The Bill of Rights was originally understood as curbing the power only of the federal government.
This began to change with the Fourteenth Amendment, which prohibits states from depriving persons “of life, liberty, or property, without due process of law.” Thanks to the “incorporation doctrine” interpretation of this amendment, provisions like the First Amendment now apply as much to state and local governments as to the federal government.
Except that many officials, disdaining these protections, simply ignore them.
So although obliged to make no law “abridging the freedom of speech,” California’s government is abridging the freedom of speech of doctors. A new law authorizes state medical boards to penalize doctors who utter speech contradicting “contemporary scientific consensus” about COVID-19.
Doctors are suing the Newsom administration to block the law from taking effect. According to their complaint, this anti-“misinformation” law would impede their ability to communicate with patients.
The doctors argue that the First Amendment protection of freedom of speech applies to expression of minority views as well as majority views; indeed, that minority views “particularly need protection from government censorship.”
Also that nobody can ever know “the ‘consensus’ of doctors and scientists on various matters related to prevention and treatment of COVID-19.”
Of course, free speech rights should protect even persons who say the moon is made of green cheese, let alone of those who disagree with official pronouncements about a vexing new virus and what to do about it.
This is Common Sense. I’m Paul Jacob.
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6 replies on “Minority Medical Opinion Squelched”
Opponents of liberty of expression have argued for a variety of exceptions; often the US Supreme Court has chosen to play-along.
Thus, the state has gone a long way in restricting commercial speech and that speech associated with the practices of licensed professions. One constituent state is even trying to fine a fellow for reporting, from public documents, where property boundaries are.
Had the perverters of law attempted to reach their end-goal in one step, the courts would have stopped them. But the courts looked away from the logic with each incremental move, and now even the most liberal judges are frightened to confront the revolution implied in saying that the next step cannot be taken and why it cannot be taken.
And so if your physician tells you that you must take a particular medication derived from lunar verdant cheese and will guarantee you two centuries of illness free life, that’s okay with you?
I prefer that my physician tell me the truth rather than selling me snake oil.
The instrumental problem with wanting your physician to tell the truth to you when dissent is suppressed is that sometimes the truth will be found in dissent and falsehood in consensus (or in alleged consensus).
A medical illustration of that point is found in the case of dietary fat and dietary sugar. For an extended period, a consensus was cultivated in which sugar was regarded as fairly benign, and the health effects of its overconsumption were misattributed to other things, especially to fat. If you’ll look at the statistics, you’ll even see the beginnings of the explosion of obesity following almost immediately upon government guidelines that led to the substitution of sugars and of other simple carbohydrates for fats.
Doctors who challenged the guidelines for exactly the right reasons found themselves widely attacked, but at least they could not literally be treated as criminals.
Junk science has driven much state policy in the past, is driving much state policy now, and will drive much state policy in the future so long as junk science can be combined with the power of the state to acquire resources. Junk science will become more pervasive if the state can go beyond denying real scientists of favor, and actually shut them up.
Malpractice will remain judiciable. No one is asking for less than the truth. But we recognize the importance of the freedom for doctors to tell us what they believe is the truth. A system where they are silenced will allow horrible death and destruction — think the Wuhan doctor warning early about COVIOD-19 and being arrested. Millions dead because of that.
Here are a couple of quotes:
“In science, consensus is irrelevant. What is relevant is reproducible results. The greatest scientists in history are great precisely because they broke with the consensus. There’s no such thing as consensus science. If it’s consensus, it isn’t science. If it’s science. it isn’t consensus.
Michael Crichton
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“Unless we put Medical Freedom into the Constitution, the time will come when medicine will organize into an undercover dictatorship… to restrict the art of healing to one class of men, and deny equal privilage to others, will be to constitute the Bastille of Medical Science. All such laws are un-American and desptoic, and have no place in a Republic… The Constitution of this Rebublic should make special privilage for Medical Freedom as well as Religious Freedom.”
Dr. Benjamin Rush, Founding father argued before the American Continental Congress
I wrote carefully about the relationship of science to consensus in a ‘blog entry.