Judge Grants Preliminary Injunction Against California Censorship Law

BREAKING: A judge has granted plaintiffs' request for a preliminary injunction against AB 2098, California's gag order on physicians, in the Hoeg v. Newsom lawsuit.

The illegitimate state law would give the Medical Board of California the authority to punish doctors who "disseminate" information about Covid-19 that differs from the "contemporary scientific consensus."

Read the Judge’s Order: https://nclalegal.org/wp-content/uploads/2023/01/Hoeg-v.-Newsom-PI-Decision.pdf

This is a promising sign that their case challenging the constitutionality of AB 2098 will be resolved favorably. The physicians and organizations who filed the lawsuit established their standing to challenge the law and were successful in their motion for a preliminary injunction after meeting each preliminary injunction standard.

I covered this illegitimate "law" when it was first signed by the governor. Watch my video » here «

What is a preliminary injunction?

A preliminary injunction is a pre-trial court order that stops action by the opposing party in a lawsuit.

A party may seek a preliminary injunction if they will suffer irreparable harm—that is, the person will be harmed in ways that a monetary judgment will not be able to repair—while waiting for the final resolution of the lawsuit. So this preliminary injunction will effectively halt the implementation of this unconstitutional law (AB 2098) while the case is being tried.

What four factors determine whether a preliminary injunction should be issued?

To obtain a preliminary injunction, a plaintiff must establish that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. “[I]njunctive relief [i]s an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.

To determine whether plaintiffs are entitled to a preliminary injunction, the court must first determine whether they have standing to challenge AB 2098.

What is standing?

Standing, or locus standi, is capacity of a party to bring suit in court.

“A state's statutes will determine what constitutes standing in that particular state's courts," according to the Legal Information Institute (LLI). These usually center on the requirement that plaintiffs have suffered or will suffer direct injury or harm, and that this harm is redressable.

Legal actions cannot be brought at the federal level solely because an individual or group is dissatisfied with a government action or law. Federal courts are only authorized by the Constitution to resolve actual disputes (see Case or Controversy)."

In Lujan v. Defenders of Wildlife (90-1424), 504 U.S. 555 (1992), the Supreme Court created a three-part test to determine whether a party has standing to sue:

1. The plaintiff must have suffered an "injury in fact," meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent

2. There must be a causal connection between the injury and the conduct brought before the court

3. It must be likely, rather than speculative, that a favorable decision by the court will redress the injury

The plaintiffs in Hoeg v. Newsom proved they have standing thus establishing an “injury-in-fact”

“As the first and second factors weigh in favor of standing, the court concludes that plaintiffs have established an injury-in-fact. Because the injury alleged--a credible threat of prosecution under AB 2098--is “clearly traceable” to AB 2098, and “can be redressed through an injunction enjoining enforcement of that provision,” physician plaintiffs have standing to challenge it.” -Judge William Shubb

Read the Judge’s Order → https://nclalegal.org/wp-content/uploads/2023/01/Hoeg-v.-Newsom-PI-Decision.pdf

After determining that the plaintiffs have standing, the court considers whether they have demonstrated a reasonable chance of success on the merits of the case.

“A statute is unconstitutionally vague when it either “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”

The statute, AB 2098, is a clear violation of the first and fourteenth amendments, and terms like "Contemporary Scientific Consensus," "Contrary to the Standard of Care," and "False Information" are poorly defined, subjective, and unconstitutionally vague.

The judge goes on to state and address common questions such as: “the statute provides no clarity on the term’s meaning, leaving open multiple important questions. For instance, who determines whether a consensus exists to begin with? If a consensus does exist, among whom must the consensus exist (for example practicing physicians, or professional organizations, or medical researchers, or public health officials, or perhaps a combination)? In which geographic area must the consensus exist (California, or the United States, or the world)? What level of agreement constitutes a consensus (perhaps a plurality, or a majority, or a supermajority)? How recently in time must the consensus have been established to be considered “contemporary”? And what source or sources should physicians consult to determine what the consensus is at any given time (perhaps peer-reviewed scientific articles, or clinical guidelines from professional organizations, or public health recommendations)? The statute provides no means of understanding to what “scientific consensus” refers.”

These are important questions, but the bigger picture is that there is a significant difference between consensus and EVIDENCE.

“Defendants argue that while the scientific consensus may sometimes be difficult to define, there is a clear scientific consensus on certain issues--for example, that apples contain sugar, that measles is caused by a virus, or that Down’s syndrome is caused by a chromosomal abnormality.” (Høeg Opp’n at 21; Hoang Opp’n at 21.)

Let’s get serious here. Scientific consensus is NOT the same as scientific evidence.

Science is based on evidence. Evidence is the collection of facts that indicate that a proposition is true. A consensus is an agreement of opinion.

Read my previous substack → “Doctors silenced in California”

Non-Merits Factors

In addition to establishing a likelihood of success on the merits, plaintiffs must establish that they are likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in their favor; and that an injunction is in the public interest. Winter, 555 U.S. at 20. “[B]y establishing a likelihood that [the challenged law] violates the U.S. Constitution, [p]laintiffs have also established that both the public interest and the balance of the equities favor a preliminary injunction.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014). The plaintiffs have thus established the elements necessary to obtain a preliminary injunction. IT IS THEREFORE ORDERED that plaintiffs’ motions for preliminary injunction (Høeg Docket No. 5; Hoang Docket No. 4) be, and the same hereby are, GRANTED.

Let’s give a round of applause for this ruling because it indicates a good chance that their lawsuit challenging the constitutionality of AB 2098 will succeed.

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