Case updates this week:

In our June 21, 2024 newsletter we wrote about the Fifth Circuit decision in Ass'n of Am. Physicians & Surgeons Educ. Found. v. Am. Bd. of Internal Med. The Association of American Physicians and Surgeons Educational Foundation’s (AAPS) sued several medical licensing boards along with Alejandro Mayorkas in his capacity as Secretary of Homeland Security over each of the defendants’ efforts to combat disinformation, misinformation and malinformation during the height of the COVID-19 pandemic. The Department of Homeland Security had established a Disinformation Governance Board to fight disinformation surrounding COVID-19. The various medical licensing boards had policies that threatened to strip physicians of their licenses for spreading medical dis-, mis-, or malinformation. 

In its complaint, AAPS put forth several legal claims, including a claim that the defendants’ battle against disinformation violated their members’ First Amendment “right to hear” speech. The First Amendment protects speakers from undue government restrictions on their ability to communicate to an audience. In limited circumstances, the Supreme Court has extended some of the protection owed to a speaker to include that speaker’s intended audience. Thus, when government action prevents a given speaker from speaking, the speaker’s intended audience, in limited circumstances, can claim an ancillary injury. 

As a membership organization, AAPS can have standing to sue on behalf of its members, but it must identify in its complaint at least one member who suffered the kind of injury that would give that individual standing to sue. The AAPS, which holds itself out as an educational organization, alleged that the defendants had “conspired” to wrongly characterize the information its members wanted to hear as disinformation, and then threatened to pull the medical licenses of members who conveyed that disinformation to others. The essential element missing from these allegations is someone whose speech had been restricted. The AAPS’s members were hearers, not speakers. Since hearers’ rights exist only in connection with a speaker’s rights, the District Court dismissed the AAPS’s “right to hear” claims with prejudice because they had no standing to sue.  

The Fifth Circuit agreed that the complaint did not contain factual allegations that would give AAPS or any of its members standing but ruled that it was an abuse of the District Court’s discretion to dismiss with prejudice instead of without prejudice. Despite acknowledging that there is no “right to hear” unconnected to a specific speaker’s free speech claim, the Fifth Circuit ruled as if the problem stemmed from AAPS’s lack of opportunity to uncover information during the discovery phase of litigation, rather than an instance of a plaintiff failing to make a claim for something the law recognizes. By giving AAPS the opportunity to hunt for facts to support a claim that the Court acknowledged does not exist, the Fifth Circuit implicitly legitimized the possibility that such a claim could exist under the right set of circumstances. This is a subtle shift in the law from “there is no standalone right to hear” to “there could be a standalone right to hear if you can hunt up the right facts.” The dissenting opinion then gave the AAPS advice on what facts to hunt for. On October 21, AAPS followed that advice and filed an amended complaint citing to the dissent throughout. 

This case provides an example of how doctrinal shifts happen in small increments, often below the level of public notice, often through decisions on procedure that may not appear to change the substance of the law. One of the reasons that Public Health Law Watch has shifted its tracking activities to capture litigation at its earliest stages is to create an early warning system that can identify these subtle increments of change early enough to challenge them before they become embedded in the law. This case provides an example of why we feel this work is crucial. We could use your help. If you know of cases we should be tracking please share with us using the button below: