[00:00:01] Speaker 03:
Morning, Your Honor.

[00:00:03] Speaker 03:
Richard Jaffe for the appellants.

[00:00:06] Speaker 03:
May it please the court.

[00:00:08] Speaker 03:
First, I want to thank the court and the court staff for the accommodation.

[00:00:14] Speaker 03:
I greatly appreciate it and the efficiency.

[00:00:19] Speaker 03:
May it please the court.

[00:00:23] Speaker 03:
With the court's indulgence, I'd like to start with the First Amendment issue because it's core and because all of the threshold

[00:00:31] Speaker 03:
issues implicate in some fashion the first amendment either by way of a modification of the standard an exception or whether the threshold doctrine applies and then i'm going to only try to make six points on the first amendment issue and then we'll move on to the threshold issues council as you do that i would appreciate your addressing the effect of the younger abstention because of course that

[00:01:00] Speaker 02:
has a huge role to play in all of these, including the First Amendment claims.

[00:01:04] Speaker 02:
So if you could weave that into your discussion, I would appreciate it.

[00:01:09] Speaker 03:
OK.

[00:01:10] Speaker 03:
Like I said, I'm going to discuss younger abstention first.

[00:01:14] Speaker 03:
OK.

[00:01:16] Speaker 03:
I think that the problem we have with younger abstention on the most general level, younger deals with one of the cases.

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Most of these cases, younger, you have an individual challenging a criminal proceeding, a board proceeding, on an individual case.

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Younger, and abstention in general, by the terms, is not really geared to stopping an enforcement, a widespread enforcement practice.

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In this case, you have a national policy.

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of the Federation of State Medical Boards, the target of which, the specific target of which is to suppress speech.

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That's the target.

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That policy was adopted by the Washington Medical Commission targeting speech.

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By the way,

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The state of California also considered the same policy statement, but they decided in terms of AB 2098 that they could not reach the public speech of positions because of pickup and NEPLA.

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So I don't think there's a case.

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I'm not aware of any case in U.S.

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jurisprudence, which is applied younger, where you have a systematic

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enforcement practice against a class of people.

[00:02:53] Speaker 01:
One such case was Younger.

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Younger itself was a First Amendment case.

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There's lots of cases that have applied Younger in the face of First Amendment objections.

[00:03:05] Speaker 01:
So I think

[00:03:06] Speaker 01:
The issue would be for two of your clients, Dr. Eggleston and Dr. Seiler, who are in the middle of ongoing proceedings, why would Younger not bar the claims they have here?

[00:03:19] Speaker 01:
There are other plaintiffs here, and we can get to those, but you have two who are in the middle of the proceedings.

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That's correct.

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And of course, the other three are not in the middle of the proceedings.

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And indeed, two of them, the listeners, would not be able to be participating in the proceedings.

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And then Moynihan,

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is not directly, is not under investigation right now.

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So with respect to those two.

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So we can chop this up a little bit.

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Do you agree that Dr. Eggelson and Dr. Sider are barred because of Younger?

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No.

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And the reason for that is, okay.

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And the reason for that is, first of all, the state or at least the lower court did not identify a proper state interest in that.

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There is no, you can't have a state interest, which is unconstitutional.

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The notion that a medical board can target the public speech has been expressly rejected by this court in Tingley, affirmed by

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uh, by pickup and, and tingly.

[00:04:25] Speaker 02:
So council, council with respect, uh, let's go back to, to younger, um, if you talk to the state medical board, it is obviously an authorized agency at this case, the state of Washington to contact a physician where they apologize and so on a different issue.

[00:04:44] Speaker 02:
But, but younger provides that as long as you've got a state proceeding going on and the defendants in this case have the right to

[00:04:52] Speaker 02:
defend themselves and uphold their constitutional rights, and among the other three requirements, that the federal court won't get involved.

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You're asking us to

[00:05:05] Speaker 02:
Just say, like, you know, we don't care what this state medical board says, we're going to get behind this and see if there's a First Amendment right.

[00:05:12] Speaker 02:
And as my colleague pointed out, Younger itself involved a First Amendment right, contrary to this, what I understood to be your suggestion that that couldn't happen.

[00:05:21] Speaker 02:
That happens all the time.

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Well, no, I think what I said is, or went to say is that Younger

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like many of these cases involved, one-off cases where a doctor sues and raises and goes to court, and it was a lot of things.

