U.S. Supreme Court Rejects Emergency Appeal in Medical Free Speech Case

The U.S. Supreme Court denied an emergency appeal in a medical free speech lawsuit challenging the Washington Medical Commission’s right to discipline doctors for opposing official health narratives.

by Michael Nevradakis, Ph.D.

The U.S. Supreme Court earlier today denied an emergency appeal in a medical free speech lawsuit challenging the Washington Medical Commission’s right to discipline doctors for publicly opposing or criticizing official public health narratives.

The lawsuit, Stockton v. Ferguson, filed in March 2024, seeks “to protect the right of physicians to speak, and the right of the public to hear their message.” A federal court dismissed the case in May 2024 and an appeal is pending before the 9th Circuit U.S. Court of Appeals.

Basketball hall-of-famer John Stockton and Children’s Health Defense (CHD) are among the plaintiffs suing the commission, alleging it violated doctors’ First Amendment right to criticize the “mainstream Covid narrative” and denied the public the right to hear such criticism.

Other plaintiffs include Dr. Richard Eggleston, Dr. Thomas T. Siler, Dr. Daniel Moynihan and approximately 60 unnamed doctors facing disciplinary proceedings by the commission.

According to the lawsuit, the commission “investigated, prosecuted and/or sanctioned approximately 60 physicians” since September 2021 for their “soapbox speech,” referring to “written or verbal communications to the public.”

The commission subjected Siler and Eggleston to disciplinary proceedings after they published articles critical of the mainstream COVID-19 narrative.

Kim Mack Rosenberg, senior counsel for CHD, told The Defender she is “disappointed” the Supreme Court did not agree to hear the emergency appeal.

“Doctors’ professional speech is a critically important issue — whether it is public speech or speech in the doctor-patient context. It impacts doctors’ ability to treat their patients and it impedes all of us as we try to make informed healthcare decisions for ourselves and our families, including our children,” Rosenberg said.

Attorney Rick Jaffe, who represents the plaintiffs, said the attempt to get the Supreme Court to consider the appeal was a “longshot,” but “was worth the effort.”

“The basic idea that the state can sanction a physician for speaking out in public about a matter of public interest seems so un-American and at odds with every judge and justice who have written about this issue,” Jaffe said.

Case remains active in 9th Circuit

This was the second time the Supreme Court rejected an emergency appeal in the Stockton lawsuit. In November 2024, Associate Justice Elena Kagan, who is responsible for cases from the 9th Circuit, denied the first request.

The plaintiffs refiled the emergency appeal later that month, using a seldom-used procedure where an emergency application that has been denied can be resubmitted to another justice.

The dismissal of the emergency appeal does not affect the pending appeal before the 9th Circuit. Oral arguments in that case are scheduled for May.

In September 2024, the 9th Circuit denied a separate emergency injunction that would have stopped the Washington Medical Commission from continuing its disciplinary proceedings against the doctors.

Jaffe said the Supreme Court may have opted to allow the 9th Circuit to finish hearing the case before weighing in.

Attorney Todd Richardson, who represents the plaintiffs, told The Defender the Supreme Court’s denial was “disappointing but not wholly unexpected.” Richardson said the Supreme Court’s decision to review the appeal a second time is “encouraging.”

In a separate but related case, the Court of Appeals of the State of Washington last week granted a motion submitted by Eggleston for a stay of the commission’s proceedings against him while the court is considering the case.

Richardson, one of the attorneys representing Eggleston, said the difference between the two cases is that the case before federal courts pertains to questions that relate to the First Amendment of the U.S. Constitution, while the Washington Court of Appeals case relates to the state’s constitution.

“The issue in front of the Washington Courts is whether Article 1, Section 5 of the Washington Constitution — freedom of speech — should stop the commission’s actions,” Richardson said. “The Washington free speech clause has been interpreted to offer protections that are more broad than those offered by the First Amendment.”

Doctors ‘paid dearly’ for speaking up

Jaffe said the Supreme Court’s denial of the emergency appeal may also impact a similar appeal filed in another medical free speech case — one about California’s efforts to police so-called medical misinformation.

The emergency appeal in Kory v. Bonta, filed last week, pertains to a lawsuit filed in December 2022 by Dr. Le Trinh Hoang, Physicians for Informed Consent and CHD.

According to the plaintiffs’ emergency appeal, the state of California and the California Medical Board are “threatening California physicians with professional discipline for their viewpoint speech contrary to the mainstream Covid narrative.”

The plaintiffs say these efforts have continued despite the repeal of Assembly Bill (AB) 2098, widely known as the state’s “medical misinformation” law. That law, intended to punish doctors for spreading COVID-19 “misinformation,” came into effect in January 2023 but was repealed a year later.

While the original lawsuit targeted only AB 2098, the plaintiffs filed an amended complaint in October 2023 to challenge claims made by the Medical Board of California and the Osteopathic Medical Board of California. Two new plaintiffs — Drs. Pierre Kory and Brian Tyson — joined the lawsuit at that time.

According to The Epoch Times, a federal court rejected the plaintiffs’ request for an injunction against the California Medical Board in April 2024. This rejection was upheld by the 9th Circuit in November 2024.

“These cases show the myriad ways in which state licensing boards have attacked doctors who are trying to help their patients and others,” Rosenberg said. “The doctors in each of these cases spoke up because they believed it was the right thing to do and have paid dearly for doing so.”

Richardson said the Supreme Court’s denial of the emergency appeal in the Stockton case may be a blessing in disguise. “In some ways, additional time may be our friend. It seems that with each new day we are getting new revelations about the problems with the accepted COVID narrative.”

“By reaffirming the First Amendment’s protection of the public speech of physicians, the courts protect current and future disfavored speech, making the country better for it,” Jaffe said.