|
Listen To This Story
 |
A legal battle over the rights of doctors to spread COVID-19 disinformation has been underway for months now in the federal court system. It is a battle deserving of media and public attention, and one that reached a new level Monday, when challenges to the California law establishing disciplinary consequences for such behavior came before the US Court of Appeals for the Ninth Circuit.
How did we get here? An infodemic was superimposed on the pandemic by a cadre of politically-aligned and agenda-driven experts (along with a host of non-experts). The confusion it caused led to a near-collapse of our country’s health care system during the devastating omicron wave and to hundreds of thousands of vaccine-preventable American deaths.
Of great concern is the fact that some of the leading purveyors of COVID-19 disinformation have been US state-licensed physicians. And yet, very few have lost their medical licenses or even faced milder forms of discipline and accountability.
Why California AB 2098?
In response, the California Legislature passed the first-in-the-nation COVID-19 disinformation physician accountability law, California AB 2098. The bill — signed into law by Gov. Gavin Newsom (D) last fall — was narrowly focused on the patient/provider interaction, was in line with the Federation of State Medical Boards’s summer 2021 warning that continued spread of disinformation by doctors could have consequences on medical licensing, and was supported by the California Medical Association.
Ideally AB 2098 would not have been necessary, but the state medical board was not acting to uphold their responsibility to protect the public and this piece of legislation served to motivate needed action. California emergency physician Dr. Nick Sawyer, founder of the independent physician group No License for Disinformation (NLFD), advocated for the law, which drew massive opposition — including a great deal of misinformation about the law. Sawyer recently penned an opinion piece in MedPage Today hitting back. I advocated for this bill-turned-law with Sawyer’s group, contributing my research into the dark-money roots of pandemic disinformation as a volunteer research consultant.
The failure of medical boards to act against doctors who spread deadly lies about COVID-19 and the vaccines, and who hawked bogus treatments, has put domestic and global public health at risk — as well as those who speak out against the disinformation. NLFD itself was such a target, choosing to close following a wave of online harassment in the wake of AB 2098’s passage.
The danger posed by the out of control anti-vax movement to its opponents was recently made clear by the Twitter pile-on of Dr. Peter Hotez — led by Joe Rogan, Robert F. Kennedy Jr., and Elon Musk — which resulted in an anti-vaccine fanatic stalking Hotez at his home this Father’s Day.
A Frightening Blowback
The argument against AB 2098 has largely hinged on accusations of infringement on doctors’ First Amendment rights, conflating free speech with professional speech while discounting the many harmed by the disinformation they’ve spread in violation of the physician’s Hippocratic Oath to “first do no harm.” This misuse of free speech as a defense has been covered thoroughly by Quinta Jurecic for the Knight First Amendment Institute at Columbia University.
Meanwhile, peddling disinformation has been remarkably profitable, both financially and politically, for this movement and it’s that profit they are first and foremost fighting to protect.
AB 2098’s legal opposition itself presents a case of political entanglement and opportunistic exploitation. Pandemic profiteer turned presidential candidate Robert F. Kennedy Jr. is involved in one of the four lawsuits brought against AB 2098, in addition to his Children’s Health Defense’s support of hydroxychloroquine-pushing Maine physician Dr. Meryl Nass’s lawsuit against her state medical board. As I have discussed previously, Kennedy pushed the bogus COVID-19 cure — as well as wild conspiracies about vaccines — alongside politically-aligned physicians as his anti-vax nonprofit’s revenue ballooned over the course of the pandemic en route to his current, controversial candidacy.
Other lawsuits have come courtesy of the Koch dark money-tied New Civil Liberties Alliance. After Koch money had funded some of the most pernicious sources of disinformation — like the October 2020, “die for the Dow” Great Barrington Declaration (GBD) and its “spiritual child,” the anti-public health outlet the Brownstone Institute, helmed by neo-Confederate Jeffrey Tucker — they moved on to the next phase: litigation aimed at avoiding accountability for their allies and, by extension, themselves.
In fact, the Brownstone Institute’s retaliatory hit piece on AB 2098, titled “The Dystopian Vision of the Health-Information Police,” which named Sawyer as well as myself, contributed to NLFD’s shuttering.
The piece was written by attorney Laura Powell, who testified against AB 2098 in the California Assembly alongside Urgency of Normal’s Dr. Tracy Beth Høeg. Urgency of Normal can be understood as a classroom-focussed rebrand of the COVID-19-minimizing GBD. Its members have contributed to the Brownstone Institute and it stubbornly ignores how schools have been a major source of community spread.