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There were several, but there's never been, Younger was not a case where there was a systematic enforcement program in direct violation of the First Amendment.

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I don't think Younger stands for that proposition, certainly not in light of

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a pickup and tingling.

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But, counsel, with respect, you're just, I mean, the whole point of Younger is there's a federal procedure here.

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We're a federal court, you have state courts, and we don't interfere as a matter of policy with state courts or state agencies as long as they meet the Younger standards.

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With respect to Dr. Egelson and Siler, I don't see what exception you're looking at, even if you're absolutely right that the underlying

[00:06:20] Speaker 02:
action of the board might be unconstitutional, you can vindicate that in state court.

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They have the opportunity to make that claim, but I don't see how we get involved in light of Younger with respect to Eggelson and Seiler.

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What am I missing?

[00:06:36] Speaker 03:
Well, I think one of the things you're missing is that the state has, early lower court, misidentified the interest.

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There's no, the state's interest is medical practice, the practice of medicine.

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This case, at least if you take your authority and pick up and tingly, it doesn't involve medical practice.

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It involves public speech.

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And that's just beyond, it's unconstitutional and also it's even ultra virus.

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So the notion that you could have a doctrine of comedy, even federalism,

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and use that to stop the medical board from violating the First Amendment rights and going and acting ultra virus.

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It seems to me that's beyond.

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The question is why would you apply younger in a case like that?

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I mean, let me give you an example because this seems to be the heart of the case.

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Judge Fletcher six months ago made this decision about criminalizing conduct.

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for recommending abortions out of state.

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You just did that.

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Suppose the medical board in that state has a policy that it's not only criminal, but it's also a violation of, say, it's moral turpitude to make that recommendation.

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And they go after four, six, or 10 doctors for that.

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Is there any chance

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that this court would apply abstention to the facts where a medical board is making it a board-disciplineable offense to essentially recommend out-of-state abortions.

[00:08:22] Speaker 03:
I just don't think so because, again, it's the programmatic enforcement practice which violates the First Amendment.

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My argument would be that that's just beyond the scope of anything a younger

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contemplates because it's not against one person.

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It's a program.

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And indeed, younger Dombraski, I think, is really the focal point and the central core of the argument.

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I think that Dombraski stands for the proposition that when you have a systematic effort to deny speech, that's not younger.

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And younger itself recognized that case.

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And I think

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We are squarely within Gumbroski.

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Matter of fact, we have a better case, because in that case, it was all pretextual.

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They were stopping the public speech under a couple statutes, neutral on the space.

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But here, you actually have a situation where the state is acknowledging direct suppression of speech, which this court has heretofore held is

[00:09:34] Speaker 03:
robustly protected, and it seems to me the other point is how can you robustly protect speech on a systematic basis if you're just going to defer to comedy and federalism because of a doctrine that basically applies to one doctor trying to go into federal court to stop one proceeding.

[00:09:52] Speaker 03:
That's the best I have, Judge.

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This is where we stand in fullness.

[00:09:57] Speaker 02:
Okay, and that's your position with respect to two of your doctors.

[00:10:04] Speaker 02:
What about Moynihan?

[00:10:06] Speaker 03:
Moynihan doesn't currently have a proceeding against him.

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He clearly is not impacted by Younger.

[00:10:15] Speaker 03:
There's no proceeding against him.

[00:10:16] Speaker 03:
He was investigated before.

[00:10:18] Speaker 02:
All right.

[00:10:19] Speaker 02:
Is his claim ripe?

[00:10:25] Speaker 03:
Well, if we take a look at prudential rightness, the bottom line is two Supreme Courts and this court in Twitter basically

[00:10:33] Speaker 03:
Invited someone to get rid of prudential prudential right brightness here.

[00:10:39] Speaker 01:
We are we don't know that we can I don't know that we can just do that We've got the Supreme Court casting down on it.

[00:10:47] Speaker 01:
We've got our own cases casting down on it, but we're a three-judge panel so I Think we're we're have to deal with prudential rightness on the terms that it exists okay, you could preserve that argument as you have for further review, but at least here I

[00:11:01] Speaker 01:
I don't know how we could just do away with it.

[00:11:05] Speaker 03:
Well, of course, the panel in Twitter says that their only reason they didn't do it in that panel is because they didn't ask.

[00:11:13] Speaker 03:
So I thought, we're asking.

