In a landmark case, an appellate court judge has ruled that physicians threatened by credentialing boards for speaking out against Covid policies and abortion have sufficient standing in court.
A year after the case was dismissed by a district court, the Association of American Physicians and Surgeons (AAPS) Educational Foundation filed an appeal for the right to sue the American Board of Internal Medicine, the American Board of Obstetrics and Gynecology, the American Board of Family Medicine, and the secretary of the U.S. Department of Homeland Security for “coordinated” attempts to “censor and chill the speech of physicians,” especially those “who spoke critically of positions taken by Dr. Anthony Fauci, lockdowns, mask mandates, Covid vaccination, and abortion.”
A district court judge had ruled AAPS lacked standing and denied AAPS’s attempt to amend the claim. But in a decision filed June 3, the U.S. Court of Appeals for the 5th Circuit reversed the dismissal, and the case has now been remanded to a lower court for discovery and potentially a full trial.
Censorship, Threats
“The AAPS Educational Foundation brought the case because of a series of physicians who were being threatened with loss of their board certification because they had made comments that were either critical of the Covid vaccines or that advocated for early treatment with repurposed drugs,” Jane Orient, AAPS executive director, told me. “Particularly bad were the three defendants of the internal board who were also engaged in threatening physicians who supported the overturning of Roe v. Wade or had anything to say about abortion and its side effects.”
The claimants also identified unlawful actions taken by Homeland Security’s Disinformation Governance Board.
“The DGB was devoted to seeking out and finding ‘disinformation,’ ‘malinformation,’ and, or pressuring people, including those on specialty boards and social media companies, to take action,” Orient said.
The government has since disbanded the board and claims no responsibility for its actions, but AAPS wants the government held accountable. “They can just disperse the function over their agencies or just move and start one up again,” Orient said.
Physicians were specifically threatened based on their public comments, hearing testimonies, press comments, and letters to the editor, Orient said. Doctors were also targeted for prescribing perfectly legal medications that went against the narrative.
Ongoing Attacks
Attacks by these credentialing boards continue, the suit reads, as they label “dissenting views as misinformation, disinformation, and malinformation” and threaten to revoke the certification of “otherwise qualified physicians who express such views.”
A professor of medicine and an academic physician for over three decades, Dr. Peter McCullough moved into independent practice two years ago when he was effectively forced out of academic practice.
One of the first physicians to publish an at-home treatment protocol for Covid-19 in 2020 in the peer-reviewed literature, McCullough played a critical role in developing a worldwide standard and treatment guide for AAPS.
But after ABIM instituted a Covid-19 misinformation policy in 2021, the board retroactively accused McCullough of misinformation based on a March 2021 Texas Senate testimony when he began to publicly question the safety, efficacy, and durability of the vaccine.
“They came out with the policy with no teaching modules, no updates, without equal protection, without any type of due process and they accused me of ‘spreading misinformation,’” McCullough told me. “I then provided documentation and evidence [to the board] supporting all of my points. The board had a closed meeting, and said that nothing I put in my response document had convinced them.” McCullough said he was given 10 days to appeal the process; he did. Since the fall of 2022, his case has been in a very prolonged appeal process.
“I was very productive, I was previously one of the most published persons in my field of cardiorenal medicine, and I have become one of the most published in Covid-19,” McCullough said. “I was released from two jobs at a major medical center officially for no reason.”
‘Viewpoint-Based Censorship‘
The case against the specialty boards is crucial for physicians’ freedom of practice. Most practice in hospitals and are involved in multiple insurance panels requiring credentials from boards like ABIM.
“These boards virtually have a monopoly on physicians to earn a living from their profession,” Orient said. “They may have a medical license and private practice, but insurance companies will not reimburse for their practices, or the hospital will boot them off the staff [if they aren’t credentialed]. So it’s a very powerful disincentive for physicians to go against the narrative.”
Before 2021, censorship of this magnitude was unheard of, Orient said. “Doctors could always freely discuss things. They could always criticize, and they might have someone complain or criticize them. But this is just the specialty board attacking them, no patient complaints. Richard Baron, former head of ABIM, instigated many of the letters that went to physicians,” Orient stated. He had all kinds of conflicts of interests with medical companies getting money from Pfizer and Moderna.” (ABIM did not respond to a request for a comment from Baron.)
“To this day, ABIM maintains this posture that they can essentially convict anyone of spreading misinformation,” McCullough said. “They have used vague terms like consensus-driven statements and give no definitions of ‘information’ versus ‘misinformation.’”
High-profile attorney Andrew Schlafly litigated on behalf of AAPS.
“Viewpoint-based censorship of freedom of speech is one of the most important issues today, and essential to the future of both our country and the ability of patients to obtain quality medical care,” Schlafly told me. “It is vital that we restore freedom of speech and end improper interference with it. Physicians must be able to speak candidly about issues of public concern without fear of retaliation.”
Matters of Public Concern
Years later, government controls on information continue. In an opinion reached just last week, the Supreme Court ruled in favor of the federal government’s right to control Covid information on social media.
Schlafly and AAPS are still confident their case could set a new precedent in medicine.
A win could revert the deferential treatment historically shown to these boards and hospitals in the courts, Orient said. “Maybe some of these boards would understand that they are not considered infallible authorities and they could conceivably be held accountable.”
“More freedom of speech, not less, is essential to a future of quality medical care and a prosperous country,” Schlafly said. “It is very harmful to patients and everyone else when entities retaliate against physicians based on their comments about matters of public concern. All of us should work tirelessly to protect and promote freedom of speech without censorship based on viewpoints.”
