as a matter of law, as Judge, you said, we know from NIFLA that you can't take a whole category of speech. [00:17:39] Speaker 01: and consider it unprotected. [00:17:41] Speaker 01: And that's exactly what Judge Shubb did. [00:17:44] Speaker 02: I don't think that's what he did at all. [00:17:46] Speaker 02: He said, you're challenging the application of 2234. [00:17:50] Speaker 02: I don't see any allegation here by these plaintiffs that they alleged any injury to themselves. [00:17:57] Speaker 02: I mean, on his face, 2234 says, we're regulating conduct. [00:18:03] Speaker 02: That's exactly what they're saying. [00:18:04] Speaker 02: It's basically a malpractice statute. [00:18:07] Speaker 01: Here's the words of Judge Shubb that's operative, because what you're referring to is on the standing issue. [00:18:16] Speaker 01: The substantive part of Judge Shubb's decision is basically the following two sentences, and I think you can see clearly what he's doing on the First Amendment issue. [00:18:26] Speaker 01: This is from the record 12. [00:18:30] Speaker 01: And the First Amendment does not prevent a state from regulating treatment, even when the treatment is performed through speech alone. [00:18:39] Speaker 01: And that's pick up and tingling. [00:18:41] Speaker 01: So we know that. [00:18:42] Speaker 01: And here's the issue. [00:18:44] Speaker 01: Then, when a doctor speaks in his capacity as the patient's treating physician, [00:18:51] Speaker 01: An incident to his provision of medical care, the physician's words constitute medical care. [00:18:59] Speaker 01: That is a violation of NIFLA on its face. [00:19:03] Speaker 02: I disagree. [00:19:04] Speaker 02: That's not how I read NIFLA. [00:19:06] Speaker 04: Do you want to save a little time? [00:19:09] Speaker 01: I'm sorry, Judge Schroeder? [00:19:10] Speaker 04: I just asked if you wanted to save. [00:19:12] Speaker 04: You have a minute left. [00:19:15] Speaker 04: Save the time? [00:19:17] Speaker 01: Sure. [00:19:18] Speaker 01: I'll take the time. [00:19:18] Speaker 01: Thank you. [00:19:20] Speaker 01: I have one minute left for rebuttal. [00:19:22] Speaker 01: Yeah. [00:19:22] Speaker 01: Okay. [00:19:22] Speaker 01: I'll save that. [00:19:23] Speaker 01: Okay. [00:19:24] Speaker 03: Thank you. [00:19:39] Speaker 03: Good morning. [00:19:40] Speaker 00: Good morning, Your Honor. [00:19:41] Speaker 00: Kristin Liska on behalf of the defendants in this case. [00:19:44] Speaker 00: May it please the court. [00:19:45] Speaker 00: I'd like to sort of pick up with the colloquy that this court just had with my friend on the other side. [00:19:50] Speaker 00: I think what plaintiffs here are trying to do is sort of seek an advisory opinion. [00:19:55] Speaker 00: They want this court to tell them that they can say what they want about COVID, but they don't have standing to do that, as the lower court correctly found below. [00:20:02] Speaker 03: Their argument is... Well, see, I guess I just... He doesn't seem to want to have standing on [00:20:10] Speaker 03: an as-applied challenge. [00:20:12] Speaker 03: I think there is standing as to an as-applied challenge because I think you have situations where I think the state would, is creating a, I don't think on a facial challenge, I think it's conduct. [00:20:29] Speaker 03: As the as-applied, it doesn't seem that you're disavowing certain things. [00:20:35] Speaker 03: I do think what the accusation of Dr. Raina [00:20:38] Speaker 03: what is relevant here. [00:20:40] Speaker 03: That doesn't mean that I'm not sure that you don't litigate the whole thing, but it seems the accusation against doctor Raina shows that you will subject physicians to discipline under 2234 for advising patients against being vaccinated. [00:20:58] Speaker 03: And if you look at exhibit a at three, [00:21:00] Speaker 03: She advised patient A against being vaccinated. [00:21:05] Speaker 03: If so, doesn't this mean that you are enforcing 2234 based on the content of the physician's speech? [00:21:14] Speaker 03: Also, the accusation against Dr. Reyna shows that you will subject physicians to discipline under 2234 for advising them to purchase. [00:21:25] Speaker 03: Ivernectin Exhibit A at four, alleging that Dr. Raina directed them to purchase this medication. [00:21:34] Speaker 03: So I think you're not disavowing that you won't prosecute people for their speech, and you acknowledge that they do have a right to a certain amount of