A federal appeals court on June 3 revived a lawsuit against medical boards over their COVID-19 censorship campaigns.
The Association of American Physicians and Surgeons Educational Foundation (AAPS) suit against three boards can move forward, the U.S. Court of Appeals for the 5th Circuit ruled, reversing a U.S. district judge’s dismissal of the case.
AAPS, which represents doctors, has plausibly alleged injury from the announcements from the boards that they would strip certification from doctors who spoke out against COVID-19 vaccines, masks, lockdowns, and Dr. Anthony Fauci, the appeals court panel found.
“AAPS sufficiently alleges injury-in-fact, traceability, and redressability for its First Amendment claims against the board defendants, meaning it has standing to pursue those claims,” U.S. Circuit Judge Kurt Engelhardt, writing for the unanimous panel, said.
U.S. District Judge Jeffrey Brown in 2023 dismissed the AAPS suit, ruling that the organization lacked standing to pursue the litigation.
Judge Brown wrongly barred AAPS from amending its complaint, or bringing forward an updated version, the appeals court said. He cited a local rule, but that rule undercuts federal judicial rules, according to the panel.
“Second, the district court did not give any explicit, much less meaningful, explanation as to why it refused leave to amend beyond a citation to Galveston Division Local Rule 6 and a cant invocation of futility, undue delay, and unfair prejudice that involved no analysis at all,” the panel said.
The circuit judges also said AAPS’s claims should have been dismissed without prejudice, which would have enabled a fresh suit to be filed.
The medical board defendants are the American Board of Internal Medicine, the American Board of Obstetrics & Gynecology, and the American Board of Family Medicine.
All three threatened to revoke credentials from doctors who offered certain views on COVID-19.
The American Board of Obstetrics & Gynecology, for instance, said in statements in 2021 and 2022 that it recommended COVID-19 vaccination for many Americans and that doctors who disseminated “misinformation and disinformation about COVID-19” and abortion would be investigated.
That threat “infringes on the constitutional rights of physicians” the AAPS complaint stated.
The boards are private organizations but AAPS has alleged they were acting as state actors, a bar met if it’s shown private groups act under “coercive power” or “significant encouragement” from the government, according to a previous U.S. Supreme Court ruling.
The appeals court panel declined to rule on that aspect of the complaint because Judge Brown did not. It remanded that aspect back to him, along with most of the rest of the suit.
Another portion of the litigation, brought against the federal government’s Disinformation Governance Board, was deemed moot because the board was disbanded after the suit was filed.
Andrew Schlafly, general counsel of AAPS, in a statement called the decision a “landmark ruling that will be cited nationwide for decades to come.”
The boards did not respond to requests for comment.
The panel consisted of U.S. Circuit Judges Carolyn Dineen King, James Ho, and Engelhardt. Judge King was appointed by former President Jimmy Carter. Judges Ho, Engelhardt, and Brown are all appointees of former President Donald Trump.
In a dissent, Judge Ho said he agreed with the majority decision but said he disagreed with finding the claims against the Disinformation Governance Board moot.
He pointed to earlier Supreme Court rulings that said “a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued” and “subsequent events [must] make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
“During oral argument, counsel for the government refused to assure us that the department would neither reconstitute the board nor replicate its functions through other means,” Judge Ho said.
He also called the allegations in the suit alarming, writing at one point: “In America, we don’t fear disagreement—we embrace it. We persuade—we don’t punish. We engage in conversation—not cancellation. We know how to disagree with one another without destroying one another.”
“Although I dissent in part,” he concluded, “I am grateful that, under the court’s decision today, the association will have full and fair opportunity to amend its complaint on remand.”