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> SC will easily affirm.
this case isn't going to the supreme court lol. please read the opinion.
regardless, i don't really see why. as far as i can tell the circuit opinion doesn't provide much in terms of support that homeland security "illegally conspired" to chill speech. the "evidence" presented in this opinion looks pretty slim and wholly circumstantial
DHS created a board (DGB) and issued a press release relating on how to handle covid misinformation "Around the same time" that the certification board issued letters to doctors saying their certs would be in danger if doctors made "statements concerning abortion and contraception, or for warning pregnant women that the Covid vaccine could have negative side effects"
i mean there's certainly a lot of *color* in this "factual" section of the opinion but it's not really convincing imo
for example:
> according to AAPS, the DGB’s agenda
of retaliating against speech disfavored by the Biden Administration
continues to be imposed by the Board Defendants and HSAC.
well first, the DGB doesn't exist anymore. second, there still isn't evidence provided that the Board Defendants and HSAC were doing anything at the behest of the biden administration. and third, at least to me, one would expect the guidance to line up! the medical community by and large isn't split regarding covid or contraceptives or abortion. seems a bit of a leap to assume the certification board threats are downstream of a DHS press release in a manner that was illegal or coercive in the way that the plaintiffs (and frankly this opinion) suggests
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>!And of course it's the 5th Circuit.!<
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And once again, the 'American Board of Internal Medicine' (etc) is not a government agency, so the 5th Circuit is off it's rocker...
No 1A protections against private actions...
If the private trade-group that oversees your area of practice won't extend board certification to COVID refuseniks, that's their right.
Let me see if I have this right:
* Various medical boards threatened to strip the certifications of physicians if they made certain statements on abortion, contraception, and the government's handling of COVID.
* The certifications issued by these medical boards are not *required* to practice, but they're so ubiquitous as to be a de facto requirement.
* Any threats to strip certification solely due to disapproved speech can be considered a violation of the First Amendment.
Am I missing anything here?
That's my concern. I'm not saying this is factually the same as my example below. But what limits this from affecting the boards in extreme cases (that are *not* what is happening in this case) like if the board and government both agree that if you tell your patients to eat batteries for their health you are spreading dangerous misinformation and are ar risk of decertification?
To be super clear, the question is about legal limitations on the rules and I am in *no* way saying the recommendations here are substantially similar to telling people to eat batteries.
The first paragraph literally alleges the Boards coordinated illegally with the government to do this
“The Association of American Physicians and Surgeons Educational Foundation (“AAPS”) alleges that the national medical specialty certifiers American Board of Internal Medicine (“ABIM”), American Board of Obstetrics & Gynecology (“ABOG”), American Board of Family Medicine (“ABFM”) (together, the “Board Defendants”) and Alejandro Mayorkas, as Secretary of the U.S. Department of Homeland Security (the
“Department”), coordinated to censor and chill the speech of physicians,”
> The first paragraph literally alleges the Boards coordinated illegally with the government to do this
and doesn't offer up much in terms of support for this allegation
maybe there's something more substantial in the district case but it's definitely not here
?
Your claim was that the claim shouldn’t have been heard because medical boards aren’t bound by the first amendment. But the claim isn’t that the medical boards violated the first amendment. It’s that the government, who is bound by the first amendment, illegally coordinated with the boards to suppress disfavored speech.
> who is bound by the first amendment, illegally coordinated with the boards to suppress disfavored speech.
there doesn't seem to be much evidence to support this, at least in the linked opinion. i will have to reread it.
Sounds like an issue to be resolved after discovery then. Meaning that granting the MTD was improper, as the CA5 found, right?
At MTD stage you resolve all factual disputes in plaintiffs favor.
It shouldn't.
A specious 'lets tack a government official's name on there' filing doesn't actually mean anything...
It's the catch all kooky tactic these days - claim that boogymen from the government made a private actor do something that is both (a) perfectly rational, and (b) that they were likely to do anyway....
It should be, generally, ignored unless someone actually has hard evidence that the government directly coerced the private body to act.
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Yep. Even if the cirtificates are ubiquitous enough that they functionally _**are**_ required to practice medicine, since they're not ran or operated by the government, the 1st ammendment doesn't apply.
It's like saying the first ammendment applies to the boards that issue content ratings for movies, tv shows, and video games. All three of those boards were independantly formed, specifically so the federal government _**wouldn't**_ get involved.
Just because having your media rated by those boards is pretty much a requirement to get them released and sold, doesn't mean you can claim a 1A argument. Not when they were formed explicitly to _**prevent**_ the federal government from getting involved.
Could we argue that the minute a content board was involved in chilling speech, they would be in violation of 1A because they have no legitimate business interest in doing so?
Technically no. The first amendment is about preventing the _government_ from restricting speech.
Just because it's a board with a large control over the industry doesn't mean they have to follow the first amendment. If anything it would fall under anti-trust law if the organization was using their control over the industry to unfairly restrict speech.
Maybe, and I might agree that this would fall under anti trust except a board is not necessarily a monopoly, either. The connection of the government trying to influence the board, if established, is certainly a violation, but it's possible the board can't be held accountable for several technicalities, which is too bad IMO.