speech, but it seems that [00:21:53] Speaker 03: there's an area of speech incident to treatment. [00:21:57] Speaker 03: And that is everything a doctor talks about to the patient conduct. [00:22:04] Speaker 03: Some of it is. [00:22:05] Speaker 03: Some of it's gotta be. [00:22:07] Speaker 00: I think there's a couple things there. [00:22:09] Speaker 00: I'll start with the standing point that your honor just raised, and then I can turn to the question about conduct unless you'd like me to start. [00:22:15] Speaker 03: The other side's totally confusing me because I don't, in saying that they're not challenging 2234, and if I had been judged shoved down there, I think that's totally what he thought they were doing. [00:22:27] Speaker 03: It's not the prior statute that was withdrawn. [00:22:31] Speaker 03: It's 2234. [00:22:33] Speaker 00: So let me start with this question about as applied standing and 2234. [00:22:38] Speaker 00: I will then turn to your question about conduct and speech since I do want to make sure I get there, but I'll start with the standing point. [00:22:45] Speaker 00: So plaintiffs argue that there is this sort of policy or practice, but the evidence that they put forth and I want to reiterate, we're not here on a motion to dismiss. [00:22:53] Speaker 00: This isn't about allegations in the complaint. [00:22:55] Speaker 00: This is a preliminary injunction appeal. [00:22:57] Speaker 00: So the burden is on plaintiffs to show a substantial likelihood that they're going to prevail on showing standing on the merits. [00:23:03] Speaker 00: All that we really have is this one allegation, which is one accusation that has been brought in over four years of the pandemic. [00:23:10] Speaker 00: So the idea that there is a [00:23:11] Speaker 00: enforcement policy, emphasizing COVID, that the board is going after COVID specifically. [00:23:17] Speaker 00: I think one accusation in four years really pushes back against that idea. [00:23:22] Speaker 03: Well, but what's your case that said that one's not enough? [00:23:26] Speaker 03: Standing is a pretty minimal standard. [00:23:29] Speaker 03: And if they have standing in an as applied challenge, then the way you evaluate for the preliminary hearing is different. [00:23:38] Speaker 03: If that was error to deny standing. [00:23:41] Speaker 00: So if this court looks to a case like the Alaska Right to Life case that we cited in our brief, the question is, [00:23:46] Speaker 00: not is there a general risk that a statute will be enforced. [00:23:49] Speaker 00: It's will it be enforced as to these plaintiffs the way that they allege it will be enforced. [00:23:54] Speaker 00: So we don't argue that they could challenge 2234C generally, facially, because they are subject to it. [00:24:01] Speaker 00: Our argument is that they have not shown, for a pre-enforcement standing, that they are likely to face enforcement as to COVID-19 care that they're providing. [00:24:10] Speaker 03: Well, except for, it's a little bit like in police work. [00:24:15] Speaker 03: You know, you can beat the rep, but not the ride, okay? [00:24:19] Speaker 03: And so what you're saying is basically the fact, I mean, Dr. Raina being out there, Judge Shub said it wasn't relevant or he couldn't find it or whatever. [00:24:28] Speaker 03: I think it is relevant and I think once is enough to make standing. [00:24:32] Speaker 03: But then even once you, if you have standing, would you concede that it's a different challenge, it's a different standard? [00:24:41] Speaker 03: Or do you think it's still rational basis if you're, [00:24:44] Speaker 03: trying to regulate speech incidental to treatment, to conduct. [00:24:49] Speaker 00: So let me start with the first point about Dr. Reyna. [00:24:51] Speaker 00: And I do think that if you compare what Dr. Reyna was at issue in her accusation to what plaintiffs say, I do think it illustrates the difference, though. [00:25:00] Speaker 00: Dr. Reyna was not sanctioned simply for saying, I recommend you get the vaccine. [00:25:04] Speaker 00: If you look at page five of exhibit A, it specifically lists [00:25:09] Speaker 00: the following advice that fell outside the standard of care. [00:25:13] Speaker 00: It's about masks that the COVID-19 vaccines are not true vaccines, that they're produced with aborted fetal cell. [00:25:19] Speaker 00: And I also want to flag it specifically the use of veterinarian ivermectin, and I think that's salient. [00:25:24] Speaker 