Children’s Health Defense (CHD), Physicians for Informed Consent and a group of doctors who sued the Medical Board of California after it disciplined them for allegedly spreading COVID-19 “misinformation” have asked the U.S. Supreme Court to review their case.

The plaintiffs in Kory v. Bonta submitted their petition on March 1, following the November 2024 dismissal of their case by the 9th U.S. Circuit Court of Appeals.

California Attorney General Rob Bonta is named in the suit, along with the state’s medical board.

The lawsuit, filed in January 2024, is a follow-up to a previous complaint filed in 2022 and an amended suit filed in 2023, which challenged California’s Assembly Bill (AB) 2098 — a law allowing the medical board to discipline doctors who give “false” information about COVID-19 for engaging in unprofessional conduct.

A federal judge blocked AB 2098 in January 2023, and the law was later repealed. However, according to the lawsuit, the Medical Board of California is still targeting “COVID misinformation” and is threatening physicians with disciplinary action.

Three medical professionals — Dr. Brian Tyson, a board-certified family practitioner who owns an urgent care facility; Dr. LeTrinh Hoang, a pediatric osteopathic physician; and Dr. Pierre Kory, president emeritus of the Independent Medical Alliance, launched the lawsuit.

According to the petition to the Supreme Court, the Medical Board of California and the Osteopathic Medical Board of California, “with the assistance of the California Legislature,” have threatened disciplinary actions against the plaintiffs and other physicians for offering information to patients that departs from official COVID-19 narratives.

In April 2024, a federal district court rejected the plaintiffs’ request for an injunction against the medical board. The 9th Circuit upheld the ruling in November 2024. In January, the Supreme Court rejected the plaintiffs’ emergency application for an injunction.

Lawsuit hopes to set precedent that ‘informed consent is free speech’

The case seeks to resolve contradictory precedents from two federal appeals courts on whether the First Amendment protects physicians’ communications to patients — “a question that is particularly significant in a field like medicine, where scientific understanding is continually advancing and rarely settled.”

In a Physicians for Informed Consent press release, Rick Jaffe, who represents the plaintiffs, said the lawsuit “touches on the foundational rights of professionals to share knowledge and opinions essential for patient autonomy and informed consent.”

Tyson said patients cannot provide informed consent if their physicians are denied the opportunity to speak freely.

“We want doctors and all providers to be able to discuss risks and benefits with our patients, be able to speak out against things that are wrong, and be heard when breakthroughs are made,” Tyson said. “The hope is the Supreme Court will set the precedent that informed consent is free speech.”

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Supreme Court asked to decide between competing legal precedents

According to the petition, federal courts have established competing legal precedents relating to medical free speech.

In a 2022 decision in Tingley v. Ferguson, the 9th Circuit upheld the ability of professional boards in Washington to restrict members’ speech, arguing this is similar to the boards’ enforcement of “other restrictions on unprofessional conduct.”

But in a 2020 decision in Otto v. City of Boca Raton, the 11th Circuit struck down local ordinances that limited the speech of therapists and counselors, finding that such content-based and viewpoint-based restrictions violate the First Amendment, which has no carveout for controversial speech.

Tyson said the California Medical Board’s disciplinary proceedings against him jeopardized his career. “I had to defend my position against the [board] and almost lost my license … That would have been devastating to the community I serve and to all those I employ.”

Jaffe said Kory v. Bonta is similar to another First Amendment case relating to medical speech, Stockton v. Ferguson. Filed in March 2024, the lawsuit seeks “to protect the right of physicians to speak” and the public’s right to hear such speech.

CHD is a plaintiff in the lawsuit, as are several doctors facing disciplinary proceedings by the Washington Medical Commission for their public statements criticizing mainstream COVID-19 narratives. Basketball legend John Stockton is also a plaintiff, advocating for the public’s right to access and listen to “soapbox speech.”

In January, the Supreme Court denied the plaintiffs’ emergency appeal in Stockton v. Ferguson. The case remains active before the 9th Circuit. Oral arguments are scheduled for May 14, Jaffe said.

“The two cases represent the entire spectrum of cases involving what physicians say and would allow the court to give a definitive and comprehensive answer to whether and how much the First Amendment protects professionals when they communicate to patients and the public,” Jaffe said.

According to Physicians for Informed Consent, four justices must agree before the full court can hear Kory v. Bonta. If the Supreme Court decides to take the case, it will hear Kory v. Bonta in October.

Jaffe said the Supreme Court may ultimately jointly consider Kory v. Bonta and Stockton v. Ferguson. He credited CHD with its role in supporting both cases.

“We hope to establish the constitutional right of healthcare providers to speak out against the prevailing medical and scientific consensus about COVID-19, as well as whatever public health challenges face the country in the future,” Jaffe said.

Related articles in The Defender

• CHD Files New Lawsuit Alleging California Medical Board Still Trying to Discipline Doctors for Spreading COVID ‘Misinformation’
• U.S. Supreme Court Rejects Emergency Appeal in Medical Free Speech Case
• ‘I Can’t Stay Silent’: Basketball Legend Joins Lawsuit to Protect Free Speech After Son, Father Injured by Vaccines
• ‘Medical Warfare’: Doctors Who Questioned COVID Shots, Promoted Ivermectin Lose Certification
• Doctor Accused of Spreading ‘Misinformation’ Allowed to Appeal Medical Commission’s Investigation, Washington Court Rules