Supreme Court justice makes unusual move to take on free speech case
In a highly unusual move, Supreme Court Justice Clarence Thomas earlier this month overrode fellow Justice Elena Kagan’s decision to reject a First Amendment case.
The lawsuit was filed in early March against Washington Attorney General Robert Ferguson and the Washington Medical Commission (WMC), which has been targeting physicians for challenging government pseudoscience on COVID-19. The WMC announced in September 2021 that it would penalize doctors who share “COVID-19 misinformation,” which it fretted might “erode the public trust in the medical profession.” It fulfilled its promise by punishing roughly 60 physicians with investigations, prosecutions, and/or sanctions. That policy remains in effect even though the pandemic ended in April 2023.
“These cases are at least in part based on what in First Amendment parlance is called pure or soapbox speech, meaning written or verbal communications to the public (as opposed to a physician’s communications to an individual patient as part of a doctor/patient interaction),” says the complaint, adding: “Going back seventy-years [sic], every judge and Supreme Court justice who has written on professional soapbox speech has stated that it is fully protected by the First Amendment and/or said that it cannot be the subject of government regulation or restriction.”
Plaintiffs in the lawsuit include incoming HHS Secretary Robert F Kennedy, Jr; basketball star-turned-freedom activist John Stockton; and over 50 physicians, some of whom were persecuted by the WMC and others who say they are self-censoring out of fear of government reprisal. They argue that not only is the WMC violating the First Amendment rights of doctors, but it is also violating the public’s right to hear their message.
Obtaining a judgment against the WMC has been an uphill battle. A district court dismissed the case in May and it now sits before the Ninth Circuit Court of Appeals, which has already denied a preliminary injunction, according to Law&Crime.
The plaintiffs therefore turned to the Supreme Court, which uses a voting process to choose which cases to adjudicate. If four out of nine justices vote to accept a case, the court will hear oral arguments. In October, the plaintiffs applied to Justice Kagan, whose circuit assignment is the Ninth Circuit, to bring Stockton v. Ferguson to a vote. Kagan denied the request on November 20th without explanation.
In a bold maneuver, the plaintiffs submitted a new application, this time to Justice Thomas, even though his circuit assignment is not the Ninth Circuit. They banked on Thomas’ reputation as a free speech absolutist who is fastidious about the First Amendment. The strategy worked, and Thomas has agreed to bring the case to a vote on January 10th, overriding Justice Kagan.
'Sometimes bold action is necessary'
“We are hopeful that the Supreme Court will agree to hear the case, and once it hears the case, it will decide that physicians like all other people have the right to speak out in public on matters of public interest,” lead attorney Richard Jaffe told The Gold Report. “That is a bedrock First Amendment principle articulated by justices and judges for 90 years.”
Jaffe acknowledged that his move was unusual and said to expect more out-of-the-box strategies in this case.
“Sometimes bold action is necessary,” he said.
If the case goes to oral arguments, Jaffe is confident that at least three justices will rule on the side of free speech, and he expects they will be joined by others.
