Bloomberg Law, March 2022
Doctors who have called the Covid vaccine a hoax or say it changes people’s DNA infuriate public health watchdogs, but the First Amendment could protect medical professionals from aggressive attempts by state licensing boards to crack down on false information. Medical professionals speaking outside the context of a one-on-one doctor-patient relationship have traditionally enjoyed the full free-speech protections of the First Amendment. The government must likely show it has good reason—a “compelling interest”—to restrict a doctor’s speech, and that its action is “narrowly tailored” to prevent the harms that could result from the speech.
The goal is to allow doctors to participate freely in public debate, and to prevent the government from imposing a single view of disputed matters, and from overriding the rights of citizens to hear all sides of a debate and come to their own conclusions. Disciplining doctors for public statements will therefore be a matter of “threading the needle,” said Rodney Smolla, dean and professor of law at the Delaware Law School of Widener University, in Wilmington, Delaware. State medical boards will likely be limited to taking action only against “over-the-top statements that no reasonable doctor could make,” he said.