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So if you can't do it, you can't do it.

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But the bottom line and rightness is it only requires legal questions and changing your position.

[00:11:29] Speaker 03:
Moynihan testified in the complaint and in his declaration that he's not speaking until this issue is resolved.

[00:11:37] Speaker 03:
That's enough.

[00:11:38] Speaker 02:
Can I follow up with that?

[00:11:40] Speaker 02:
Yes, sir.

[00:11:41] Speaker 02:
As you know, your opponent takes the position that Moynihan's right to speak was injured by his own self-censorship.

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He had the right to continue to speak.

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He just decided he wasn't going to do it to take a chance.

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What's your response to that?

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What role does that play?

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the sine qua non of chilling.

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That's the point.

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You're self-censoring because of the board's policy.

[00:12:06] Speaker 03:
That establishes standing.

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That establishes rightness.

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I mean, that's all we have to show.

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So that's an admission that the case is constitutionally and prudentially right.

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That's the injury.

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That's the concrete plan.

[00:12:22] Speaker 02:
What about Stockton?

[00:12:24] Speaker 02:
He's a little different in this case, is he not?

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Why does he have a claim?

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Well, Stockton and CHD are asserting their rights to hear the information.

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And that involves a different analysis.

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And that would be the Virginia Pharmacy case, Mandel, and of course, Murthy.

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So I think we have to switch gears on that.

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And one of the things that I think is important, one thing I want to stress is that, and I'm going to have to move along because I'm running out of time.

[00:13:00] Speaker 03:
I think what we hope to establish in this case is what you did in pickup to speech by the hearing of speech.

[00:13:11] Speaker 03:
That's that I think is an important point which way to do and that's why Stockton has he has listeners standing.

[00:13:17] Speaker 03:
under Virginia, the pharmacy case, he has listener standing under Mandel because of his connection to Eggleston.

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And of course Moynihan has listener standing and CHD.

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That's the parallel for Mandel.

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So under those regards, I think in terms of the standing analysis, I think they have the listener standing.

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And I think the bottom line is what I

[00:13:45] Speaker 03:
quite can't figure out is that this court and pickup has been the clarion call for physicians public speech for the country.

[00:13:55] Speaker 03:
We have a disagreement.

[00:13:56] Speaker 03:
There's a disagreement with NIFLA as to how far NIFLA applies, but that speech is scalpel.

[00:14:03] Speaker 03:
There's no doubt

[00:14:05] Speaker 03:
that in terms of public speech, it's highly protected.

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And because it's highly protected, strict scrutiny applies, and the record in this case does not support the defendants' burden of proof in strict scrutiny.

[00:14:21] Speaker 03:
So the reason I wanted to start with the First Amendment is if you take a look at the law, which is robust protection, strict scrutiny, failure to satisfy strict scrutiny, L. Rodney Burns,

[00:14:35] Speaker 03:
which is a reputable injury, that is the context by which you have to look at all these threshold issues, including younger extension and the notion that you could have all of these characteristics, right?

[00:14:49] Speaker 03:
A clear by if we're right and if you don't if we're if we're wrong about pick up a rock but the clear violation of First Amendment with irreparable injury and and and according to Justice Jackson every person has to decide for themselves then it just seems to me none of these Threshold issues make any sense council.

[00:15:09] Speaker 01:
So we've let you you've taken up your time We're gonna put two minutes on the clock for rebuttal so you have a chance to respond and we'll hear from the state Thank you

[00:15:26] Speaker 00:
Good morning, and may it please the court, I'm Andrew Hughes on behalf of appellees, Kyle Karen and Bob Ferguson.

[00:15:32] Speaker 00:
And just by way of housekeeping, I think under FRAP 43C, AG Nick Brown should now be- Move the microphone a little closer.

[00:15:40] Speaker 00:
Of course.

[00:15:41] Speaker 00:
Thanks.

[00:15:41] Speaker 00:
I think by way of FRAP 43C, AG Nick Brown should actually now be substituted in as the appellee alongside Kyle Karen.

[00:15:50] Speaker 00:
So, Your Honors, this case presents a simple and straightforward question.

[00:15:56] Speaker 00:
Can a person bring a suit in federal court to halt an ongoing state disciplinary proceeding?

[00:16:02] Speaker 00:
The answer is no.

[00:16:04] Speaker 00:
This court and the U.S.

