Public health policies cannot strip physicians of their free speech rights, the plaintiffs' lawyer said.

U.S. Supreme Court Justice Clarence Thomas this week revived an emergency application to block the Washington Medical Commission from investigating licensed physicians in the state over their criticism of COVID-19 policies.

The Washington state commission deems the doctors' dissenting views on the disease as potentially dangerous misinformation that should be suppressed. The physicians counter that just because they have medical licenses they don't forfeit their free speech rights under the First Amendment.

The Dec. 4 order by Thomas regarding the application in Stockton v. Ferguson was unusual in that Justice Elena Kagan rejected the same application on Nov. 20. The applicants renewed their request in a court filing directed to Thomas on Nov. 22.

Supreme Court rules allow an application that has been denied by one justice to be presented to another justice. Neither Thomas nor Kagan explained their respective decisions.

The application is now scheduled to be considered by all nine justices at the court's private judicial conference on Jan. 10, 2025. The justices could grant an injunction against the commission, deny the injunction, or schedule the case for oral argument.

As of Dec. 6, the Supreme Court had not requested a reply from the commission.

The application was brought by former professional basketball player John Stockton along with Drs. Richard Eggleston, Thomas Siler, and Daniel Moynihan and another 50 unidentified medical doctors, as well as Children's Health Defense, a nonprofit founded by Robert F. Kennedy Jr.

President-elect Donald Trump, who will be inaugurated on Jan. 20, 2025, has nominated Kennedy to be secretary of the U.S. Department of Health and Human Services. Kennedy, an attorney, is also listed as co-counsel on the application.

The applicants filed suit in the U.S. District Court for the Eastern District of Washington, which denied the injunction on May 22. The U.S. Court of Appeals for the Ninth Circuit denied the injunction on Sept. 3. An appeal remains pending in the Ninth Circuit.

The application states that it concerns the state's program that targets "Washington-licensed physicians for expressing public views on COVID-19 that diverge from prevailing orthodoxy."

The state calls the doctors' viewpoint "misinformation" and claims that it may "regulate this speech," which is something the Supreme Court ruled in National Institute of Family and Life Advocates v. Becerra (2018) that it cannot do, according to the application.

"The Court should speak clearly and decisively to state actors, professional organizations, other non-state actors, and the national media: Public speech does not lose its constitutional protection from government action simply because it is uttered by a healthcare professional, even if it is at odds with medical orthodoxy," the application stated.

In September 2021, based on its authority under Washington state's Uniform Disciplinary Act, the Washington Medical Commission began enforcing a policy against doctors "for public speech critical of COVID-19 policies," which has resulted in "disciplinary actions against at least ten healthcare practitioners," it stated.

Around the time the enforcement actions began, Washington Secretary of Health Dr. Umair A. Shah said, "It has never been more vital for trusted healthcare professionals to band together against the threat of misinformation."

"As we battle COVID-19, with so many tools at our disposal to protect ourselves and others, it is viral misinformation, rooted in unfounded scientific claims, that often stands in our way."

The commission is prosecuting Eggleston and Siler for opinion articles that they wrote in The Lewiston Tribune and American Thinker, respectively, that criticized COVID-19 policies.

The applicant Children's Health Defense, which has a Washington state medical doctor as a member, joined the application because "[the nonprofit group] is actively involved in advocacy and protecting freedom of speech and Covid vaccine related issues and educates the public on these issues," the application stated.

The applicants' attorney, Richard Jaffe of Sacramento, California, told The Epoch Times that he is "hopeful" about the application.

"It's a disfavored practice to go to a second Supreme Court justice after the first one has turned down the request, so it was a long shot," he said.

But Thomas "seems to think it's an important issue" that needs to be heard, Jaffe said.

There are many articles in the mainstream media "talking about how they're not sanctioning enough doctors for speaking out in public against vaccination or repeated boostering," he said.

"The country needs some guidance from the Supreme Court as to what the First Amendment means in terms of a physician's free speech," Jaffe said.

The Epoch Times reached out for comment to the respondent, Washington state Attorney General Bob Ferguson. No reply was received by publication time.
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