Supreme Court asked to decide: Is medical free speech a right or a crime?

• Children’s Health Defense (CHD), Physicians for Informed Consent (PIC) and a group of doctors have filed a petition with the U.S. Supreme Court to review their lawsuit against the Medical Board of California (Kory v. Bonta). The case challenges the constitutionality of disciplining physicians for sharing COVID-19 information that deviates from official narratives.
• The lawsuit stems from California’s Assembly Bill (AB) 2098, which allowed the state medical board to penalize doctors for spreading “false” COVID-19 information. Although the law was blocked and later repealed, the plaintiffs argue that the Medical Board continues to target physicians for alleged “misinformation.”
• The case hinges on whether the First Amendment protects physicians’ communications with patients, especially when these communications challenge mainstream medical narratives. Conflicting rulings from different federal circuits have created uncertainty, leaving doctors in a precarious position.
• Kory v. Bonta is part of a growing trend of litigation challenging medical boards’ authority to regulate speech. Another notable case, Stockton v. Ferguson, also seeks to protect physicians’ rights to speak publicly about health issues. These cases highlight the tension between professional oversight and constitutional rights.
• The case reflects a historical pattern of suppressing dissenting voices in medicine, which has often delayed scientific progress and harmed public health. The plaintiffs argue that informed consent is a form of free speech and that silencing physicians can have serious consequences for patient care and medical ethics.

In a landmark case that could redefine the boundaries of free speech in medicine, Children’s Health Defense (CHD), Physicians for Informed Consent (PIC) and a group of doctors have petitioned the U.S. Supreme Court to review their lawsuit against the Medical Board of California. The case, Kory v. Bonta, centers on whether physicians have the constitutional right to share information with patients that diverges from official COVID-19 narratives without fear of disciplinary action. Filed on March 1, 2025, the petition follows the dismissal of their case by the 9th U.S. Circuit Court of Appeals in November 2024.

The lawsuit is the latest chapter in a years-long battle over medical free speech, sparked by California’s Assembly Bill (AB) 2098. Passed in 2022, the law allowed the state’s medical board to discipline doctors for spreading what it deemed “false” information about COVID-19. Although a federal judge blocked AB 2098 in January 2023 and the law was later repealed, the plaintiffs argue that the Medical Board of California continues to target physicians for alleged “misinformation.”

“This case touches on the foundational rights of professionals to share knowledge and opinions essential for patient autonomy and informed consent,” said Rick Jaffe, the plaintiffs’ attorney, in a PIC press release. At stake is not only the future of medical free speech but also the ability of patients to make fully informed decisions about their health.

A clash of precedents: Free speech or professional conduct?

The case hinges on a critical question: Does the First Amendment protect physicians’ communications with patients, particularly when those communications challenge mainstream medical narratives? The answer is far from clear, as federal courts have issued conflicting rulings on the issue.

In 2022, the 9th Circuit upheld the ability of professional boards to restrict members’ speech in Tingley v. Ferguson, likening such restrictions to enforcing “other restrictions on unprofessional conduct.” However, in 2020, the 11th Circuit ruled in Otto v. City of Boca Raton that content-based and viewpoint-based restrictions on speech by therapists and counselors violate the First Amendment.

This legal tug-of-war has left physicians in a precarious position. Dr. Brian Tyson, one of the plaintiffs and a board-certified family practitioner, knows this firsthand. “I had to defend my position against the [board] and almost lost my license,” he said. “That would have been devastating to the community I serve and to all those I employ.”

The plaintiffs hope the Supreme Court will resolve this conflict by affirming that “informed consent is free speech.” As Tyson explained, “We want doctors and all providers to be able to discuss risks and benefits with our patients, be able to speak out against things that are wrong, and be heard when breakthroughs are made.”

A broader battle for medical free speech

Kory v. Bonta is not an isolated case. It is part of a growing wave of litigation challenging the authority of medical boards to regulate speech. Another high-profile case, Stockton v. Ferguson, filed in March 2024, seeks to protect physicians’ right to speak publicly about COVID-19 and other health issues. Basketball legend John Stockton is among the plaintiffs, advocating for the public’s right to access “soapbox speech.”

Both cases highlight the tension between professional oversight and constitutional rights. As Jaffe noted, “The two cases represent the entire spectrum of cases involving what physicians say and would allow the court to give a definitive and comprehensive answer to whether and how much the First Amendment protects professionals when they communicate to patients and the public.”

The stakes are high. If the Supreme Court agrees to hear Kory v. Bonta, it could set a precedent that shapes the future of medical free speech in the United States. According to PIC, four justices must agree to take the case, and if they do, oral arguments could begin as early as October 2025.

Why this case matters: A historical perspective

The battle over medical free speech is not new. Throughout history, physicians and scientists who challenged prevailing medical orthodoxy have faced professional and legal repercussions. From Galileo’s persecution for advocating heliocentrism to the vilification of Dr. Ignaz Semmelweis for promoting handwashing in hospitals, the suppression of dissenting voices has often delayed scientific progress and harmed public health.

In the modern era, the COVID-19 pandemic brought this issue to the forefront. As scientific understanding of the virus evolved, so too did public health recommendations. Yet, doctors who questioned early narratives or advocated for alternative treatments were often labeled as spreading “misinformation.” This crackdown on dissenting voices has raised concerns about the erosion of informed consent—a cornerstone of medical ethics.

Dr. Sanjay Verma, a cardiologist and key figure in the case, highlighted the consequences of silencing physicians. “The fact that most of my patients with cardiac complications after COVID-19 vaccination had not previously been educated on these risks underscores the material and sometimes fatal consequence of silencing physicians who engage in an ethically transparent and comprehensive risk-benefit discussion,” he said.

The road ahead: A fight for the future of medicine

As Kory v. Bonta moves forward, it represents more than just a legal dispute—it is a fight for the soul of medicine. At its core, the case is about whether patients have the right to hear all sides of a medical debate and whether doctors have the freedom to provide that information without fear of retribution.

“Free speech is necessary for all other constitutional rights,” said Greg Glaser, PIC’s general counsel. “This case is a good opportunity for the nation’s highest court to protect doctors from medical boards acting outside the bounds of their authority.”

For the plaintiffs and their supporters, the hope is that the Supreme Court will affirm the principle that informed consent is inseparable from free speech. As Jaffe put it, “We hope to establish the constitutional right of healthcare providers to speak out against the prevailing medical and scientific consensus about COVID-19, as well as whatever public health challenges face the country in the future.”

The outcome of this case could shape the future of medical practice, scientific inquiry and patient autonomy for generations to come. In a world where scientific understanding is constantly evolving, the right to question, debate and dissent is not just a privilege — it is a necessity.

Sources include:

ChildrensHealthDefense.org

AccessNewsWire.com