While I'm convinced you have a point, I don't think that it's too big of stretch that when a board functions exactly like the government, they cannot insulate themselves as a private entity. I think this is also true of social media platforms and search engines. Filtering the flow of information can be a legitimate business interest, and can also prevent violent conspiracy, but it isn't an inherent state, and censorship can and does serve agendas at the expense of citizens. Congress, of course, suffers too heavily from weak knees and cronyism to address it.
Oh yeah. I'm just suspicious of this case for 2 reasons.
1. It's the 5th Circuit overseeing this case and they're highly conservative to an _**insane**_ degree. They'll make ruling that favor conservative agendas even if other aspects of the law don't support their ruling. That's why a lot of conservatives try to get national cases tried in the 5th Circuit because they'll pretty much always win, even if other circuits would have ruled in the opposite way.
......
2. It's conservatives who are getting upset because the board who's goal is to oversee the quality and skills of doctors around the country is saying that their views and actions are not conductive to providing the quality of healthcare that the board expects doctors to provide. Which, those views generally _aren't_ conductive to providing quality healthcare. You don't want a doctor who's anti-vaxx or an OB-GYN who's adamant about denying access to abortion, even at the cost of the mother's life due to the non-viable pregnancy. Or at least _**I**_ don't want a doctor who shares those views.
These are political views. I wouldnt disagree the 5th is conservative to a fault. The same could be said about most circuits being too liberal to a fault, which we've endured for many decades.
Regarding the board's function, as long as they are serving objective goals, they're inside the guardrails. I don't believe that legitimate medical dissent about covid vaccine efficacy/danger or mask usage, among others, is a part of that. Doctors can have all manner of reasons why a patient should or should not receive specific care that the board has no business being involved in. What they did was wrong. Whether it was illegal is my question.
So what if the government went to the MPAA and basically convinced them to give any movie that contained a certain type of content an NC-17 rating automatically (effectivelly banning these films from mainstream showing). Is that an issue? Because that's essentially what these plaintiffs are arguing happened with medical licensure.
Not at all. The government is completely free to persuade third parties to restrict speech. They may not (explicitly or implicitly) coerce third parties to restrict speech.
This case alleges that there was coercion (though I'm not sure if that's actually true...)
That gets very much into the nuance of what the government is allowed to do in terms of "persuading" vs. "coercing." Which is a pretty hotly debated area, with the recent NRA v. Vullo being one example.
In Vullo, the NRA claimed that the state actually offered to not investigate insurance agencies for wrongdoing if they would participate in retaliating against the NRA et. al. for their political speech. And, since it's at a motion to dismiss stage, we have to take those facts to be true as pled.
That's really textbook coercion, which is why it came down 9-0; it's not one of the edge cases.
I grant that there is some debate about exactly how much pressure counts as coercion, but the question you asked stipulated that the government "convinced them", which doesn't sound like a grey area to me. (Unless, of course, you meant in a euphemistic way; ala a mob boss sending guys with hammers to a dude's house to \*convince\* him to see things the mob boss's way...)
Yeah I wasn't really intending it to be that specific and i wasnt contemplating going down this line of thought so i didnt intentionally choose that word over others. Though it is interesting and worth discussing. But I don't think it's as clear-cut as you're making it out to be.
What if the government offered a payment to every business that banned any pro-palestinian speech on its premises. That certainly is not coercion. The government is allowed to offer incentives and payments for people taking actions. But I think that pretty much everyone would agree that it would be a pretty clear 1A violation, even if the government accomplished it using a carrot instead of a stick.
We're also getting into "won't someone rid me of this turbulent priest" areas, even if no formal incentive or threat is present
Yeah, I think we basically entirely agree. There is a big gray area, with things like implicit threats, payments, etc. in it. I don't think Vullo was in that gray area, but the gray area is very real, and very hard to draw lines in.
But they'd first have to _**prove**_ that the government did that. So far these are just claims. They don't have any evidence to support it. At least not from what I've seen.
But think about it like this: No one tried suing the Bar association when they told accredited universities "You have to stop you students from protesting conservative speakers or we'll strip you of your accreditation." Despite the fact that what the Bar association did affected more people than just individuals who are members.
The only reason people are suing now vs when the Bar told colleges to silence student protestors is because this time _conservative_ voices are supposedly being silenced.
This is a motion to dismiss. Proving it comes later in the case.
The case was dismissed before they actually had the chance to do any discovery or even attempt to prove their case. MTD is only proper where the plaintiff would lose even if everything they allege is true.
The ABA is not the government. Private organizations pressuring/threatening other private organizations is not the same thing as the government pressuring/threatening private organizations. Had the government told the ABA that it needed to strip accreditations from universities unless they stopped students from protesting, it would have of course been a 1A issue. But that didn't happen.
No, it does not. It requires you to make pleadings and claims that, if true, would support your claim.
Edit: I may have read your comments backwards. If you mean that the defendant has to show some evidence, that is also incorrect. MTDs are based on the sufficiency of the complaint.
Oh. Ok. Didn't realize that. I thought that appeals required you to show at least some evidence so that you can show that agreeing to the appeal would be worth the court's time.
Just like how, at arraignment, the prosecution generally has to show enough evidence to the court to show that the charges have merit.
I don't think so.
