An appeals court last week ruled in favor of the Association of American Physicians and Surgeons (AAPS), finding that the federal government’s now-defunct Disinformation Governance Board coordinated with several medical boards to stifle doctors’ free speech on social media platforms during the COVID-19 pandemic.

The ruling by the U.S. Court of Appeals for the 5th Circuit sends the case back to the U.S. District Court for the Southern District of Texas to decide whether the medical boards’ actions counted as “state action,” a key question in First Amendment cases. The appellate judges wrote:

“It is indeed plausible that the Board Defendants would act like the social media companies in Missouri v. Biden. They would ‘likely act in [a] predictable’ fashion when told by the Department to suppress dissenting opinions because they would be ‘reluctan[t] to risk the adverse legal or regulatory consequences that could result from a refusal to adhere to the government’s directives.’”

The ruling stems from a lawsuit the AAPS brought in July 2022, alleging the American Board of Internal Medicine, the American Board of Obstetrics & Gynecology and the American Board of Family Medicine, in collaboration with the U.S. Department of Homeland Security (DHS), censored and chilled the speech of physicians who expressed views critical of the government’s stance on issues such as COVID-19, lockdowns, mask mandates, vaccines and abortion.

The AAPS also claimed the medical certification boards, which hold monopolies in their respective specialties, threatened to strip physicians of their licenses for expressing dissenting opinions, making it difficult for them to practice medicine.

In May 2023, the District Court dismissed the case, ruling the AAPS lacked standing to bring its claims against the medical boards and that the claims against DHS were moot due to the suspension and final dissolution of its controversial Disinformation Governance Board in 2022.

But the 5th Circuit said the AAPS properly claimed an injury through the alleged silencing of “willing speakers” who may have been intimidated by the medical boards’ threats and that the AAPS therefore has the right to pursue its First Amendment claims.

The court rejected the idea that AAPS needed to name specific speakers at this early stage, noting that the plaintiffs have “not yet had the benefit of discovery.”

The court also determined the AAPS could link its injuries to the actions of the medical boards, as physicians would likely choose to censor themselves rather than risk losing their certification, which is by most hospitals and insurance networks.

The appeals court found the District Court was wrong to deny AAPS a chance to amend its complaint, emphasizing the importance of allowing changes under the Federal Rules of Civil Procedure.

As for the claims against DHS, the 5th Circuit agreed with the District Court’s dismissal due to DHS’ dissolution of the Disinformation Governance Board.

However, it modified the dismissal to allow AAPS to re-file the case later with better-formed arguments. The judges warned the courts should be cautious when examining “mootness” unless “it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

AAPS, a non-profit organization dedicated to preserving the practice of private medicine, claimed the censorship campaign harmed its ability to hold conferences and publish content that relies on robust debate.

‘The issue of the decade’

AAPS called the 5th Circuit ruling a “landmark victory” and “precedent-setting” in establishing the right to object to censorship in court and in upholding the “constitutional ‘right to hear’” dissenting perspectives on controversial topics.

Ray Flores, senior outside counsel for Children’s Health Defense, told The Defender the ruling marks a significant victory for organizations fighting medical freedom censorship.

“AAPS has been banging on the ‘organizational standing’ door for many years,” Flores said, noting that standing has often been used as a “go-to trap door” by courts to dismiss cases without having to rule on the merits, especially in lawsuits related to the COVID-19 pandemic.

However, Flores also acknowledged that many cases brought early in the pandemic “were actually causes rather than cases,” giving courts a legitimate reason to dismiss them, rather than just an excuse.

The 5th Circuit’s ruling shines a spotlight on the critical issue of censorship, which Flores described as “the issue of the decade,” especially when it curtails information related to medical freedom.

He said he hopes that other appellate courts will demonstrate the same level of sympathy toward this issue as the 5th Circuit did.

‘Scientists don’t always follow the science’

In a partial dissent to the 5th Circuit’s ruling, Judge James C. Ho called AAPS’ allegations “alarming” and argued that the entire case — including the claims against DHS, which he believed were not moot — should be sent back to the lower court for further proceedings.

Ho emphasized the importance of open debate and disagreement in a pluralistic society, stating, “Doctors are ‘susceptible to peer pressure, careerism, ambition, and fear of cancel culture, just like the rest of us.’”

Ho expressed concern about the allegations of a government-led censorship campaign, noting that the issues at the heart of the case, such as COVID-19 policies and abortion, are “far from scientifically settled as Defendants claim” and “should remain the subject of open and rigorous discussion — not self-censorship and cancellation.”

“Yes, we should absolutely follow the science,” he wrote. “But that doesn’t mean we should always follow scientists. Because scientists don’t always follow the science.”

The judge also highlighted the importance of allowing AAPS to amend its complaint against DHS, stating that a defendant “‘cannot automatically moot a case’ — and thereby avoid accountability — ‘simply by ending its unlawful conduct once sued.’”

Ho wrote:

“When government officials voluntarily cease some action in response to litigation, courts are supposed to be skeptical. That’s because an official ‘could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.’”

Disinformation board short-lived, but concerns remain

The creation of the Disinformation Governance Board in April 2022 sparked widespread criticism and concern about the government’s role in policing online speech.

The board was likened by some to the “Ministry of Truth” from George Orwell’s dystopian novel “1984.”

In May 2022, attorneys general in 20 states demanded DHS disband the board. Critics argued that the board’s existence threatened free speech and could lead to the suppression of views disfavored by the Biden administration.

Amid the backlash, the Disinformation Governance Board was put on hold in May 2022, and its executive director, Nina Jankowicz, resigned. Jankowicz claimed that the board itself had been taken over by disinformation, despite its mission to fight it.

However, despite the board’s termination by DHS in August 2022, concerns have persisted about the government’s ongoing efforts to influence content moderation practices on social media platforms.