00: Because if you look at footnote one on page four, the board explicitly talks about how veterinary ivermectin is not intended for use in humans. [00:25:34] Speaker 00: And so the board signaled out not that she's recommending ivermectin, but that she recommended that her patients take veterinarian ivermectin, which includes dosages and ingredients, the footnote says in footnote one, that are not meant for humans. [00:25:48] Speaker 00: Plaintiffs have not pointed to a single doctor in the entire country who has faced discipline [00:25:53] Speaker 00: simply because they recommended taking ivermectin. [00:25:56] Speaker 00: We have a person who recommended veterinary ivermectin, but that's different. [00:26:00] Speaker 00: They do not say we want to tell our patients that we think the vaccine causes miscarriages. [00:26:05] Speaker 00: They do not say we want to tell our patients that we think it contains fetal cells. [00:26:09] Speaker 00: And I don't think that the board would disagree. [00:26:12] Speaker 03: What are you saying as the attorney general here? [00:26:15] Speaker 03: What speech is protected? [00:26:18] Speaker 03: Put yourself on the record here and tell us [00:26:20] Speaker 03: and say you're not going to prosecute people for what type of speech? [00:26:25] Speaker 03: What can they do? [00:26:27] Speaker 00: 2234C is targeted at the care that is provided to a patient. [00:26:31] Speaker 00: And so if a doctor's speech as part of providing that care falls below the standard of care, they can face liability under 2234C. [00:26:39] Speaker 00: And that is important. [00:26:41] Speaker 00: There needs to be guardrails on what doctors can say to patients. [00:26:43] Speaker 03: Let's say that, OK, I've gotten, and I'm disclosing this, I've gotten every vaccination that anyone would ever give me. [00:26:52] Speaker 03: I still have had COVID. [00:26:54] Speaker 03: You know, I've had so many pokes probably drinking this water, you would see the water shooting out of me. [00:27:01] Speaker 03: So I'm not an anti-vaxxer as far as that goes. [00:27:05] Speaker 03: But in the four years that this has been going on, there's many of us that have had every vaccine and have gotten COVID a bunch of times. [00:27:13] Speaker 03: So there's certainly a discussion that it seems that someone could have to say that vaccinations aren't effective, they're not recommended for certain people. [00:27:24] Speaker 03: But or in the mass, that's been a big debate as far as that goes. [00:27:29] Speaker 03: So how do we know that you're not going to just because it's the attorney general's philosophy or it's their policy that everyone needs to get be completely vaccinated? [00:27:41] Speaker 03: How can someone give that when they're talking to their patients? [00:27:46] Speaker 03: How can they give them that advice? [00:27:48] Speaker 03: So they say, I don't think you should get a vaccination because [00:27:52] Speaker 03: you're a young man, you're an athlete, I think there's chances that you might have some heart effects. [00:27:57] Speaker 03: The person doesn't get the vaccine and then they die of COVID. [00:28:00] Speaker 03: Did their conduct fall below the standard of care? [00:28:03] Speaker 00: This case is not actually about what the standard of care is. [00:28:08] Speaker 00: This case is simply about [00:28:09] Speaker 00: if the state may enforce discipline on physicians who violate it. [00:28:13] Speaker 00: And if you look at the declarations that talk about the disciplinary process. [00:28:16] Speaker 03: Well, I agree you can, but what part, but speech is part of that. [00:28:20] Speaker 03: So what part, what speech is protected for physicians about their view on COVID or their view on masking and what part is integral to the standard of care? [00:28:30] Speaker 03: I'm advising you not to have a vaccine. [00:28:33] Speaker 00: So if we're talking about a discussion taking place within the context of an exam room, and the speech is coming from the doctor to the patient as part of treating the patient, that is incident to the treatment. [00:28:43] Speaker 03: So everything the doctor says is, but that can't be right. [00:28:50] Speaker 03: So you're saying everything that is said is part of the care. [00:28:57] Speaker 00: The speech that is said as part of care. [00:29:00] Speaker 00: I know that this sounds maybe like I'm sort of talking in a circle here. [00:29:03] Speaker 00: It might be