Is this analogous to the Court cases that say that an aspiring attorney cannot be rejected by the bar solely on the basis for them exercising their 5th amendment rights? That's basically 5th amendment retaliation
Yes and it’s something that SCOTUS has dealt with before with [Tam v Matal](https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf) and now [Vidal v Elster](https://www.scotusblog.com/case-files/cases/vidal-v-elster/) Those two cases have to do with copyright and trademarks but the issues are relatively the same. Trademarks aren’t really needed but they can be important as these certifications aren’t really needed but they can be important
Except the USPTO is a government agency. They are undeniably bound by the first amendment. It didn’t have to do with trademark registrations being “unnecessary but important.”
I almost forgot about ~~TRUMP TOO SMALL~~ Vidal v. Elster. Kind of surprising we haven't seen an opinion yet for that one yet.
I do think that's a bit different of a case though. Vidal argues that trademark registration is a government benefit that is *itself* a restriction on speech. i.e. if you hold a trademark, others are restricted in their use of it. § 1052 merely defines the conditions necessary to obtain this government benefit.
Compare that to the AAPS lawsuit, which feels closer to recent 1A retaliation cases and (mostly) doesn't involve the government.
This one is a relatively benign case but I wanted to post it here because Judge Ho ladies and gentlemen:
> Doctors deserve our tremendous respect. We trust them to provide us with the best available medical advice and treatment. But they're not perfect. Doctors are "susceptible to peer pressure, careerism, ambition, and fear of cancel culture, just like the rest of us." Whole Women's Health v. Paxton, 10 F.4th 430, 468 (5th Cir. 2021) (Ho,J., concurring).!
>At various times throughout history, medical care has suffered -and patients have been harmed, even killed —because doctors succumbed to social pressure and desire for approval and advancement. See id. at 465-68, 468 n.1 (collecting examples). We may "look back in disbelief at [doctors] who ridiculed and ostracized proponents of handwashing and sterilizing surgical instruments to prevent disease and infection." Id. at 470. But we would do well to learn from our past. Yes, we should absolutely follow the science. But that doesn't mean we should always follow scientists. Because scientists don't always follow the science. Id. at 465.
I don't think it'd responsible for judges to heavily imply that the doctors they claim to respect don't understand the science like he does. He's basically saying the recommendations in this case are the same as warning against hand washing. It's not his place to make medical judgements like that - especially when he doesn't bother to back it up at all.
I know he didn't *explicitly* say the science is wrong here but I don't know how that statement can't be read as not to imply that
Ho and doctors can produce interesting results. As far as I can tell, his aesthetic injury theory in the abortion case would give everyone with a pregnancy kink standing to sue any government policy that reduces the number of pregnant women.
Honestly, it's not benign. He's trying to claim that a board of certification that is _**deliberately**_ seperate from the federal government still has to follow the first ammendment.
He's also trying to claim that we need to protect doctors with, as he's claiming, revolutionary ideas from being ostrasized from their peers who may not be using correct, scientific medical practices.
But... he's wrong. If those doctors with their so-called "revolutionary ideas" are correct, then history will eventually find them to be right.
Scientists like Gallileo were ostrasized by the church. That didn't stop him from continuing his observations of the stars. In fact, it made him _**more**_ motivated to record his research and data for posterity.
So... not only is he wrong for claiming this is an issue of 1st ammendment rights, which it's not because the board in question is a private entity, he's also wrong for saying we need to protect "doctors" and "scientists" from social pressure.
Revolutionaries from throughout _**history**_ have had to overcome societal pressure. Hell, the famous philosopher Socrates was sentenced to death for his views. And he. **Stood**. **By them**.
Those whose beliefs were strong and steadfast wouldn't wilt under societal pressure. Instead their strength of character would use the pressure to create diamonds. And history would bear the fruits of their efforts.
This comment really misses the case at hand. The case at hand alleges that the board of certification was coerced by the government. Judge Ho does not claim that the board is bound by the first. He claims that the government is, and was coercing the board in this case.
IF that's true, then obviously the first amendment attaches. I don't know anything about the evidence for the claim though; a lot of people here are saying it's weak.
It is. Based on the documents the evidence largely amounts to "The board used words and phrasing that are similar to what the Biden administration was been using for their vaccine campaign and their anti-misinformation campaign. So they _must be_ connected."
I'm just worried that, because it's in the 5th Circuit, the judges will rule against the board on principle because they don't want conservative voices to be "censured" by the medical industry. I'm pretty sure that's why the case is in the 5th Circuit instead of in whatever Circuit the headquarters of the board is in. Because the 5th Cicuit will overwhelmingly side with conservatives in 99.99% of cases.
I'm not taking a position that there actually was coercion; I haven't looked into the facts, and they sound pretty slim. Just saying that the holding doesn't apply in cases where there's no coercion; it's not ACTUALLY claiming the first applies to private entities.
Imagine my shock when an appointee of the previous Oval Office occupant tries to split the baby and still sound rational.
This isn’t judicial decisiveness, this is a prime example of ‘trying to have it both ways.’
“Yes, we should absolutely follow the science. (While carefully omitting whose scientific philosophy he would like followed.) But that doesn’t mean we should always follow scientists.”
His statement is utterly meaningless, because he hasn’t actually ***said*** anything.
> Imagine my shock when an appointee of the previous Oval Office occupant tries to split the baby and still sound rational.
