Fifth Circuit: Doctors Can Sue Three Medical Certification Boards That Tried to Suppress Criticism Over the Government’s Handling of COVID-19

The Association of American Physicians and Surgeons Educational Foundation (AAPS) filed a lawsuit in July 2022, against three medical certification boards and Alejandro Mayorkas, secretary of the U.S. Department of Homeland Security, on that grounds that they colluded to suppress speech critical of the government’s positions on COVID-19.

The medical certification boards accused of threating to decertify doctors are the American Board of Internal Medicine, the American Board of Obstetrics & Gynecology, and the American Board of Family Medicine.

In the complaint (PDF), AAPS alleged that the 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. 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.”

The lower court dismissed all of AAPS’s claims with prejudice, contending that AAPS lacked standing to assert the claims. The court also removed Mayorkas from the case.

But a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit disagreed that AAPS lacked standing. The appeals court agreed with the lower court’s decision to remove Mayorkas from the case.

On the violation of the First Amendment claims, the Fifth Circuit panel wrote (PDF) that AAPS “provides sufficient allegations to support standing: (1) AAPS asserts an injury-in-fact through the Board Defendants’ infringement on its right to hear ‘willing speakers,’ and it is premature to require AAPS to name specific ‘willing speakers’ at the pleading stage…”

The court also said that AAPS can trace its injuries “back to the Board Defendants’ actions because physicians would likely “react predictably” when confronted with a threat of decertification: they would choose self-censorship over professional self-immolation.”

Finally, the court contended that AAPS’s injuries are redressable and remanded the case back to the lower court.

“Censoring viewpoints offends the First Amendment,” said Mat Staver, founder and chairman of Liberty Counsel. “Doctors need to feel free to exchange ideas to discover new scientific facts and objectively treat their patients. Cancelling doctors for their opinions hurts the medical profession. Censorship has no place in a free society.”