helpful. [00:29:05] Speaker 04: You're saying, aren't you saying that what the doctor advises the patient to do is part of the care? [00:29:11] Speaker 00: Yes, what a doctor advises a patient to do when treating them is part of the care they give. [00:29:15] Speaker 00: And it makes sense that this needs to be something the state can regulate. [00:29:19] Speaker 00: I mean, if a doctor wants to tell a patient who, say, has a liver problem, I recommend that you just take Tylenol for your pain. [00:29:26] Speaker 00: That could be a serious problem because Tylenol interacts poorly with people who have liver issues. [00:29:30] Speaker 03: So in order to... But what if they want to talk about that vaccines don't work for everyone? [00:29:36] Speaker 03: And I think that with your comorbidity factors, you shouldn't take a vaccine. [00:29:43] Speaker 03: Is that, are they below the standard of care for talking what their view on vaccines is? [00:29:49] Speaker 00: So this is, that's a very context and fact specific question. [00:29:52] Speaker 00: I think the board would agree that there are certainly times where the standard of care is consonant with a doctor not recommending someone get a vaccine. [00:30:00] Speaker 00: For instance, a patient. [00:30:01] Speaker 03: But everything, once you're in the treatment, everything the doctor says has no First Amendment protections. [00:30:08] Speaker 00: That is part of care. [00:30:09] Speaker 00: Yes. [00:30:09] Speaker 00: And I think it'd be helpful maybe to step back here and look at what's going on in the in the content case and how that compares and the case and how that comparison was going on here. [00:30:18] Speaker 00: Twenty two thirty four C is a statute targeted at care. [00:30:22] Speaker 00: We don't care what physicians do and say, as long as it is part of, if it's not part of their care and if it is not below the standard of care. [00:30:30] Speaker 00: If they say things that are within the standard of care, that's fine. [00:30:33] Speaker 00: They will face no discipline. [00:30:34] Speaker 00: Conant looked to what the physician said as divorce. [00:30:37] Speaker 03: I think he's saying, but the standard of care that they've said is for everyone to be vaccinated. [00:30:42] Speaker 03: So how can you talk to someone about the risk and benefits of getting vaccinated without being below the standard of care? [00:30:50] Speaker 00: Well, I think that I would disagree with the idea that the standard of care is that any person everywhere should be vaccinated. [00:30:56] Speaker 00: If anything, I think as I said, I believe the board would agree and I'm hesitant to state on the record that there's a specific thing that's inside or out because this is very fact specific. [00:31:05] Speaker 00: Who is the patient? [00:31:06] Speaker 00: What is their history? [00:31:07] Speaker 00: What are their maladies? [00:31:08] Speaker 03: But what you're saying is, but once you go in the treatment room, everything the doctor says is part of their care. [00:31:16] Speaker 03: There's no protective speech in that room. [00:31:20] Speaker 00: Insofar as we look at this statute, I think if you had a different statute that looked solely at the speech as divorced from the care, like what's going on in Conant, where it was about what the doctor said, regardless of whether they conformed with professional norms, regardless of how they treated that patient, what they said by itself. [00:31:37] Speaker 00: triggered the sanction. [00:31:39] Speaker 00: Here, it's only speech insofar as we have care that's occurring. [00:31:42] Speaker 00: We're targeting the conduct of caring for patients. [00:31:45] Speaker 00: The statute's not about suppressing dissent. [00:31:47] Speaker 00: It's not about informing, ensuring doctors adhere to an orthodoxy. [00:31:52] Speaker 00: It uses norms set by the medical community themselves or medical experts involved in the process of evaluating these complaints. [00:31:58] Speaker 00: It's about protecting patients. [00:32:00] Speaker 00: And the state has to ensure that when doctors speak while giving care, that they are adhering to a minimum level [00:32:06] Speaker 00: such that patients are not going to be harmed by receiving substandard care. [00:32:11] Speaker 02: So I think this is a qualification with which you would agree. [00:32:16] Speaker 02: Judge Callahan asked, well, is everything a doctor says during the, in the examination room or the treatment room