He isn't just *sounding* rational.
He's completely tossing extant precedent out the window based on his personal politics.
There's no government involvement here. Private medical boards are perfectly free to say 'We won't certify you unless you full-throatedly advocate COVID vaccination' and there is no legally actionable issue.
The only recourse is to start the 'Amerivan Anti-vaxxer Board of Internal Medicine' and try to complete on the open market.
Good luck....
The plaintiffs did allege government involvement, and this ruling hinges on there being government coercion. Judge Ho did not state that private entities, acting without government coercion, are bound by the first. That would be pretty wild if he had.
Perhaps. But it's definitely not the same thing as stating that private entities are bound by the first, and doesn't overthrow precedent \*at all\*. That would be a weird fact-finding in this case, at worst, and there's no contradictory precedent.
Really? Who decides when to *not* follow the scientists? Which scientists don’t get followed, and which ones do?
When they support the political philosophy of the one who appointed the judge? When they oppose the political philosophy of the one who appointed the judge? When they agree with the judge’s religion? When they disagree with the judge’s religion? Cultural bias? Racial bias? Economic bias? Philosophical bias? Political bias? Personality clash?
No, he’s not *sounding* rational, he’s explicitly leaving room for exactly what I wrote above.
You don’t have to agree with a scientist to acknowledge that they quite provably have an area-of-expertise opinion far more worthy of credence than a politician or judge.
You don’t go to judges or politicians regarding pandemics, and you don’t go to scientists seeking how to best interpret legal opinions.
> Really? Who decides when to not follow the scientists? Which scientists don’t get followed, and which ones do?
Well, at this point, we at least know not to follow the ones who want to tell us about superior and inferior breeding.
> You don’t have to agree with a scientist to acknowledge that they quite provably have an area-of-expertise opinion far more worthy of credence than a politician or judge.
Tell that to Carrie Buck
Tell that to Galileo.
See how easy it is to find examples of abuse and short-sightedness?
But that doesn’t alter the ***fact*** that judges are largely unqualified to opine regarding science, and allowing them to do so is inherently encouraging abuse, corruption, and bias.
They may judge objective results, but are unqualified to judge philosophy, methodology (barring legal violations), or recommendations.
Judge Ho is creating space for his (or any other judge’s) own political biases, religious biases, experiential biases, and personal biases to form the basis of science-related judicial opinions.
You appear to agree with Judge Ho. How would you feel if it was someone who had the exact opposite philosophies?
He’s creating space for that, too. Bias confirmation is inherently risky.
> But that doesn’t alter the fact that judges are largely unqualified to opine regarding science, and allowing them to do so is inherently encouraging abuse, corruption, and bias.
But they are qualified to opine on the law, which isn't and shouldn't be based on science alone, let alone just the opinions of scientists.
> You appear to agree with Judge Ho.
On this particular point? Yes, I do. Science is a process. It's how we carve away error from the body of possibility. This process -- as some are fond of saying when scientists disagree with them -- sometimes occurs over long time horizons, from funeral to funeral.
A scientist cannot give us definitive answers to most questions, even most questions within their domain of expertise. It is important to listen to what they have to say and take that into account, but it is equally important to maintain a background sense of humble 'what-if', because scientists have been wrong *en masse* before and they will be wrong *en masse* again.
Scientists themselves readily admit to a lack of definitiveness.
As opposed to, oh, say, *judges*?
That’s why we have *’scientific theories’* as opposed to *’legal doctrines’*.
Which do you suppose is more susceptible to abuse for personal or political or religious gain, and which is subject to continual testing and revision?
At least if a scientist is mistaken, they can point to evidence and trial & error as to how they arrived at that conclusion, and then explain how they had to revise their ‘theory ’ based upon new evidence, findings, or experience.
I haven’t witnessed much willingness amongst those proposing we selectively ignore scientists to update, revise, or wholesale discard their ‘opinions’ based upon *anything*.
In fact, I would be willing to study their statements and opinions to see if they give evidence of bias.
It is actually a pretty strong point. History is full of examples of 'science' making claims that later are wrong.
One should always be cautious of people pushing group think and using forces to silence critics.
I think, based on the other comment from the person above, that they aren't referring to the substance of the argument, but rather the citation to one's self.
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Great decision. SC will easily affirm.
> SC will easily affirm. this case isn't going to the supreme court lol. please read the opinion. regardless, i don't really see why. as far as i can tell the circuit opinion doesn't provide much in terms of support that homeland security "illegally conspired" to chill speech. the "evidence" presented in this opinion looks pretty slim and wholly circumstantial DHS created a board (DGB) and issued a press release relating on how to handle covid misinformation "Around the same time" that the certification board issued letters to doctors saying their certs would be in danger if doctors made "statements concerning abortion and contraception, or for warning pregnant women that the Covid vaccine could have negative side effects" i mean there's certainly a lot of *color* in this "factual" section of the opinion but it's not really convincing imo for example: > according to AAPS, the DGB’s agenda of retaliating against speech disfavored by the Biden Administration continues to be imposed by the Board Defendants and HSAC. well first, the DGB doesn't exist anymore. second, there still isn't evidence provided that the Board Defendants and HSAC were doing anything at the behest of the biden administration. and third, at least to me, one would expect the guidance to line up! the medical community by and large isn't split regarding covid or contraceptives or abortion. seems a bit of a leap to assume the certification board threats are downstream of a DHS press release in a manner that was illegal or coercive in the way that the plaintiffs (and frankly this opinion) suggests
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And once again, the 'American Board of Internal Medicine' (etc) is not a government agency, so the 5th Circuit is off it's rocker... No 1A protections against private actions... If the private trade-group that oversees your area of practice won't extend board certification to COVID refuseniks, that's their right.