Høeg, who works remotely for the embattled Florida Health Department, is dangerously sloppy in her scientific analysis and was covering for herself and her colleagues. For example, she pushed her misinterpretation of a small Thai preprint study claiming “stunning” cardiac risk to children from vaccination, in line with their narrative, through her political network. More recently, when arguing that COVID-19 vaccination was unethical for college students, she contributed to a paper claiming “serious adverse events” from vaccines that did not actually occur in the study they discussed.
Powell and Høeg were apparently unbothered by the threats of “Nuremberg 2.0” hurled at proponents of AB 2098 by an unnamed supporter of theirs at the Assembly hearing — though the hearing’s chair, having had to deal with a string of similarly rule-ignoring commenters, had obviously had enough.
Threats of hangings — which is what these Nuremberg calls allude to — are a terrifying tactic used to silence their opponents from speaking out. In a twisted way, it makes sense: The most fervent adherents to anti-vax conspiracies truly believe the mainstream medical community is killing people and harming children with the vaccines and therefore deserve to die for apparent crimes against humanity. That this invocation of a death tribunal took place in a government building after the January 6 insurrection echoes like a footstep down the road to dystopia. At the very least, it is not normal political engagement.
It is, however, commonplace on social media and at the extremist rallies that have continued post-J6, featuring speeches from radicalized licensed physicians among other cranks. And, as I told MedPage Today last year, a group called “Nuremberg 2.0 LTD” was listed in formal opposition to AB 2098 at the Assembly level.
A Stacked SCOTUS Beckons
With the multiple suits brought in different districts of federal court to challenge AB 2098 resulting in conflicting lower court rulings, two cases were consolidated and heard by the Ninth Circuit on Monday. Prior to the hearing, opponents of the law indicated an intention, if defeated, to take the case to the Supreme Court, where they know they have friends, beginning with Justice Clarence Thomas.
California-licensed physician Dr. Simone Gold’s America’s Frontline Doctors, launched with a press conference on the Supreme Court’s steps, was founded post-GBD to hawk hydroxychloroquine and continue minimizing the perceived threat of the viral pandemic. It was created in partnership with the Trump 2020 reelection campaign, the Tea Party Patriots, and the Council for National Policy — while CNP member Thomas’s wife, Ginni, served as a chair of CNP Action.
In addition to Thomas, the CNP can count on Justice Samuel Alito, who claimed the pandemic brought “unimaginable restrictions” on freedoms, and Justice Neil Gorsuch, who claimed COVID-19 emergency orders were among the “greatest intrusions on civil liberties,” and whose refusal to mask led Justice Sonia Sotomayor to work remotely. In both men’s statements we hear echoes of the GBD authors’ rhetoric. Justice Amy Coney Barrett’s infamous maskless Trump White House Rose Garden nomination celebration, which turned out to be a super-spreader event, seems to speak for itself.
Disinformation, Violent Rhetoric, and Cries of Censorship
As longtime anti-anti-vax crusader Dr. David Gorski noted, GBD authors Dr. Jay Bhattacharya and Dr. Martin Kulldorff have also used violent rhetoric and imagery — including a guillotine — online when discussing revenge fantasies against “lockdowners” and in response to their being rightfully called out as dangerous and “fringe” by the mainstream scientific community. These men are not only dangerous in what they say but in whom they choose to partner with in order to push their message, evidenced by Kulldorff’s collaboration with former Cambridge Analytica lead psychologist Patrick Fagan, as reported by Nafeez Ahmed in the Byline Times.
While the GBD crowd found a listening ear with Trump’s innermost circle, behind the back of White House coronavirus response coordinator Dr. Deborah Birx, their “herd immunity” strategy was denounced by the scientific community. Former Director of the National Institute of Allergy and Infectious Diseases Dr. Anthony Fauci — who served with great discomfort as Trump’s chief medical adviser and warned that adherence to the GBD would “lead to hospitalizations and deaths” — became a target of MAGA’s ire for his advocacy of science-based public health practices, leading him and his children to require security.
Following the Republican takeover of the House after the 2022 midterm elections, the GOP-led House Select Subcommittee on the Coronavirus Pandemic launched with testimony from anti-vax stars Bhattacharya and Kulldorff — despite both being called out in a report by the previous Democrat-led subcommittee. After spending the pandemic doing television appearances and publishing op-eds in the mainstream media they — and especially Bhattacharya — bizarrely persist in claiming to be victims of censorship.