protected? [00:32:26] Speaker 02: It's insulated from First Amendment. [00:32:28] Speaker 02: Does this say protected under the [00:32:30] Speaker 02: 2234 that can't quite be right meaning if the doctor says in the process of treating the placement Well, you know, there's an election coming out vote for X or don't vote for Y. Obviously, that's First Amendment But it seems to me your position is any advice given to the patient with respect to the care of the patient that comes under 2234 and [00:32:52] Speaker 00: Correct. [00:32:53] Speaker 00: That's speech incident to the conduct of caring for the patient. [00:32:56] Speaker 02: That seems a pretty straightforward reading of 2334. [00:32:59] Speaker 00: Yes, that is the position that we take. [00:33:02] Speaker 00: And plaintiffs have agreed that speech incidents to conduct can be regulated, and that is our position. [00:33:07] Speaker 00: And I think maybe something that might also help here with these questions about the standard of care [00:33:12] Speaker 00: is that the standard of care is not just one specific correct answer. [00:33:15] Speaker 00: The standard of care is more like a spectrum. [00:33:18] Speaker 00: There may be situations where different doctors may both agree on different courses of actions. [00:33:23] Speaker 00: One doctor may say I do X, one say Y. Both of those can be within the standard of care. [00:33:28] Speaker 00: But what the standard of care does is it kind of takes the things that are really beyond the pale off the table. [00:33:34] Speaker 00: And, you know, there may be some disputes about the nuances of things like recommending vaccines and masks, but I think everyone would agree that there are some things a doctor may say or do with respect to COVID that are beyond the pale. [00:33:46] Speaker 02: Recommending drinking bleach. [00:33:48] Speaker 00: Don't take horse medicine. [00:33:50] Speaker 03: Well, okay, doctor, is it, I don't know how you pronounce it, huang or huang? [00:33:57] Speaker 03: be subject, what is it? [00:33:59] Speaker 03: Wong. [00:33:59] Speaker 03: Would Dr. Wong be subject to possible discipline under 2234 if she recommends against taking the COVID vaccine? [00:34:08] Speaker 03: Do you disavow enforcing 2234 in this way? [00:34:13] Speaker 00: If her recommendation falls below the standard of care based on the facts of that patient situation, she can be subject to discipline. [00:34:21] Speaker 00: I just want to make clear that I don't believe the board's position is that if you say don't take the vaccine, you're automatically going to be subject to discipline. [00:34:29] Speaker 02: Because some patients shouldn't take it. [00:34:31] Speaker 00: Correct and maybe the reasons that you're giving are things like citing referencing, you know, specific studies that exist. [00:34:38] Speaker 00: You know, it is certainly a situation where a doctor can say here are the pros and cons. [00:34:42] Speaker 00: That's part of the process and the board, you know, informed consent laws require this, but you know, if a doctor is going to come in and say, don't take the vaccine because it makes you magnetic. [00:34:51] Speaker 00: you know that's something where yes the board may sanction that that doctor for violating the standard of care but a doctor who says given your personal medical history and you know what i know about you and your history i don't think you should take the vaccine that may well fall within the standard of care and this really emphasizes the problem with the as applied challenge the plaintiffs are bringing here is they really just want an order from this court that they can say whatever they want about COVID-19 [00:35:16] Speaker 00: No matter how far it goes. [00:35:17] Speaker 03: Would Dr. Tyson be subject to possible discipline under 2234 for informing patients that his research indicates that COVID vaccines lead to heart-related issues? [00:35:28] Speaker 03: Do you disavow enforcing 2234 in this way? [00:35:33] Speaker 00: So again, if on the facts in front of the board with the specific patients he said this to, there is a violation of the standard of care. [00:35:40] Speaker 00: In that situation, of course, this is within the context of repeated acts of negligence. [00:35:44] Speaker 00: So a single instance alone does not trigger 2234C. [00:35:48] Speaker 00: If there are repeated violations of the standard of care. [00:35:49] Speaker 03: So they could be prosecuted for either of those