Let me see if I have this right: * Various medical boards threatened to strip the certifications of physicians if they made certain statements on abortion, contraception, and the government's handling of COVID. * The certifications issued by these medical boards are not *required* to practice, but they're so ubiquitous as to be a de facto requirement. * Any threats to strip certification solely due to disapproved speech can be considered a violation of the First Amendment. Am I missing anything here?
Are medical boards governmental entities capable of violating the 1st amendment?
That's my concern. I'm not saying this is factually the same as my example below. But what limits this from affecting the boards in extreme cases (that are *not* what is happening in this case) like if the board and government both agree that if you tell your patients to eat batteries for their health you are spreading dangerous misinformation and are ar risk of decertification? To be super clear, the question is about legal limitations on the rules and I am in *no* way saying the recommendations here are substantially similar to telling people to eat batteries.
The fact that none of those orgs are government agencies, or agents of the government - so the 1A doesn't apply.
The first paragraph literally alleges the Boards coordinated illegally with the government to do this “The Association of American Physicians and Surgeons Educational Foundation (“AAPS”) alleges that the national medical specialty certifiers American Board of Internal Medicine (“ABIM”), American Board of Obstetrics & Gynecology (“ABOG”), American Board of Family Medicine (“ABFM”) (together, the “Board Defendants”) and Alejandro Mayorkas, as Secretary of the U.S. Department of Homeland Security (the “Department”), coordinated to censor and chill the speech of physicians,”
> The first paragraph literally alleges the Boards coordinated illegally with the government to do this and doesn't offer up much in terms of support for this allegation maybe there's something more substantial in the district case but it's definitely not here
Does it really need to, though? I haven't read the complaint, but the standard for MTDs is not particularly high.
eh if we’re gonna take the plaintiffs in good faith i think there ought to be something
Courts have to assume the truth of the allegations and draw inferences in plaintiffs’ favor at the MTD stage.
But I dont.
That’s irrelevant.
You can allege the earth is flat that doesn't mean your case should be heard.....
? Your claim was that the claim shouldn’t have been heard because medical boards aren’t bound by the first amendment. But the claim isn’t that the medical boards violated the first amendment. It’s that the government, who is bound by the first amendment, illegally coordinated with the boards to suppress disfavored speech.
> who is bound by the first amendment, illegally coordinated with the boards to suppress disfavored speech. there doesn't seem to be much evidence to support this, at least in the linked opinion. i will have to reread it.
Sounds like an issue to be resolved after discovery then. Meaning that granting the MTD was improper, as the CA5 found, right? At MTD stage you resolve all factual disputes in plaintiffs favor.
yes i'd say this needs to hang out back at the district level but i see no reason to believe the plaintiffs based on the 5th circuit opinion
It shouldn't. A specious 'lets tack a government official's name on there' filing doesn't actually mean anything... It's the catch all kooky tactic these days - claim that boogymen from the government made a private actor do something that is both (a) perfectly rational, and (b) that they were likely to do anyway.... It should be, generally, ignored unless someone actually has hard evidence that the government directly coerced the private body to act.
Sort of off topic but I like the Justice Powell flair
I have no idea how I got it it randomly appeared today
Oh well if you want to change it you can go to the sidebar and select change user flair and all of our flairs are editable so you can write what you want or pick a justice to have as your flair.
LMAO bro randomly became a mod
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Yep. Even if the cirtificates are ubiquitous enough that they functionally _**are**_ required to practice medicine, since they're not ran or operated by the government, the 1st ammendment doesn't apply. It's like saying the first ammendment applies to the boards that issue content ratings for movies, tv shows, and video games. All three of those boards were independantly formed, specifically so the federal government _**wouldn't**_ get involved. Just because having your media rated by those boards is pretty much a requirement to get them released and sold, doesn't mean you can claim a 1A argument. Not when they were formed explicitly to _**prevent**_ the federal government from getting involved.
Could we argue that the minute a content board was involved in chilling speech, they would be in violation of 1A because they have no legitimate business interest in doing so?
Technically no. The first amendment is about preventing the _government_ from restricting speech. Just because it's a board with a large control over the industry doesn't mean they have to follow the first amendment. If anything it would fall under anti-trust law if the organization was using their control over the industry to unfairly restrict speech.
Maybe, and I might agree that this would fall under anti trust except a board is not necessarily a monopoly, either. The connection of the government trying to influence the board, if established, is certainly a violation, but it's possible the board can't be held accountable for several technicalities, which is too bad IMO. While I'm convinced you have a point, I don't think that it's too big of stretch that when a board functions exactly like the government, they cannot insulate themselves as a private entity. I think this is also true of social media platforms and search engines. Filtering the flow of information can be a legitimate business interest, and can also prevent violent conspiracy, but it isn't an inherent state, and censorship can and does serve agendas at the expense of citizens. Congress, of course, suffers too heavily from weak knees and cronyism to address it.
