Physicians Who Disseminate Medical Misinformation: Testing the Constitutional Limits of Professional Disciplinary Action

Carl H. Coleman (Seton Hall), Physicians Who Disseminate Medical Misinformation: Testing the Constitutional Limits of Professional Disciplinary Action, First Amend. L. Rev. (forthcoming):

There have been increasing calls in the medical community for revoking the licenses of physicians who disseminate medical misinformation, such as false claims about the safety of vaccines or the effectiveness of nonpharmaceutical measures to prevent COVID-19. While no licensing board has yet imposed penalties on physicians for disseminating medical misinformation, there is evidence that boards are using the threat of disciplinary action to exert pressure on physicians who make public statements that conflict with professional standards of care. This Essay argues that, in most cases, imposing disciplinary penalties on physicians for speech that takes place outside a physician-patient relationship would have dangerous policy implications and would almost certainly be unconstitutional. However, drawing on examples from the regulation of the legal profession, it argues that disciplinary actions would be appropriate under one set of circumstances: if a board can establish that a physician has disseminated information that she knows to be false or with reckless disregard as to whether it is true—i.e., with the “actual malice” standard applied to defamation cases brought by public officials and public figures. The Essay considers the implications of this standard for different factual scenarios.