things. [00:35:52] Speaker 00: They could, just as they could face prosecution for violating the standard of care with respect to anyality they treat. [00:35:57] Speaker 03: But where do they get to? [00:35:58] Speaker 03: But then if the people that are deciding it, where do they get to? [00:36:02] Speaker 03: They get to voice [00:36:04] Speaker 03: I think what they were saying is if the medical board, if that's all they got and they put charges against them, then it says, even if you went on the other side, your reputation is harmed. [00:36:16] Speaker 03: So that alone would not subject them to prosecution. [00:36:22] Speaker 00: Unless if it violates the standard of care potentially, but by itself in the abstract, it's difficult to say. [00:36:28] Speaker 03: What if the doctor that's deciding the case thinks that anyone that [00:36:31] Speaker 03: if everyone isn't vaccinated, that's below the standard of care. [00:36:37] Speaker 03: There are people that actually believe that. [00:36:39] Speaker 03: You may have heard that. [00:36:41] Speaker 00: Two responses to that, Your Honor. [00:36:42] Speaker 00: The first is that if you look through the declarations that are submitted on our side, it's clear that there are two different medical experts who are retained by the board who review the complaints before an accusation is brought. [00:36:54] Speaker 00: And that process is confidential. [00:36:56] Speaker 00: And sometimes doctors are not even notified or involved, similar to bar discipline. [00:37:01] Speaker 00: all sorts of crazy complaints filed, it may not be worth bringing it up with the lawyers if it's obvious that there's nothing going on here. [00:37:08] Speaker 00: So there are two different medical experts who have to go through that process and say that they believe based on the facts there's a violation of standard of care before an accusation would even be brought. [00:37:17] Speaker 00: And then it is the burden is then on the board in front of the ALJs [00:37:21] Speaker 00: to demonstrate with experts that a standard of care violation has occurred. [00:37:25] Speaker 00: Plaintiffs can, of course, bring in their own experts to argue that there has not been one. [00:37:30] Speaker 00: So this is a standard set by the medical community. [00:37:32] Speaker 00: It's not the board alone that's setting forth this standard. [00:37:36] Speaker 00: And I think, again, this really illustrates to me the problem with an as applied challenge here. [00:37:41] Speaker 00: We don't have, we want to say the specific facts to the specific patient. [00:37:45] Speaker 00: We just have, we need to be able to say whatever we want about COVID. [00:37:48] Speaker 00: They want a disease specific exemption. [00:37:51] Speaker 00: You know, concerns about things like what is the standard of care apply to all diseases? [00:37:55] Speaker 00: Every disease was new ones. [00:37:57] Speaker 00: In the 1980s, when dealing with HIV and AIDS, no one said doctors get a free check from filing the standard of care just because the disease is new. [00:38:05] Speaker 00: So it's always been the case the standard of care is applied. [00:38:08] Speaker 00: So what was wrong with the predecessor? [00:38:10] Speaker 00: I can't speak to that. [00:38:12] Speaker 00: That was the legislature's decision with respect to repealing the statute. [00:38:15] Speaker 03: Because they thought it was a good idea. [00:38:16] Speaker 03: And you were defending that last time, right? [00:38:18] Speaker 03: But then Jeb told you, no go. [00:38:21] Speaker 00: Well, it is worth noting that the issues that arose under that statute were that Judge Shub, the basis of Judge Shub's prior preliminary injunction was a vagueness concern that applied to the specific language of that statute. [00:38:34] Speaker 00: In particular, it included the phrase contemporary scientific consensus, and the judge felt that was vague. [00:38:40] Speaker 00: That language is wholly absent from this statute, which just relies on the standard of care, which I think would be difficult to argue is unconstitutionally vague given its longstanding pedigree. [00:38:51] Speaker 03: So I still don't know if so do that. [00:38:54] Speaker 03: Do once the patient enters the room, do you have no First Amendment rights? [00:38:59] Speaker 00: with respect to the care and treatment you provide and the speech that you have to use as part of that care. [00:39:05] Speaker 00: I think the difficulty