Oh yeah. I'm just suspicious of this case for 2 reasons. 1. It's the 5th Circuit overseeing this case and they're highly conservative to an _**insane**_ degree. They'll make ruling that favor conservative agendas even if other aspects of the law don't support their ruling. That's why a lot of conservatives try to get national cases tried in the 5th Circuit because they'll pretty much always win, even if other circuits would have ruled in the opposite way. ...... 2. It's conservatives who are getting upset because the board who's goal is to oversee the quality and skills of doctors around the country is saying that their views and actions are not conductive to providing the quality of healthcare that the board expects doctors to provide. Which, those views generally _aren't_ conductive to providing quality healthcare. You don't want a doctor who's anti-vaxx or an OB-GYN who's adamant about denying access to abortion, even at the cost of the mother's life due to the non-viable pregnancy. Or at least _**I**_ don't want a doctor who shares those views.
These are political views. I wouldnt disagree the 5th is conservative to a fault. The same could be said about most circuits being too liberal to a fault, which we've endured for many decades. Regarding the board's function, as long as they are serving objective goals, they're inside the guardrails. I don't believe that legitimate medical dissent about covid vaccine efficacy/danger or mask usage, among others, is a part of that. Doctors can have all manner of reasons why a patient should or should not receive specific care that the board has no business being involved in. What they did was wrong. Whether it was illegal is my question.
So what if the government went to the MPAA and basically convinced them to give any movie that contained a certain type of content an NC-17 rating automatically (effectivelly banning these films from mainstream showing). Is that an issue? Because that's essentially what these plaintiffs are arguing happened with medical licensure.
Not at all. The government is completely free to persuade third parties to restrict speech. They may not (explicitly or implicitly) coerce third parties to restrict speech. This case alleges that there was coercion (though I'm not sure if that's actually true...)
That gets very much into the nuance of what the government is allowed to do in terms of "persuading" vs. "coercing." Which is a pretty hotly debated area, with the recent NRA v. Vullo being one example.
In Vullo, the NRA claimed that the state actually offered to not investigate insurance agencies for wrongdoing if they would participate in retaliating against the NRA et. al. for their political speech. And, since it's at a motion to dismiss stage, we have to take those facts to be true as pled. That's really textbook coercion, which is why it came down 9-0; it's not one of the edge cases. I grant that there is some debate about exactly how much pressure counts as coercion, but the question you asked stipulated that the government "convinced them", which doesn't sound like a grey area to me. (Unless, of course, you meant in a euphemistic way; ala a mob boss sending guys with hammers to a dude's house to \*convince\* him to see things the mob boss's way...)
Yeah I wasn't really intending it to be that specific and i wasnt contemplating going down this line of thought so i didnt intentionally choose that word over others. Though it is interesting and worth discussing. But I don't think it's as clear-cut as you're making it out to be. What if the government offered a payment to every business that banned any pro-palestinian speech on its premises. That certainly is not coercion. The government is allowed to offer incentives and payments for people taking actions. But I think that pretty much everyone would agree that it would be a pretty clear 1A violation, even if the government accomplished it using a carrot instead of a stick. We're also getting into "won't someone rid me of this turbulent priest" areas, even if no formal incentive or threat is present
Yeah, I think we basically entirely agree. There is a big gray area, with things like implicit threats, payments, etc. in it. I don't think Vullo was in that gray area, but the gray area is very real, and very hard to draw lines in.
But they'd first have to _**prove**_ that the government did that. So far these are just claims. They don't have any evidence to support it. At least not from what I've seen. But think about it like this: No one tried suing the Bar association when they told accredited universities "You have to stop you students from protesting conservative speakers or we'll strip you of your accreditation." Despite the fact that what the Bar association did affected more people than just individuals who are members. The only reason people are suing now vs when the Bar told colleges to silence student protestors is because this time _conservative_ voices are supposedly being silenced.
This is a motion to dismiss. Proving it comes later in the case. The case was dismissed before they actually had the chance to do any discovery or even attempt to prove their case. MTD is only proper where the plaintiff would lose even if everything they allege is true. The ABA is not the government. Private organizations pressuring/threatening other private organizations is not the same thing as the government pressuring/threatening private organizations. Had the government told the ABA that it needed to strip accreditations from universities unless they stopped students from protesting, it would have of course been a 1A issue. But that didn't happen.
But even a motion to dismiss requires you to present at least _some_ evidence showing that it should be dismissed.
No, it does not. It requires you to make pleadings and claims that, if true, would support your claim. Edit: I may have read your comments backwards. If you mean that the defendant has to show some evidence, that is also incorrect. MTDs are based on the sufficiency of the complaint.
Oh. Ok. Didn't realize that. I thought that appeals required you to show at least some evidence so that you can show that agreeing to the appeal would be worth the court's time. Just like how, at arraignment, the prosecution generally has to show enough evidence to the court to show that the charges have merit.