[00:16:05] Speaker 00:
Supreme Court have answered this question many times in Younger, in Allsager, in Buckwalter, in FTC versus Standard Oil, and on and on.

[00:16:15] Speaker 00:
Plaintiff's efforts to terminate Washington Medical Commission proceedings falls into the heartland of younger abstention.

[00:16:22] Speaker 01:
So does this cover Drs.

[00:16:24] Speaker 01:
Eggleston and Seiler, or do you think it extends to the other plaintiffs?

[00:16:28] Speaker 00:
So it covers certainly Dr. Eggleston and Seiler, and certainly as well the other plaintiffs to the extent that their claim rests in any measure on the ongoing proceedings against Drs.

[00:16:38] Speaker 00:
Eggleston and Seiler, which is a significant component of their claim.

[00:16:43] Speaker 00:
So as we detailed in our brief, Your Honor, there are multiple threshold defects to plaintiff's claim.

[00:16:48] Speaker 00:
But I do want to start with Younger.

[00:16:50] Speaker 00:
And then based on the panel's question, it sounds like my time would be best used talking about Dr. Moynihan after that.

[00:16:56] Speaker 00:
So to start, Younger in a nutshell holds that federal courts are required to abstain from hearing claims for relief from state enforcement proceedings.

[00:17:05] Speaker 00:
As Your Honors well know,

[00:17:06] Speaker 00:
There's four factors the courts look at in determining whether Younger applies.

[00:17:11] Speaker 00:
But we don't need to spend too much time on those factors, really for three reasons.

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The first is that this court already concluded in Allsager and in the Buckwalter versus Nevada Board of Medical Examiners case that state medical board proceedings are subject to Younger.

[00:17:24] Speaker 00:
Two, plaintiffs conceded the four Younger factors in the district court below, and three,

[00:17:31] Speaker 00:
Dr. Eggleston already lost on younger grounds when he challenged this very disciplinary proceeding in the Wilkinson case.

[00:17:38] Speaker 00:
He chose not to appeal that determination, and he has collaterally stopped from re-raising that argument in this lawsuit.

[00:17:45] Speaker 00:
That's the end of the line for Dr. Eggleston.

[00:17:47] Speaker 00:
Did you allege that in your pleadings that he was stopped?

[00:17:51] Speaker 00:
We did, Your Honor.

[00:17:53] Speaker 00:
I don't have the pin sight on you, but I could find that if Your Honor has any questions about that.

[00:17:56] Speaker 00:
Right.

[00:17:57] Speaker 00:
So nonetheless, Clara Estoppel aside,

[00:17:59] Speaker 00:
The four prongs are all clearly met here.

[00:18:02] Speaker 00:
Doctors Engelson and Seiler's disciplinary proceedings are ongoing.

[00:18:06] Speaker 00:
Medical board proceedings are the type of quasi-criminal enforcement proceedings that come under Younger.

[00:18:11] Speaker 00:
Three, regulating physician conduct and licensing in Washington is undoubtedly an important state interest.

[00:18:16] Speaker 00:
And I'll get right back to this point in a moment.

[00:18:18] Speaker 00:
But four, plaintiffs have ample opportunities to raise their federal claims, if necessary, in Washington Supreme Court.

[00:18:25] Speaker 00:
So I think Mr. Jaffe just argued that third point and said there was no state interest here.

[00:18:30] Speaker 00:
But I point your honors to, for example, Baffert, in which this court held, quote, the importance of the interest is measured by considering its significance broadly, rather than by focusing on the state's interest in the resolution of an individual case.

[00:18:42] Speaker 00:
That's 322 F.

[00:18:44] Speaker 00:
3rd, 613 and 618.

[00:18:46] Speaker 00:
So the question is not whether the state has a significant interest in these particular enforcement proceedings, though it does.

[00:18:53] Speaker 00:
This is really a life or death matter.

[00:18:55] Speaker 00:
But the question is whether the state has a significant interest in medical discipline and licensing generally.

[00:19:03] Speaker 00:
And in Buckwalter, this court said this was, quote, self-evident.

[00:19:07] Speaker 00:
Plaintiffs do make some effort to avoid younger by invoking the bad faith exception.