is, it's difficult to say that no speech that a doctor gives is part of care. [00:39:12] Speaker 00: Obviously, if a doctor says to you, look, I recommend that you take Advil for your pain. [00:39:17] Speaker 00: Make sure that you don't take more than this amount. [00:39:20] Speaker 00: I recommend that you try this medication. [00:39:22] Speaker 00: You can't take it with food. [00:39:23] Speaker 00: Don't drive when you operate. [00:39:25] Speaker 00: This is part of treating a doctor. [00:39:26] Speaker 00: Doctors have to speak as part of treatment. [00:39:29] Speaker 00: And so when the speech is part of treatment, the state needs to be able to regulate it to ensure that patients are protected. [00:39:35] Speaker 00: And there may be some line drawing problems at the margins that are difficult, but that should be brought up on the specific facts of those cases, not in this general disease specific exemption that plaintiffs want type of case. [00:39:48] Speaker 00: I see my time's up. [00:39:49] Speaker 00: If the court has no further questions, we would request that the court affirm. [00:39:53] Speaker 00: Thank you. [00:40:03] Speaker 01: First, Judge, if the court wants to consider a challenge on applied, I happen to think that the distinction, especially in the case when you talked about the right to receive information between as applied and not is somewhat- I'm just trying to apply the law, but you're not really helping me on this. [00:40:26] Speaker 01: Well, I'm sorry to hear that. [00:40:28] Speaker 02: I think the bottom line is... Maybe you can help me on this one. [00:40:31] Speaker 02: What exactly is it that these three individual plaintiffs want to do or want to say so I can understand what the challenge is? [00:40:40] Speaker 02: Because I don't understand what they're telling me they want to do. [00:40:43] Speaker 01: They want to give information like the kind set out in the declarations and the complaint, which is against the mainstream COVID narrative. [00:40:51] Speaker 01: And this whole case... Do they want to do it in the context of treating a particular patient? [00:40:57] Speaker 02: They want to give it, they want to discuss it with patients. [00:41:00] Speaker 02: And here is where... That's not my question. [00:41:02] Speaker 02: Do they want to do it while they are treating a patient? [00:41:06] Speaker 01: Not necessarily. [00:41:07] Speaker 02: What do you mean, not necessarily? [00:41:10] Speaker 02: I'm trying to pin things down. [00:41:12] Speaker 02: I'm having trouble. [00:41:13] Speaker 01: OK. [00:41:14] Speaker 01: What has happened since COVID is there's been really almost a separation between the administration of the vaccine, which you can go to Dodger Stadium to, or any pharmacy, and advice. [00:41:29] Speaker 01: So what has happened, and I think everyone knows this, you don't have to go to a doctor [00:41:33] Speaker 01: to get the vaccine. [00:41:35] Speaker 01: You go to a doctor, and Dr. Vermas talked about this in his declaration, in order to get information, because all of the contradictory information put out by the CDC. [00:41:45] Speaker 01: So what has happened is there's a whole cottage industry of information providing to patients and the public. [00:41:55] Speaker 01: And that's the whole basis of the COVID information [00:41:58] Speaker 02: Well, if it's information to the public, we know what happens under that. [00:42:01] Speaker 02: That's NIFLA. [00:42:02] Speaker 02: Correct. [00:42:03] Speaker 02: But I'm talking about what is it your particular clients want to do and they say they're entitled to do. [00:42:10] Speaker 01: They want to say that if you're in a certain patient subset, you shouldn't take the vaccine. [00:42:17] Speaker 01: Wait a minute. [00:42:18] Speaker 01: Is this in the context of treating a patient? [00:42:20] Speaker 01: It's in the context of a patient visit. [00:42:22] Speaker 01: And what NIFLA tells us, NIFLA was not a public speech case. [00:42:26] Speaker 01: NIFLA was about what you could post, what you had to post in a clinic. [00:42:33] Speaker 01: The law, I think, is very clear under Pickup and Conant [00:42:39] Speaker 01: If you give information about marijuana, about sexual-oriented therapy, if you give information about that, if you recommend it, if you make a recommendation, that is protected speech. [00:42:53] Speaker 01: And I hope that Judge Schoder will agree with it. [00:42:55] Speaker 01: I thought that was the