Fifth Circuit Ruling Affirms Right to Speak Out on COVID-19, Abortion Policies
In a significant ruling, the U.S. Fifth Circuit Court of Appeals has allowed an association of doctors to proceed with a lawsuit against three medical certification boards, accusing them of suppressing physicians’ free speech on various contentious issues, including COVID-19 policies and abortion.
The Association of American Physicians and Surgeons Educational Foundation (AAPS) has filed a lawsuit against the American Board of Internal Medicine (ABIM), the American Board of Family Medicine, and the American Board of Obstetrics & Gynecology. AAPS claims that these boards threatened to revoke doctors’ certifications for criticizing government positions on vaccines, lockdowns, mask mandates, and abortion. The Appeals Court overturned a previous dismissal of the case, emphasizing that the First Amendment protects AAPS’s right to receive information from “willing speakers.” This decision sends the case back to the lower court for further proceedings.
Direct violation of free speech rights
In the case of AAPS v. ABIM, a panel of three judges unanimously agreed that the lower court’s dismissal was incorrect. They determined that AAPS experienced a direct violation of their free speech rights due to the medical boards’ threats to decertify doctors, effectively limiting their ability to practice medicine.
AAPS’s lawsuit argues that losing certification is nearly equivalent to losing a medical license, as hospitals are unlikely to employ doctors who are licensed but not certified. The association contends that the medical boards are using their power to intimidate doctors into silence without oversight from state medical boards.
The Fifth Circuit concurred, highlighting that the First Amendment safeguards both the right to speak and the right to listen. Silencing a willing speaker, they noted, inflicts a “constitutional injury against the hearer.”
The court’s opinion stated, “AAPS sufficiently alleges an injury-in-fact: that the Board Defendants, through their censorship campaign, deprived AAPS of a ‘willing speaker’ that would have voiced his/her opinions but for the threat of decertification, injuring AAPS’ right to hear.”
Alejandro Mayorkas named as a defendant
Additionally, AAPS’s original lawsuit named U.S. Homeland Security Secretary Alejandro Mayorkas as a defendant. The association accused the medical boards of colluding with the Biden administration to further the administration’s political agenda in exchange for endorsement of their certifications. They linked this alleged collusion to the now-defunct Disinformation Governance Board (DGB) under Mayorkas, claiming that the medical boards continued the DGB’s censorship efforts even after it was disbanded in August 2022. However, the Appeals Court dismissed these claims against Mayorkas, stating that the elimination of the DGB rendered the claims moot.
Judge James Ho, while concurring with most of the panel’s decision, partially dissented on the mootness of the case against the government. He argued that simply stopping unlawful conduct does not moot a case or prevent future occurrences of the same behavior.
Stopping unlawful conduct does not moot a case
During oral arguments, government counsel did not promise that the Department of Homeland Security would refrain from reinstating the DGB or similar functions, which Judge Ho found insufficient. He stated, “The panel majority there regarded that belated effort as sufficient assurance of mootness. I dissented, noting that our circuit precedent requires greater skepticism than that.”
Judge Ho expressed his approval of the opportunity for AAPS doctors to amend their case, emphasizing that scientific debates should be open and rigorous, free from self-censorship and cancel culture. He remarked, “In America, we don’t fear disagreement—we embrace it. We persuade—we don’t punish. We engage in conversation—not cancellation.”
“Intolerance of differing views contradicts our Founding principles,” Judge Ho concluded.
