94 F.4th 864
9th Cir.2024Background
- In response to COVID-19, California enacted AB 2098, making it "unprofessional conduct" for physicians to provide “misinformation” or “disinformation” regarding COVID-19 to patients.
- Several doctors (McDonald, Barke, Couris, Fitzgibbons) challenged AB 2098 as unconstitutionally vague and a violation of their First Amendment rights.
- Plaintiffs expressed concern that their contrary advice to patients on COVID-19 measures and vaccines could result in professional discipline, but none had faced actual discipline under AB 2098.
- The district court refused to enjoin AB 2098 in the McDonald case and stayed the Couris case pending appeal; the cases were consolidated.
- While the appeal was pending, California repealed AB 2098 via SB 815 and attested that it would not enforce any violations from the period the law was in effect.
- The Ninth Circuit deemed the appeals moot, vacated the lower court judgments, and remanded with instructions to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment | Restricts doctors’ speech to patients about COVID-19 | Law protects public health, regulates only professional conduct | Moot: Law repealed, so no live controversy remains |
| Vagueness | AB 2098 is unconstitutionally vague concerning what is "misinformation" | Definitions are clear based on scientific consensus | Moot: No ongoing enforcement following repeal |
| Threat of Discipline | Plaintiffs face discipline for prior statements | State will not enforce or pursue violations under repealed law | No credible threat: Executive Director’s sworn statement accepted |
| Likelihood of Reenactment | Law likely or could be reintroduced | No reason to suspect legislature will reenact similar law | Unlikely: No record evidence of likely reenactment, so case moot |
Key Cases Cited
- United States v. Munsingwear, Inc., 340 U.S. 36 (Supreme Court directs vacatur and remand with instructions to dismiss when interim mootness occurs)
- MetroPCS Cal., LLC v. Picker, 970 F.3d 1106 (discusses mootness where plaintiffs cannot obtain relief)
- Bd. of Trs. of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195 (presumption of mootness when a law is repealed)
- Friends of the Earth, Inc. v. Laidlaw Env't Servs., 528 U.S. 167 (standard for voluntary cessation mootness exception)
- Decker v. Nw. Envt’l Def. Ctr., 568 U.S. 597 (enforcement risk must be more than remote to evade mootness)