holding of Conant. [00:42:57] Speaker 02: I think the holding of- If I make a recommendation, I mean, if I'm making a recommendation, excuse me, if the doctor is making a recommendation as he's treating the patient, [00:43:08] Speaker 02: How does that fall in your taxonomy? [00:43:11] Speaker 01: If you're treating the patient, if the incident, let me give you a practical example. [00:43:18] Speaker 01: Corey says, I want you to take ivermectin. [00:43:21] Speaker 01: Here's a script for it. [00:43:23] Speaker 01: That is conduct. [00:43:25] Speaker 01: His statements are incidental, too. [00:43:27] Speaker 01: If he says, I think it's a good idea for you to consider ivermectin. [00:43:31] Speaker 01: And that's it. [00:43:32] Speaker 01: That is speech that is protected. [00:43:34] Speaker 02: And the fundamental- Oh, so I've got- Yes. [00:43:36] Speaker 02: The doctor is in there with the patient. [00:43:38] Speaker 02: Yes. [00:43:39] Speaker 02: One example is, here's a prescription for horse-level ivermectin, rather than human sort. [00:43:44] Speaker 02: You say, okay, that one's, the doctor can't do that. [00:43:47] Speaker 02: That's conduct. [00:43:48] Speaker 02: Correct. [00:43:48] Speaker 02: Okay, same same patient same doctor doctor says I recommend that you take horse level Now Ivermectin is that okay or not? [00:44:00] Speaker 01: I have to say that is fully protected speech under con it and that is fully protected I recommend you take something that's poisonous to you. [00:44:09] Speaker 02: You say that can't be protected. [00:44:11] Speaker 02: That can't be disciplined. [00:44:12] Speaker 01: It's crazy Can I point out the fact that? [00:44:16] Speaker 01: Marijuana is a schedule one drug, which means there's no... I don't want to talk about marijuana. [00:44:21] Speaker 02: I want to talk about what is it that makes it something that the doctor's telling the patient to do or recommending the patient to do that is part of treatment or not. [00:44:30] Speaker 02: I mean, I understand if the doctor gives him a political recommendation, that's not part of treatment. [00:44:34] Speaker 02: But doctors say all kinds of things using all kinds of words. [00:44:38] Speaker 02: And they could actually write a prescription, take this, or I'll call your mother. [00:44:43] Speaker 02: Or they could say, I recommend. [00:44:45] Speaker 02: Or they could say, you know, it's really up to you, but I think it would be a better idea and you would be healthier in the long run if you did X. I mean, there's this gradation of the way doctors express themselves, and it seems to me that all the way through that spectrum, from actually writing the prescription and saying, I'm going to call your mother if you don't do it, to [00:45:04] Speaker 02: I think it would be a very good idea if you did X. That all strikes me as protected speech within the context of treatment. [00:45:13] Speaker 01: Why am I wrong? [00:45:14] Speaker 01: Protected speech. [00:45:15] Speaker 01: I agree it's protected speech within the context of... No, the doctor... Let me say it this way. [00:45:23] Speaker 02: It's part of the conduct that comes under this. [00:45:27] Speaker 01: And that goes back to NIFLA. [00:45:28] Speaker 02: It's regulated. [00:45:29] Speaker 01: Yeah. [00:45:29] Speaker 01: Well, and that goes back to NIFLA. [00:45:31] Speaker 01: If NIFLA says anything, it says what you can't do is you can't start with the moment the patient walks in the door to the moment the patient walks out of the door and call it unprotected speech. [00:45:46] Speaker 01: That is the holding of NIFLA. [00:45:48] Speaker 02: That's not the whole thing. [00:45:49] Speaker 02: The whole thing in NIFLA is they had something posted. [00:45:52] Speaker 01: Right. [00:45:53] Speaker 01: But here is the language from NIFLA. [00:45:54] Speaker 01: Professional speech. [00:45:56] Speaker 01: As you know, NIFLA basically- We're kind of going in circles. [00:45:59] Speaker 03: So you're five minutes over. [00:46:01] Speaker 03: So let me find out if the panel has any additional questions. [00:46:05] Speaker 03: I have no further questions. [00:46:06] Speaker 03: Thank you, Your Honor. [00:46:07] Speaker 03: All right. [00:46:07] Speaker 03: Thank you both for your argument in this matter. [00:46:10] Speaker 03: This case will stand submitted, and this court is in recess till tomorrow at 9 AM. [00:46:17] Speaker 03: Thank you. [00:46:40] Speaker 04: for this session.