When basketball legend John Stockton tried to resurrect a First Amendment case that had been dropped over COVID-19 regulations, he asked Supreme Court Justice Clarence Thomas to assist with a screen.
The Gonzaga star and several other plaintiffs sued the state’s attorney general, Robert Ferguson, and the executive director of the Washington Medical Commission in March in Stockton, Washington, over sanctions against doctors who challenge the dominant Covid narrative.
The U.S. District Court for the Eastern District of Washington dropped the case in May after rejecting the application for a preliminary injunction. Briefing is still going on for an appeal that was filed with the U.S. Court of Appeals for the Ninth Circuit. A plea for an injunction pending appeal was turned down by the appellate court in September.
Justice Elena Kagan refused Stockton and his co-plaintiffs’ request for an injunction pending appeal in October without responding on Wednesday. The plaintiffs now wish to transfer the case to a justice they think is more knowledgeable about First Amendment matters.
Richard Jaffe, Stockton’s lawyer, requested in a one-page letter dated Friday that high court clerk Scott Harris resubmit the injunction request alongside Thomas, who has generally upheld the free speech concept during his tenure, with at least one significant exception.
The plaintiffs acknowledge that selecting a different justice to consider the application could not be the solution that the case requires.
Although it is unlikely, Jaffe told Law&Crime via email that “we believe the issue is important enough and has national consequences so we should leave no stone unturned.” First Amendment rights have traditionally been upheld by Justice Thomas. He might choose to have the 9th Circuit consider the case first and deny the resubmitted application. If this is the case, we return to the 9th Circuit about the appeal district court’s rejection of our preliminary injunction and case dismissal.
The original petition, stylized as Stockton v. Ferguson, describes how the NBA all-time leader in assists and steals conducts a podcast in which he expresses his opinions on a wide range of topics, such as COVID, health policy, the human right to choose their own health and medical decisions, and sports. The renowned point guard is also listed in the document as a strong opponent of the popular Covid tale.
The lawsuit seeks an injunction to protect the rights of doctors who claim that Washington’s attempts to punish those who disseminate false information about COVID-19 have harmed them. In particular, the petition aims to prevent the state from looking into or punishing medical professionals who, according to its own rules, have public opinions about COVID-19 that differ from accepted wisdom.
One of the physician plaintiffs, retired ophthalmologist Richard Eggleston, was investigated for spreading COVID-19 misinformation over a series of conservative newspaper columns he wrote. In August 2022, he was accused of professional misconduct.
Eggleston opposes Covid mandates, believes, and opines that the risk benefit profile is unfavorable for some subsets of the population, the lawsuit reads. He argued against lockdowns and in favor of off-label medications like Ivermectin. He frequently references official figures in his columns and offers his interpretation or thoughts on their significance. His opinions are at odds with what is published in the mainstream media.
Another plaintiff, retired physician Thomas T. Siler M.D., also questioned the Covid narrative core principle in an online discussion forum, according to the lawsuit. In 2023, he was charged with professional misconduct after the commission conducted a similar investigation.
Around 60 medical professionals have been investigated, prosecuted, and/or sanctioned under the Evergreen State s prohibitions since they were put into effect in 2021, according to the 20-page lawsuit.
The renewed application, citing precedent on professional speech, argues that physicians public speech does not forfeit its robust First Amendment protection because of a government license.
This case presents an opportunity for the Court to reaffirm the robust protection afforded to public speech and provide a much-needed reminder of the power of the First Amendment, the filing goes on. Given the national campaign to suppress dissenting medical opinions, uniform guidance from this Court is essential to prevent inconsistent state-level practices that undermine free speech.
The filing also frames campaigns against COVID-19-skeptical doctors as the result of the media and special interest groups cajoling medical boards throughout the country to bring more disciplinary cases against physicians for their dissident public speech.
In asking Thomas for a second look, the plaintiffs attorney says the case is ripe for intervention due to a circuit split on a related professional speech issue and because the Ninth Circuit has taken an overly narrow interpretation of theprofessional speech doctrine.
The doctrine, as it stands, curtails free speech defenses for professionals who violate laws where speech is incidental to their provision of professional advice given directly to a client.
We think this would be the perfect opportunity for the Supreme Court to remind the circuit courts that the states cannot regulate the public viewpoint speech of physicians just because they have a license, even in pandemic times, Jaffe told Law&Crime.
In the case, Jaffe has two co-counsels one of whom is previously well-known and was recently tapped for a cabinet position in the upcoming Trump administration: Robert F. Kennedy Jr.
Kennedy is a New York State-based attorney. He is the son of a former U.S. attorney general and the nephew ofthe 36th president. Both Kennedy s father and uncle were assassinated in the 1960s.
In hispro hac vice filingto appear on behalf of the plaintiffs on the opposite coast, the scion of the famous family is vouched for by co-counsel Todd S. Richardson as having a strong background in First Amendment and censorship issues relevant to the case as well knowledge of the substantive issues relating to Covid policy.
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