The U.S. Court of Appeals for the Fifth Circuit has issued a potentially precedent-setting ruling that sides squarely with the First Amendment in a case involving censorship of doctors' criticisms of COVID-19 measures.
The court has established a right to object to such censorship in response to a lawsuit filed by the Association of American Physicians & Surgeons Educational Foundation (AAPS), who sought the right to move forward with their censorship case after it was dismissed by the District Court for the Southern District of Texas. The appellate court believes that AAPS does have sufficient grounds to proceed.
The professional association is claiming that three other medical associations – the American Board of Obstetrics and Gynecology (ABOG), the American Board of Internal Medicine (ABIM), and the American Board of Family Medicine (ABFM) – along with Department of Homeland Security Secretary Alejandro Mayorkas coordinated to suppress their members' speech related to COVID-19 measures such as vaccines, lockdowns and mask mandates.
“Defendants wrongly misuse their authority in a politically partisan manner to chill speech critical of positions taken by Dr. Anthony Fauci, lockdowns, mask mandates, Covid vaccines and even abortion,” the suit noted, adding: “Defendants have acted in an apparently coordinated manner, using similar timing and terminology, to censor those who exercise their First Amendment rights on issues of public concern.”
Medical associations threatened doctors with loss of board certification
The three associations that were identified as plaintiffs in the case threatened physicians affiliated with the AAPS with the loss of their board certification due to their criticism. Losing these credentials would have resulted in their exclusion from most insurance networks as well as the right to practice in many of the nation's hospitals. Although they lack the authority of official state medical boards, they have become de facto credentials for practicing and are therefore serving to censor physicians without being beholden to the type of political accountability that official state boards would have.
The suit noted that although these groups claim to be non-partisan, “they are outspokenly allied with the Biden Administration on fundamental issues of abortion, surgical and pharmacological transgender interventions, lockdowns, mask and vaccine mandates.”
The executive director of AAPS, Dr. Jane Orient, said that the circuit court’s opinion will allow the group “to pursue its claim against censorship by the Biden administration.”
However, the appellate court did side with the District Court in concluding that the allegations related to the Department of Homeland Security and Mayorkas were “moot” because the Disinformation Governance Board of the agency at the heart of the complaint has since been dissolved; the AAPS maintained that it took part in an “unprecedented” censorship campaign against members of the group.
The judges on the panel ultimately agree that the AAPS and organizations like it do have a constitutional right to fight against censorship that impacts their freedom of expression at events these groups organize. The AAPS applauded the decision, with AAPS General Counsel Andrew Schlafly stating: “This landmark ruling will be cited nationwide for decades to come.”
In addition to agreeing with the panel majority on the case’s main issues, Fifth Circuit Judge James Ho wrote separately about his concerns about censorship in the U.S.
He wrote: “In America, we don’t fear disagreement—we embrace it. We persuade—we don’t punish. We engage in conversation—not cancellation. We know how to disagree with one another without destroying one another. Or at least that’s how it’s supposed to work.”
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