[00:19:13] Speaker 00:
But they do not, and they cannot, allege anything even remotely akin to the pervasive harassing prosecutions at issue in cases like Dombrowski, where the Louisiana law enforcement sought to shut down and harass the NAACP, or Crom, in which there were over 100 prosecutions bought

[00:19:32] Speaker 00:
brought, things were seized in violation of court orders by law enforcement.

[00:19:36] Speaker 00:
There were defamatory statements made.

[00:19:37] Speaker 00:
There's nothing like that in this record.

[00:19:40] Speaker 00:
Plaintiffs offer nothing that plausibly or even remotely demonstrates bad faith on the part of either former AG Ferguson, current AG Brown, the AG's office, or WMC Director Kyle Karonen, who was not even mentioned in plaintiff's briefing.

[00:19:58] Speaker 00:
Simply put, Your Honors,

[00:20:00] Speaker 00:
If younger abstention doesn't apply here, it's hard to see where it would apply at all.

[00:20:07] Speaker 00:
This court need go no further with respect to anything involving the ongoing WMC proceedings.

[00:20:13] Speaker 00:
So moving then to Dr. Moynihan.

[00:20:16] Speaker 00:
Dr. Moynihan's claims really run into four separate issues.

[00:20:21] Speaker 00:
The first is, it's not clear what agency action he's really actually trying to challenge here.

[00:20:27] Speaker 00:
So there's no basis from the challenge to proceedings against Dr. Eggelson and Seiler.

[00:20:31] Speaker 00:
Quite aside from the fact that Younger would bar such a challenge, he's clearly a bystander to that dispute.

[00:20:36] Speaker 00:
So what then is he challenging?

[00:20:39] Speaker 00:
What is the final agency action that gives him a right claim that he is asking the district court or this court to enjoin?

[00:20:46] Speaker 00:
Well, I think I just heard Dr. Jaffee say, or Dr. Jaffee, I promoted you.

[00:20:51] Speaker 00:
I think I just heard Mr. Jaffee say that it's the COVID misinformation statement.

[00:20:56] Speaker 00:
that the Washington Medical Commission adopted.

[00:20:59] Speaker 00:
But that can't be it, because as the District Court noted in Wilkinson, that is merely a statement of position, and quote, does not contain any enforcement mechanisms, nor does it describe any policies or implementation procedures regarding a law or regulation.

[00:21:15] Speaker 00:
And I'll note again, there's no appeal there.

[00:21:19] Speaker 00:
That is collateral estoppel with respect to at least Mr. Eggleston.

[00:21:24] Speaker 00:
The Washington Medical Commission acts, in the disciplinary realm, acts through individual disciplinary proceedings, like the ones currently pending before Dr. Eggelson and Seiler.

[00:21:35] Speaker 00:
There is no such proceeding against Dr. Moynihan.

[00:21:39] Speaker 00:
So again, I ask, what is he challenging?

[00:21:41] Speaker 01:
Does he not have the ability to challenge

[00:21:45] Speaker 01:
the anticipated application of the commission's rules, which as to someone who speaks about these topics, that would seem to be what he's arguing.

[00:21:57] Speaker 01:
Is that any different than somebody who is challenging just a statute that they say, well, I'm worried this will be enforced against me as a speaker, and so I want to have a pre-enforcement challenge?

[00:22:08] Speaker 00:
Yes, it is different for a couple of reasons.

[00:22:10] Speaker 00:
One is that he doesn't challenge, notwithstanding his over-breath challenge, which is meritless for the reasons that we describe in our briefing, and I can go into it in more depth if John is interested, he doesn't just claim that he is trying to violate some statute or some policy that prohibits COVID misinformation.

[00:22:28] Speaker 00:
He claims that the way that the WMC is enforcing its rules, is doing its remit, he disagrees with

[00:22:37] Speaker 00:
But this is the programmatic challenge.

[00:22:39] Speaker 00:
In fact, Mr. Jaffe used the word programmatic.

[00:22:41] Speaker 00:
This is the programmatic challenge that the Supreme Court said in Lujan did not give rise to an Article 3 injury, did not give rise to a right challenge.

[00:22:53] Speaker 01:
I mean, but why can he not ask for a declaratory judgment that if he says, if he opines on topics A, B, or C, it would violate the First Amendment for the commission to discipline him?

[00:23:06] Speaker 00:
Well, primarily because that's much too broad, Your Honor.

[00:23:09] Speaker 00:
So he doesn't say, with any specificity, what are the specific things he wants to say.

