The legislature of California has embraced a new bill designed to punish doctors who spread “misinformation” regarding COVID-19 vaccinations and treatments.
The Orwellian aspect of what is effectively a bill against “thought crime” is harrowing, but equally concerning is the dangerously haphazard manner in which the law is constructed.
A quick disclaimer: The author of this commentary doesn’t possess a law degree, is not an attorney and this article doesn’t constitute legal advice.
With that out of the way, lawmakers in the formerly Golden State on Monday approved AB 20098, a story The New York Times, in a typically objective, unbiased headline, summarized as, “California Approves Bill to Punish Doctors Who Spread False Information.”
And if Gov. Gavin Newsom actually signs the bill into law, then he’s a lot crazier than we thought, and that’s saying something.
A group of doctors, the Physicians for Informed Consent, opposes the legislation on the grounds that it would silence physicians, explaining in a statement that the law unconstitutionally targets them, “attempting to intimidate by investigation, censor and sanction physicians who publicly disagree with the government’s ever-evolving, erratic, and contradictory public health Covid-19 edicts.”
The group has filed a lawsuit seeking an injunction to prevent the Medical Board of California from acting on the law. They argue that the bill’s definition of “misinformation” is “hopelessly vague,” according to The Post Millennial.
Here’s why: The law hitting Newsom’s desk, if enacted, would suddenly revise the legal definition of “unprofessional conduct” in a medical capacity, a term that carries a lot of weight in the world of medical regulation.
According to the Medical Board of California, this is presently defined as “breach of confidence, record alteration, filing fraudulent insurance claims, misleading advertising, failure to sign death certificates in a timely manner, failure to provide medical records to a patient, patient abandonment, etc.”
To put it bluntly, there is a lot of law that rests on that one definition and altering it capriciously or carelessly is inherently dangerous. And as you’re about to see, that’s precisely what this law does.
Furthermore, it’s time to take the honorable senators and assembly members of the California legislature back to school on the finer points of definitions. You can’t change them to suit your needs. Keep that in mind as we take this apart.
Let’s go to AB 2098. In the operative portion of the bill (Section 2) the text reads:
“Section 2270 is added to the Business and Professions Code, to read: It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.”
20210AB2098_96 by The Western Journal on Scribd
There is a lot to unpack here. But first, a word on “vagueness” in a legal context, because when you take this, plus the introduction of new “definitions” to words that are already commonly known, the bill creates vagueness in law that is unconstitutional and dangerous.
The Vagueness Doctrine
According to Cornell Law School’s Legal Information Institute, the Vagueness Doctrine is “A constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable. Criminal laws that violate this requirement are said to be void for vagueness. The vagueness doctrine rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. By requiring fair notice of what is punishable and what is not, the vagueness doctrine also helps prevent arbitrary enforcement of the laws… Under vagueness doctrine, a statute is also void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.”
Let’s check out Section 3 of the bill for its “definitions”:
“‘Disinformation’ means misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.”
“‘Misinformation’ means false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”
There are big problems with both.
A website called PlainLanguage.gov, an unfunded website run by federal employees known as the Plain Language Action and Information Network with the goal of promoting “the use of plain language for all government communications” has been around since the mid-1990s. One of its tenets is, “Never define a word to mean something other than its commonly accepted meaning.”
It quotes Reed Dickerson, author of the 1965 work “Fundamentals of Legal Drafting” as writing: “It is important for the legal draftsman not to define a word in a sense significantly different from the way it is normally understood by the persons to whom it is primarily addressed. This is a fundamental principle of communication, and it is one of the shames of the legal profession that draftsmen so flagrantly violate it. Indeed, the principle is one of the most important in the whole field of legal drafting.”
In an opinion also cited in PlainLanguage.gov, Morris Cohen, in the 1950 book “Reason and Law,” wrote: “Whenever we define a word…in a manner that departs from current customary usage, we sooner or later unwittingly fall back on the common use and thus confuse the meanings of our terms.”
Merriam-Webster defines “misinformation” as simply, “incorrect or misleading information.” It defines “disinformation” as “false information deliberately and often covertly spread (as by the planting of rumors) in order to influence public opinion or obscure the truth.”
The New ‘Definition’
The definition the bill creates for “misinformation” relies on one of the single greatest fallacies of progressive politics in the 21st century: The so-called “contemporary scientific consensus.”
The late author and influential thinker Michael Crichton (author of “The Andromeda Strain,” “Jurassic Park,” “State of Fear” and other classics) handled this one for us very succinctly back in 2003 at the California Institute of Technology during a lecture titled “Aliens Cause Global Warming“:
“I want to pause here and talk about this notion of consensus, and the rise of what has been called consensus science. I regard consensus science as an extremely pernicious development that ought to be stopped cold in its tracks. Historically, the claim of consensus has been the first refuge of scoundrels; it is a way to avoid debate by claiming that the matter is already settled. Whenever you hear the consensus of scientists agrees on something or other, reach for your wallet, because you’re being had.
“Let’s be clear: The work of science has nothing whatever to do with consensus. Consensus is the business of politics. Science, on the contrary, requires only one investigator who happens to be right, which means that he or she has results that are verifiable by reference to the real world. 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 is no such thing as consensus science. If it’s consensus, it isn’t science. If it’s science, it isn’t consensus. Period.”
By introducing a skewed “definition” of the word “misinformation,” the California bill creates vagueness. By resting the definition on a patently nonsensical notion like “contemporary scientific consensus,” and by hinging its definition of “disinformation” on the skewed definition of “misinformation,” it would produce a law that’s dangerously vague.
And that vagueness isn’t just poor wordcraft. It’s deliberately done so that the punishment can be applied arbitrarily, at the whims of those in authority. It is unconstitutional, unethical and fundamentally un-American.
It’s an abrogation of power worthy of the monstrous Party of George Orwell’s “1984” — that masterful warning against totalitarianism that gets more relevant as its title year fades into the distance. It’s an example of “Orwellian” as clear as any we’re likely to see.
The fact that it’s aimed at health care providers — no doubt very much including family doctors who might not march in lockstep with the establishment favored by Sacramento lawmakers — makes it almost obscene.
The Biden administration has already, very publicly, failed in its attempt to create a federal board to fight “disinformation” so California lawmakers are attempting to create their own medical version.
But if Gov. Newsom does actually sign the bill, it really will prove he’s even crazier than we thought.
Anyone taking bets?
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