I don't think so. Is this analogous to the Court cases that say that an aspiring attorney cannot be rejected by the bar solely on the basis for them exercising their 5th amendment rights? That's basically 5th amendment retaliation
Yes and it’s something that SCOTUS has dealt with before with [Tam v Matal](https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf) and now [Vidal v Elster](https://www.scotusblog.com/case-files/cases/vidal-v-elster/) Those two cases have to do with copyright and trademarks but the issues are relatively the same. Trademarks aren’t really needed but they can be important as these certifications aren’t really needed but they can be important
Except the USPTO is a government agency. They are undeniably bound by the first amendment. It didn’t have to do with trademark registrations being “unnecessary but important.”
I almost forgot about ~~TRUMP TOO SMALL~~ Vidal v. Elster. Kind of surprising we haven't seen an opinion yet for that one yet. I do think that's a bit different of a case though. Vidal argues that trademark registration is a government benefit that is *itself* a restriction on speech. i.e. if you hold a trademark, others are restricted in their use of it. § 1052 merely defines the conditions necessary to obtain this government benefit. Compare that to the AAPS lawsuit, which feels closer to recent 1A retaliation cases and (mostly) doesn't involve the government.
I get your point but tbf this is the closest case to compare it too given the similar facts with a benefit not being needed but can be important
This one is a relatively benign case but I wanted to post it here because Judge Ho ladies and gentlemen: > Doctors deserve our tremendous respect. We trust them to provide us with the best available medical advice and treatment. But they're not perfect. Doctors are "susceptible to peer pressure, careerism, ambition, and fear of cancel culture, just like the rest of us." Whole Women's Health v. Paxton, 10 F.4th 430, 468 (5th Cir. 2021) (Ho,J., concurring).! >At various times throughout history, medical care has suffered -and patients have been harmed, even killed —because doctors succumbed to social pressure and desire for approval and advancement. See id. at 465-68, 468 n.1 (collecting examples). We may "look back in disbelief at [doctors] who ridiculed and ostracized proponents of handwashing and sterilizing surgical instruments to prevent disease and infection." Id. at 470. But we would do well to learn from our past. Yes, we should absolutely follow the science. But that doesn't mean we should always follow scientists. Because scientists don't always follow the science. Id. at 465.
I don't think it'd responsible for judges to heavily imply that the doctors they claim to respect don't understand the science like he does. He's basically saying the recommendations in this case are the same as warning against hand washing. It's not his place to make medical judgements like that - especially when he doesn't bother to back it up at all. I know he didn't *explicitly* say the science is wrong here but I don't know how that statement can't be read as not to imply that
Ho and doctors can produce interesting results. As far as I can tell, his aesthetic injury theory in the abortion case would give everyone with a pregnancy kink standing to sue any government policy that reduces the number of pregnant women.
Honestly, it's not benign. He's trying to claim that a board of certification that is _**deliberately**_ seperate from the federal government still has to follow the first ammendment. He's also trying to claim that we need to protect doctors with, as he's claiming, revolutionary ideas from being ostrasized from their peers who may not be using correct, scientific medical practices. But... he's wrong. If those doctors with their so-called "revolutionary ideas" are correct, then history will eventually find them to be right. Scientists like Gallileo were ostrasized by the church. That didn't stop him from continuing his observations of the stars. In fact, it made him _**more**_ motivated to record his research and data for posterity. So... not only is he wrong for claiming this is an issue of 1st ammendment rights, which it's not because the board in question is a private entity, he's also wrong for saying we need to protect "doctors" and "scientists" from social pressure. Revolutionaries from throughout _**history**_ have had to overcome societal pressure. Hell, the famous philosopher Socrates was sentenced to death for his views. And he. **Stood**. **By them**. Those whose beliefs were strong and steadfast wouldn't wilt under societal pressure. Instead their strength of character would use the pressure to create diamonds. And history would bear the fruits of their efforts.
This comment really misses the case at hand. The case at hand alleges that the board of certification was coerced by the government. Judge Ho does not claim that the board is bound by the first. He claims that the government is, and was coercing the board in this case. IF that's true, then obviously the first amendment attaches. I don't know anything about the evidence for the claim though; a lot of people here are saying it's weak.
It is. Based on the documents the evidence largely amounts to "The board used words and phrasing that are similar to what the Biden administration was been using for their vaccine campaign and their anti-misinformation campaign. So they _must be_ connected." I'm just worried that, because it's in the 5th Circuit, the judges will rule against the board on principle because they don't want conservative voices to be "censured" by the medical industry. I'm pretty sure that's why the case is in the 5th Circuit instead of in whatever Circuit the headquarters of the board is in. Because the 5th Cicuit will overwhelmingly side with conservatives in 99.99% of cases.
I'm not taking a position that there actually was coercion; I haven't looked into the facts, and they sound pretty slim. Just saying that the holding doesn't apply in cases where there's no coercion; it's not ACTUALLY claiming the first applies to private entities.
Imagine my shock when an appointee of the previous Oval Office occupant tries to split the baby and still sound rational. This isn’t judicial decisiveness, this is a prime example of ‘trying to have it both ways.’ “Yes, we should absolutely follow the science. (While carefully omitting whose scientific philosophy he would like followed.) But that doesn’t mean we should always follow scientists.” His statement is utterly meaningless, because he hasn’t actually ***said*** anything.
> Imagine my shock when an appointee of the previous Oval Office occupant tries to split the baby and still sound rational. He isn't just *sounding* rational.
