‘Very unusual’: Thomas overrides Kagan in COVID-related First Amendment case where RFK Jr. serves as cocounsel, sends dispute to full court

Elena Kagan, on the left; Robert F. Kennedy Jr., in the center; Clarence Thomas, on the right.

Left: Elena Kagan (Mark Wilson/Getty Images). Center: Robert F. Kennedy Jr. hosts a fireside chat (John Lamparski/Sipa USA/Sipa via AP Images). Right: Clarence Thomas (YouTube/Library of Congress).

Supreme Court Justice Clarence Thomas on Wednesday overrode Justice Elena Kagan in a high-profile First Amendment case involving COVID-19 regulations, basketball legend John Stockton, and putative Donald Trump administration cabinet nominee Robert F. Kennedy, Jr.

Stockton is the lead plaintiff in the fast-paced litigation that aims to avail the free speech rights of physicians who, in the original petition’s words, “speak out against the mainstream Covid narrative.”

The lawsuit was filed in the spring and subsequently shot down at various stages in the federal system. Using a different procedural vehicle allowed the plaintiffs to quickly file an application for an injunction pending appeal with Kagan in late October. The Barack Obama-appointed jurist declined to do so — without a word — in late November.

Now, an admittedly “long shot” effort to convince Thomas to overrule his colleague on the bench has panned out and managed to keep the case alive, for now at least, with the nation’s high court.

Stockton’s attorney remarked on the dime-turning change of fortune.

“I think it is very unusual for a renewed application to be granted and to be set for conference,” Richard Jaffe told Law&Crime. “I’d like to think that Justice Thomas understands what a fundamental issue this is and that the Supreme Court needs to tell the country whether there are any limits to medical boards controlling physicians expressing their dissent to government health policies and its view of science.”

In March, the Gonzaga great, and others, filed a federal lawsuit against Washington Attorney General Robert Ferguson and the executive director of the Washington Medical Commission over sanctions targeting doctors for their public comments about the pandemic.

Stockton, the NBA all-time leader in assists and steals and two-time Hall of Famer, is presumably the lead plaintiff due to his stature and favored son status in the Evergreen State. The lawsuit notes that despite “an annual work-related relocation” — Stockton played 19 seasons for the Utah Jazz and reached the playoffs every year — he has lived his entire life in Spokane. He retired from the NBA in 2003.

Nowadays, Stockton hosts a podcast where he opines on “a wide variety of subjects, including Covid, health policy, the rights of individuals to make their own health and medical decisions, and sports,” the lawsuit says. The filing also identifies the celebrated point guard as “a vocal advocate against the mainstream Covid narrative.”

One of the physician plaintiffs, retired ophthalmologist Richard Eggleston, was investigated for spreading COVID-19 misinformation over a series of conservative newspaper columns he wrote. He was charged with professional misconduct in August 2022.

“Eggleston opposes Covid mandates, believes, and opines that the risk benefit profile is unfavorable for some subsets of the population,” the lawsuit reads. “He advocated in favor of off-label treatments such as Ivermectin, and against the lockdowns. In his columns, he often cites government statistics and given his take or opinions on the meaning of those statistics. His opinions are at odds with what is published in the mainstream media.”

Another plaintiff, retired physician Thomas T. Siler M.D., “also questioned the Covid narrative core principle” in an online discussion forum, according to the lawsuit. He was similarly investigated by the commission and charged with professional misconduct in 2023.

Other plaintiffs, who are not currently subject to formal discipline by the state, argue their speech is being chilled by Washington’s prohibitions on COVID-19 misinformation — a legal concept where individuals or entities refrain from engaging in otherwise protected speech for fear of upsetting the government and being punished.

Around 60 medical professionals have been investigated, prosecuted, and/or sanctioned under those prohibitions since they were put into effect in 2021, according to the 20-page lawsuit filed in the U.S. District Court for the Eastern District of Washington.

“These cases are at least in part based on what in First Amendment parlance is called pure or soapbox speech, meaning written or verbal communications to the public,” the filing reads. “Going back seventy-years, every judge and Supreme Court justice who has written on professional soapbox speech has stated that it is fully protected by the First Amendment and/or said that it cannot be the subject of government regulation or restriction.”

The lawsuit seeks a declaratory judgment from the court that the commission’s actions in regard to COVID-19 misinformation are a violation of the First Amendment and that all the plaintiffs have a constitutional “right to express their views and criticisms of the mainstream Covid narrative to the public.”

“[A]ll Washington residents have the First Amendment right to hear the views of the three individually named physician plaintiffs, as well as any Washington licensed physician, even if the viewpoint is not consistent the with public health authorities’ and the Commission’s views on the safety and efficacy of the Covid shots, the use of off-label treatments for Covid and the efficacy of masking, or other Covid related topics,” the lawsuit argues.

The lawsuit also seeks a preliminary and permanent injunction barring the commission from investigating or sanctioning doctors who publicly pass on COVID-19 misinformation, and attorneys’ fees.

In May, the district court denied the motion for a preliminary injunction and dismissed the case. An appeal of the underlying case was lodged with the U.S. Court of Appeals for the Ninth Circuit — where briefing is ongoing. In September, the Ninth Circuit denied a separate-but-related request to issue an injunction pending appeal.

That denial allowed the current full-court press before the justices.

After Kagan’s denial, the plaintiffs moved on to a justice they believe has a better track record on First Amendment issues.

In turn, Jaffe asked clerk Scott Harris to resubmit the request with Thomas — who has largely been protective of free speech doctrine during his tenure on the court, with at least one major exception.

The attorney said resubmitting the application was a gamble.

“It is a long shot, but we think the issue is important enough and has national consequences such that we should leave no stone unturned,” Jaffe previously told Law&Crime. “Justice Thomas has a long history of protecting First Amendment rights. He may well decide that he wants the 9th Circuit to weigh in first and reject the renewed application. If so, we go back to the 9th Circuit on the appeal district court’s denial of our preliminary injunction and dismissal of the case.”

Thomas, in fact, decided the plaintiffs had an issue or issues worth presenting to the entirety of his fellow justices.

Now, the dispute is set for a conference slated to occur on Jan. 10, 2025. Four of the nine justice must vote to accept a case for the dispute to then be set for oral argument.

The case is stylized as Stockton v. Ferguson.

‘Very unusual’: Thomas overrides Kagan in COVID-related First Amendment case where RFK Jr. serves as cocounsel, sends dispute to full court

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‘Very unusual’: Thomas overrides Kagan in COVID-related First Amendment case where RFK Jr. serves as cocounsel, sends dispute to full court

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