Couris v. Lawson et al.

Docket numbers: 22-cv-1922 (S.D. Cal.); 23-55069 (9th Cir.)

The Hamilton Lincoln Law Institute filed suit on behalf of Doctors Michael Couris and Michael Fitzgibbons challenging a California state law that restricts doctors’ First Amendment free speech rights by threatening disciplinary action against their license for discussing with patients anything about COVID-19 that the State views as “misinformation.” HLLI participated in a promising oral argument regarding the unconstitutional law, which California fixed by repealing at the end of the 2023 legislative session.

The law, AB 2098, signed by Governor Newsom on September 30, 2022, deems it unprofessional conduct for a California licensed physician or surgeon to share disinformation related to COVID-19. But the bill defines “misinformation” as “contradicted by contemporary scientific consensus.” The law covers all topics related to COVID-19, including risks, prevention, treatment, and the safety and effectiveness of vaccines. Yet as the past three years have shown, the scientific consensus on COVID has repeatedly shifted.

HLLI brings this complaint on behalf of doctors disturbed that California has overstepped the boundaries set by the First Amendment. The law infringes on the doctor-patient relationship; stifles scientific inquiry integral to the progress of medical science; and limits the free and candid exchange of information between doctors and their patients that the Supreme Court has recognized as essential and potentially life-saving.

On behalf of Drs. Couris and Fitzgibbons, HLLI moved for preliminary injunction to halt the enforcement of AB 2098. On January 10, 2023, HLLI filed their reply brief in support of their motion to preliminarily enjoin the law.

On January 23, 2023, the district court stayed proceedings instead of granting a preliminary injunction, and Couris appealed, filing his Ninth Circuit opening brief February 2. On March 23, Drs. Couris and Fitzgibbons filed their reply brief in support of their appeal.

In the last hours of California’s 2023 legislative session, the state quietly repealed AB 2098 without explanation, burying the provision in a late amendment to a must-pass medical board bill. The repeal does not go into effect until January 1, 2024, but the state argued that the panel should dismiss the appeal as moot. In a letter filed on October 31, HLLI and Liberty Justice attorneys wrote a response, quoting the Supreme Court, that “First Amendment infringement that occurs with each passing day is irreparable.” Drs. Couris and Fitzgibbons urge the Ninth Circuit to issue an opinion finding AB 2098 unconstitutional.

On February 29, 2024, the Ninth Circuit dismissed the appeal as moot in light of California’s repeal of AB 2098.

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