[00:23:14] Speaker 00:
And plaintiffs really make an effort to argue this case at the highest possible level of generality and say,

[00:23:21] Speaker 00:
any statement against the mainstream narrative is now subject to discipline by the Washington Medical Commission.

[00:23:27] Speaker 00:
But that's just not true.

[00:23:28] Speaker 00:
If you look at the actual facts of this case, there are certain discrete verifiably false statements that Drs.

[00:23:35] Speaker 00:
Eggleston and Seiler made that is the subject of the statement of charges against them.

[00:23:39] Speaker 00:
So for example,

[00:23:40] Speaker 00:
The statement that mRNA vaccines change someone's DNA, that's a false statement.

[00:23:45] Speaker 00:
The statement that the inventor of PCR tests said they weren't reliable, gave 95% false positives, that's a false statement.

[00:23:53] Speaker 00:
The inventor of the PCR test died before COVID was even a thing.

[00:23:58] Speaker 00:
And if you look at the statements that Dr. Eggelson highlights in his declaration, for example, he says he wants to talk about how different countries have different vaccine policies, how mask mandates are not good policy.

[00:24:11] Speaker 00:
He's free to do that.

[00:24:12] Speaker 00:
That is, we would agree, soapbox speech.

[00:24:15] Speaker 00:
As long as he's not making verifiable, as long as Dr. Moynihan is not making verifiably false statements that

[00:24:26] Speaker 00:
are in danger of the public and that arguably meet the definition of unprofessional conduct.

[00:24:34] Speaker 01:
This now seems like you're talking about the merits of the First Amendment challenge.

[00:24:40] Speaker 01:
And really, I guess the district court did reach those, but the district court also seemed to say that even Dr. Moynihan's claim was unripe.

[00:24:49] Speaker 00:
So no, this goes to not the merits, but it goes to Twitter.

[00:24:56] Speaker 00:
whether he's incredibly alleged of chilling.

[00:25:00] Speaker 00:
He has to allege, not generally, that I want to talk about COVID, but I can't.

[00:25:04] Speaker 00:
Because there's nothing, WMC is not in any way preventing people from talking about COVID, from saying controversial things about COVID.

[00:25:11] Speaker 00:
He has to allege specific factual statements that he would like to make that are contrary to, that are essentially identical to the statements that

[00:25:22] Speaker 00:
that are being charged in the cases against Dr. Edelson and Sire.

[00:25:26] Speaker 00:
But I'd like to move on to even a different bar here, which is that Dr. Moynihan was investigated by the Washington Medical Commission.

[00:25:35] Speaker 00:
And the Washington Medical Commission concluded that there was no basis to move forward with charges against him.

[00:25:41] Speaker 00:
So this notion

[00:25:42] Speaker 00:
that his speech is somehow chilled because of a fear of investigation or prosecution when the WMC declined to prosecute him simply beggars belief.

[00:25:52] Speaker 00:
And I'll note here, because I think it's really important, that the WMC responds to complaints.

[00:25:58] Speaker 00:
WMC does not go out and look for doctors to prosecute.

[00:26:03] Speaker 00:
So he's yet again further removed from the situation of Susan B. Anthony and Dry House where he has reasonable fear to allege government prosecution because here any prosecution would involve the independent action of a third party over whom the state of Washington, the medical commission, has no control.

[00:26:22] Speaker 00:
And that is some member of the public who would make a complaint against Dr. Moynihan.

[00:26:29] Speaker 00:
One other issue, one other ripeness issue that Dr. Moynihan's claim runs into is the very same ripeness issue that plagues doctors Eggleston and Seiler.

[00:26:41] Speaker 00:
And that's prudential ripeness.

[00:26:42] Speaker 00:
And this fact pattern is really a dime a dozen in the ripeness case law.

[00:26:46] Speaker 00:
Because over and over again, courts have dismissed suits like this

[00:26:51] Speaker 00:
trying to halt ongoing enforcement proceedings or investigations on prudential rightness grounds.

[00:26:57] Speaker 00:
And the reason they do so is because, as this court put it, an association of American medical colleges, quoting the Supreme Court, where we have no idea whether or when a sanction will be ordered, the issue is not fit for adjudication.

[00:27:12] Speaker 00:
And these uncertainties, this court said, quote, render plaintiff's action unfit for judicial resolution at this time.

