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).
Basketball legend John Stockton asked Supreme Court Justice Clarence Thomas to help run a screen as he attempted to revive a foiled First Amendment lawsuit involving COVID-19 regulations.
In March, the Gonzaga great, along with various other plaintiffs, filed a federal lawsuit in Stockton’s native Washington against the state’s Attorney General Robert Ferguson and the executive director of the Washington Medical Commission over sanctions targeting “physicians who speak out against the mainstream Covid narrative.”
In May, the U.S. District Court for the Eastern District of Washington denied the motion for a preliminary injunction and dismissed the case. An appeal was lodged with the U.S. Court of Appeals for the Ninth Circuit — where briefing is ongoing. In September, the appellate court denied a request to issue an injunction pending appeal.
In October, Stockton and his co-plaintiffs asked Justice Elena Kagan for an injunction pending appeal — which she blocked without a word on Wednesday. Now, the plaintiffs want to pass the ball to a justice they believe has a better stat line on First Amendment issues.
In a one-page letter dated Friday, Stockton’s attorney Richard Jaffe asked high court clerk Scott Harris to resubmit the injunction request with Thomas — who has largely been protective of free speech doctrine during his tenure, albeit with at least one major exception.
The plaintiffs concede that picking another justice to review the application may not be the cure-all needed in the case.
“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 told Law&Crime in an email. “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.”
Stylized as Stockton v. Ferguson, the original petition explains how the NBA all-time leader in assists and steals 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 filing also identifies the celebrated point guard as “a vocal advocate against the mainstream Covid narrative.”
Seeking an injunction, the litigation aims to avail the rights of physicians who say they have been negatively affected by Washington’s efforts to discipline those who spread COVID-19 misinformation. Specifically, the petition seeks to bar the state from investigating or sanctioning doctors who, in its own terms, share “public views on COVID-19 that diverge from prevailing orthodoxy.”
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.
Around 60 medical professionals have been investigated, prosecuted, and/or sanctioned under the Evergreen State’s prohibitions since they were put into effect in 2021, according to the 20-page lawsuit.
The renewed application, citing precedent on professional speech, argues that “physicians’ public speech does not forfeit its robust First Amendment protection because of a government license.”
“This case presents an opportunity for the Court to reaffirm the robust protection afforded to public speech and provide a much-needed reminder of the power of the First Amendment,” the filing goes on. “Given the national campaign to suppress dissenting medical opinions, uniform guidance from this Court is essential to prevent inconsistent state-level practices that undermine free speech.”
The filing also frames campaigns against COVID-19-skeptical doctors as the result of the media and special interest groups “cajoling medical boards throughout the country to bring more disciplinary cases against physicians for their dissident public speech.”
In asking Thomas for a second look, the plaintiffs’ attorney says the case is ripe for intervention due to a circuit split on “a related professional speech issue” and because the Ninth Circuit “has taken an overly narrow interpretation” of the “professional speech doctrine.”
The doctrine, as it stands, curtails free speech defenses for professionals who violate laws where speech is incidental to their provision of professional advice given directly to a client.
“We think this would be the perfect opportunity for the Supreme Court to remind the circuit courts that the states cannot regulate the public viewpoint speech of physicians just because they have a license, even in pandemic times,” Jaffe told Law&Crime.
In the case, Jaffe has two co-counsels — one of whom is previously well-known and was recently tapped for a cabinet position in the upcoming Trump administration: Robert F. Kennedy Jr.
Kennedy is a New York State-based attorney. He is the son of a former U.S. attorney general and the nephew of the 36th president. Both Kennedy’s father and uncle were assassinated in the 1960s.
In his pro hac vice filing to appear on behalf of the plaintiffs on the opposite coast, the scion of the famous family is vouched for by co-counsel Todd S. Richardson as having a “strong background in First Amendment and censorship issues” relevant to the case “as well knowledge of the substantive issues relating to Covid policy.”
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