Free Speech — If We Agree With You!
The Right’s obsession with the free speech of physicians here should be juxtaposed with what their party has done to Dr. Caitlin Bernard over a different politicized public health issue: abortion. The Indiana OB/GYN terminated the pregnancy of a 10-year-old victim of rape from Ohio shortly after trigger laws following the Dobbs decision prevented the child from getting care in her home state. Subsequently, Bernard became a target of Republican politics and was subject to a massive harassment campaign spearheaded by Indiana Attorney General Todd Rokita (R).
Following Bernard’s speaking out to the Indianapolis Star about her patient’s tragic experience, made all the more traumatizing by lack of protection under Roe, Rokita went to Fox News, disparaging the physician for her advocacy. He attempted to abuse his position of power to revoke her medical license and, when that failed, had the state licensing board fine her $3,000, claiming she violated her young patient’s privacy when she did not, in fact, violate the guidelines for protection of patient privacy imposed by federal HIPAA law. In reality, as Moira Donegan wrote for The Guardian, this was “a chilling violation of the spirit of free speech.”
Bernard — whose daughter faced a kidnapping threat, per the FBI — was further assailed by the anti-abortion group “Right to Life Michiana,” which featured the doctor on their website as a “Local Abortion Threat.” It is hard to take the far-right’s insistence on care for life and children seriously when they allow things like this to occur to their opposition in their zealous pursuit of their cause.
15/ Leo, an architect of the Supreme Court’s movement to the right, also popped up in our reporting of Clarence Thomas’ undisclosed trips with billionaire Harlan Crow. Here’s a painting of the 3 men that hangs at Crow’s private resort: pic.twitter.com/AOjs0UWZhP
— ProPublica (@propublica) June 21, 2023
It should not be lost on anyone that the Council for National Policy — the dark money hub of the radical right with Charles Koch as an ally, and the string-puller behind America’s Frontline Doctors — is also responsible for the right-wing takeover of the Supreme Court that led to the fall of Roe, among other recent abominations. The architect of that coup is CNP member and Co-Chairman of the Federalist Society Leonard Leo.
The far-right legal activist can be seen in discussion with Clarence Thomas and his billionaire backer Harlan Crow in the painting featured in the bombshell ProPublica report about the latter’s bankrolling of the former’s lifestyle. Leo has been accused of misusing $73 million from nonprofits and secretly funneling money to Thomas’s wife via former CNP member and Trump adviser Kellyanne Conway.
The Shadow Network In Control
Ginni Thomas’s CNP welcomed insurrectionist Dr. Simone Gold with membership into their immensely potent shadow network, despite some truly vile behavior from the radicalized physician-attorney. While awaiting her J6 sentencing, Gold’s AFLDS sent a private investigator to, and flew a drone over, the family home of then-President of the California Medical Board Kristina Lawson.
Later that day, AFLDS affiliates ambushed Lawson in her office parking lot with a camera crew. The footage from the ambush was used for a disturbing AFLDS film titled Lawson’s Hunt, which depicted her as a Nazi and Gold as some sort of hero spy. The case heard by the Ninth Circuit this week is Mark McDonald et al v. Kristina D. Lawson et al.
As someone who has spoken out against this highly politicized disinformation, and has been a target of harassment and unsuccessful attempts to silence my speech that continue to the present day, I find it beyond offensive that this diabolical movement, propped up by a steady stream of dark money, clings to “free speech” as its legal and political life raft.
Their passionate embrace of medical and professional free speech begins and ends with doctors and professionals with whom they are in political accord. They elevate people like Gold and vilify people like Bernard because it’s about whose speech is in line with their politics. It has been nauseating to watch the bastardization of the First Amendment by a movement that has led to senseless death and destruction, for personal and political profit, under the guise of patriotism.
If I’m a victim here, it’s in a limited sense and one I’m at least free to write and speak about. The worst-impacted victims of these disinformation doctors can no longer speak. This sordid movement, the Ninth Circuit, and, if need be, the Supreme Court would do well to remember that tragic reality.
Editor’s Note: In a previous version of this story, we wrote that Charles Koch was a member of the Council for National Policy (CNP). He is involved with their work and funding but is not formally a member. We regret the error.
Allison Neitzel, MD, is physician-researcher and founder of the independent research group MisinformationKills, which has investigated the dark money and politics behind public health disinformation with a focus on the pandemic. Her book on the topic, Misinformation Kills: How Politics and Dark Money Hijacked Covid, is due for publication later this year.
