California Globe: California wants to silence dissent on COVID-19

In 1593, the Roman Inquisition convicted the Dominican friar Giordano Bruno for heresy. His crime: teaching that the earth revolved around the sun. The inquisitors burned him alive. We should’ve learned from that dark era. Yet over 400 years after Bruno’s death, California is about to pass a law that will punish physicians for spreading “misinformation” about COVID-19. California’s self-appointed role as inquisitor in the search for scientific truth does not bode well for science or freedom of speech.

Assembly Bill 2098 by Assemblyman Evan Low (D-Palo Alto), which amends the law governing “unprofessional conduct” for medical professionals, says doctors cannot “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.” The bill defines “misinformation” as “false information that is contradicted by contemporary scientific consensus.”

AB 2098 will stifle scientific progress, harm public health, and violate doctors’ First Amendment rights. California’s Medical Board does not enjoy a monopoly on truth. Punishing ideas that defy consensus is an excuse to punish heretics and stifle dissent. And history’s heretics, like Giordano Bruno, sometimes become tomorrow’s heroes.

London physician John Snow, for example, solved the mystery of cholera in 1854 by bucking the prevailing theory that cholera spread through foul odors. He saved many lives by removing the handle on a public water pump during a neighborhood outbreak. Yet the medical establishment rejected Snow’s theory that cholera spread via contaminated water.  It took almost thirty years before he was proven correct. If Snow had faced professional discipline for challenging a theory that had failed to curb devastating cholera epidemics, that disease would’ve claimed many more lives.

Over a century later, the scientific consensus remains prone to error. The COVID-19 pandemic has repeatedly shown how quickly it changes. Early on, consensus told us droplet spread was the dominant means of transmission, but we now know it’s mostly airborne.

Consensus told us cloth masks were ineffective, then told us that they helped, and now has returned to its initial assessment. It took over a hundred years for consensus to embrace Giordano Bruno’s insight and thirty years for John Snow to be proven correct. California now expects us to believe that an infallible consensus has arisen in two years?

And unfortunately, if AB 2098 passes, the John Snows and Giordano Brunos among California’s medical profession won’t get a chance to be proven correct. A law that squashes dissent from consensus will push doctors to censor themselves to avoid losing their jobs. AB 2098 will manufacture an artificial unanimity, a gravity well that draws science towards a false consensus and ultimately a black hole of ignorance.

The bill’s supporters claim it will protect the public from falsehoods that might dissuade people from vaccinating or persuade them to try crackpot treatments. But even if that risk is real, the curative for falsehood is truth, not censorship. More speech, not less, is the way to combat error.

The reality that some people will make mistakes is no excuse for censoring speech. As the Supreme Court has put it: “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” And we cannot distinguish error from truth unless vying theories can compete in an open marketplace of ideas. As John Stuart Mill said, “collision with error” brings about “the clearer perception and livelier impression of truth.”

The law will also lend itself to political abuse. Scientific consensus is not as simple as counting heads. “Consensus” will be whatever the medical board deems. And enforcement is almost sure to target specific viewpoints—for example, by targeting doctors who _under_estimate COVID risks but not doctors who _over_estimate risks, even though overreaction has serious costs, too.

California already has a mechanism to discipline physicians who harm patients by deviating from prevailing standards of care.

Disciplining physicians for spreading “misinformation” regardless of whether any patient is injured will do little to protect the public. But it will go far toward suppressing the John Snows of the profession. Scientific progress on COVID will wither, and public health along with it.

This op-ed was originally published in the California Globe on July 18, 2022.