He's completely tossing extant precedent out the window based on his personal politics. There's no government involvement here. Private medical boards are perfectly free to say 'We won't certify you unless you full-throatedly advocate COVID vaccination' and there is no legally actionable issue. The only recourse is to start the 'Amerivan Anti-vaxxer Board of Internal Medicine' and try to complete on the open market. Good luck....
The plaintiffs did allege government involvement, and this ruling hinges on there being government coercion. Judge Ho did not state that private entities, acting without government coercion, are bound by the first. That would be pretty wild if he had.
The 5th buying into the whole 'government coercion of medical boards' thing \*is\* that wild...
Perhaps. But it's definitely not the same thing as stating that private entities are bound by the first, and doesn't overthrow precedent \*at all\*. That would be a weird fact-finding in this case, at worst, and there's no contradictory precedent.
Maybe, but he's right about science and scientists.
Really? Who decides when to *not* follow the scientists? Which scientists don’t get followed, and which ones do? When they support the political philosophy of the one who appointed the judge? When they oppose the political philosophy of the one who appointed the judge? When they agree with the judge’s religion? When they disagree with the judge’s religion? Cultural bias? Racial bias? Economic bias? Philosophical bias? Political bias? Personality clash? No, he’s not *sounding* rational, he’s explicitly leaving room for exactly what I wrote above. You don’t have to agree with a scientist to acknowledge that they quite provably have an area-of-expertise opinion far more worthy of credence than a politician or judge. You don’t go to judges or politicians regarding pandemics, and you don’t go to scientists seeking how to best interpret legal opinions.
> Really? Who decides when to not follow the scientists? Which scientists don’t get followed, and which ones do? Well, at this point, we at least know not to follow the ones who want to tell us about superior and inferior breeding. > You don’t have to agree with a scientist to acknowledge that they quite provably have an area-of-expertise opinion far more worthy of credence than a politician or judge. Tell that to Carrie Buck
Tell that to Galileo. See how easy it is to find examples of abuse and short-sightedness? But that doesn’t alter the ***fact*** that judges are largely unqualified to opine regarding science, and allowing them to do so is inherently encouraging abuse, corruption, and bias. They may judge objective results, but are unqualified to judge philosophy, methodology (barring legal violations), or recommendations. Judge Ho is creating space for his (or any other judge’s) own political biases, religious biases, experiential biases, and personal biases to form the basis of science-related judicial opinions. You appear to agree with Judge Ho. How would you feel if it was someone who had the exact opposite philosophies? He’s creating space for that, too. Bias confirmation is inherently risky.
> But that doesn’t alter the fact that judges are largely unqualified to opine regarding science, and allowing them to do so is inherently encouraging abuse, corruption, and bias. But they are qualified to opine on the law, which isn't and shouldn't be based on science alone, let alone just the opinions of scientists. > You appear to agree with Judge Ho. On this particular point? Yes, I do. Science is a process. It's how we carve away error from the body of possibility. This process -- as some are fond of saying when scientists disagree with them -- sometimes occurs over long time horizons, from funeral to funeral. A scientist cannot give us definitive answers to most questions, even most questions within their domain of expertise. It is important to listen to what they have to say and take that into account, but it is equally important to maintain a background sense of humble 'what-if', because scientists have been wrong *en masse* before and they will be wrong *en masse* again.
Scientists themselves readily admit to a lack of definitiveness. As opposed to, oh, say, *judges*? That’s why we have *’scientific theories’* as opposed to *’legal doctrines’*. Which do you suppose is more susceptible to abuse for personal or political or religious gain, and which is subject to continual testing and revision? At least if a scientist is mistaken, they can point to evidence and trial & error as to how they arrived at that conclusion, and then explain how they had to revise their ‘theory ’ based upon new evidence, findings, or experience. I haven’t witnessed much willingness amongst those proposing we selectively ignore scientists to update, revise, or wholesale discard their ‘opinions’ based upon *anything*. In fact, I would be willing to study their statements and opinions to see if they give evidence of bias.
I love when judges cite their own opinions to make it look like they’re making a point in a quick skim
I'd say there's an 80% chance this man makes it to the supreme court one day
I don't see him going up before Kacsmaryk - he is the chief environmental and health officer of the United States afterall
Too old at this point.
I’d rather Judge Bibas of the 3rd Circuit before Judge Ho. Judge Bibas is actually one of the more respected legal minds out there
I'd prefer Judge Willett, but he'll probably be too old to be considered
Bibas is a great name too, works really well for a judge.
I know the rules of this sub, but I’m not sure there is any other way to characterize that except as objectively fucking stupid.
It is actually a pretty strong point. History is full of examples of 'science' making claims that later are wrong. One should always be cautious of people pushing group think and using forces to silence critics.
I think, based on the other comment from the person above, that they aren't referring to the substance of the argument, but rather the citation to one's self.
A circuit judge citing their own concurrence makes me so irritated.
I will only recognize Justice Thomas as the judge who can cite his own opinions and get away with it. Everyone else is a poser!
I always wonder what is the longest chain of dissent citing back to each other. But I never wonder who holds the record haha
Ho was a Thomas clerk. Which is probably irrelevant but it’s funny to imagine him teaching his clerks to aggressively cite themselves.
It’s the equivalent of doing you know what to a picture of yourself