[00:27:19] Speaker 00:
Here, WMC has obviously not made a finding that anyone engaged in unprofessional conduct.

[00:27:26] Speaker 00:
All it has done is filed a complaint.

[00:27:27] Speaker 02:
Let me just go back for a second.

[00:27:29] Speaker 02:
You said that Moynihan was investigated.

[00:27:32] Speaker 02:
Is that in the record and if so, where, please?

[00:27:34] Speaker 00:
It is.

[00:27:35] Speaker 00:
It is in the Record Act.

[00:27:36] Speaker 00:
Give me just a moment, Your Honor.

[00:27:37] Speaker 00:
I think ER 92 and ER 128.

[00:27:41] Speaker 00:
Was this about something about an article he wrote or was this like a patient issue?

[00:27:46] Speaker 01:
It was a patient issue, Your Honor.

[00:27:47] Speaker 01:
Okay, so this seems a little different because the patient issues are

[00:27:51] Speaker 01:
And his argument, as I understand it, is, yeah, I can't lie to a patient.

[00:27:56] Speaker 01:
That's a different question.

[00:27:56] Speaker 01:
But I can put out op-ed that has my views on COVID and the vaccines.

[00:28:04] Speaker 01:
And even if the state thinks these are dangerous ideas, I still have the First Amendment right to do that.

[00:28:09] Speaker 00:
So to the extent there is a distinction, Your Honor, it inures to the state's benefit.

[00:28:12] Speaker 00:
Because as Mr. Jaffe just said, the case for professional discipline is even stronger in the patient treatment context.

[00:28:20] Speaker 00:
So if the Washington Medical Commission in the patient treatment context said that Dr. Moynihan's views did not warrant the filing of a statement of charges here, then a fortiori, any argument that he reasonably fears prosecution based on his views on COVID from outside the patient context are even weaker.

[00:28:40] Speaker 01:
Well, so I mean, I'm looking at his declaration, which I guess was filed in connection with the request for a preliminary injunction.

[00:28:46] Speaker 01:
And one thing he says is that

[00:28:48] Speaker 01:
that he thinks that COVID boosters are unnecessary and even potentially dangerous for healthy adults and especially children.

[00:28:55] Speaker 01:
So is that the kind of statement that the commission could investigate him for?

[00:28:57] Speaker 00:
It depends on what the statement is.

[00:29:00] Speaker 00:
At that level of specificity, I can't imagine so.

[00:29:03] Speaker 00:
If you look at the statement that Dr. Eggelson was

[00:29:07] Speaker 00:
investigated for, is under investigation for, it's that COVID vaccines have killed thousands of people.

[00:29:14] Speaker 00:
I think at the commission, he said it was 200,000 people.

[00:29:17] Speaker 00:
That's a false and dangerous statement.

[00:29:20] Speaker 00:
The statement, if Dr. Moynihan wanted to say, there is some evidence linking COVID vaccines with an elevated risk of myocarditis.

[00:29:31] Speaker 00:
And there is support for that.

[00:29:32] Speaker 00:
That's a statement of opinion.

[00:29:35] Speaker 00:
That's a statement that is fairly supported by at least some evidence.

[00:29:38] Speaker 00:
So that's not the sort of statement that would come under the guise of unprofessional conduct.

[00:29:43] Speaker 02:
But I gather your position is that Moynihan has to be specific, refer to some specific ruling by or rule of the commission that

[00:29:56] Speaker 02:
That he can say this is wrong and I'm going to comment about it.

[00:30:00] Speaker 00:
Is that correct can be just general Yes, and and the end is that he has to point to some this is where I thought your question was going he has to point to some action of the Washington Medical Commission that he is actually trying to enjoin right and I think if you look at the Another way to think about this is isn't the action the investigation and discipline of somebody for making

[00:30:22] Speaker 01:
unorthodox statements about COVID and the COVID vaccines?

[00:30:26] Speaker 00:
That's not something that he's alleged.

[00:30:29] Speaker 00:
There's no policy there.

[00:30:32] Speaker 00:
There's no thing there that can actually be enjoined.

[00:30:35] Speaker 00:
And if you look at, I would invite Your Honour to take a look at his prayer for relief and ask what an injunction benefiting Dr. Moynihan would even look like.

[00:30:44] Speaker 00:
So their prayer for relief is simultaneously conclusory and nonspecific.

[00:30:49] Speaker 00:
They ask for, quote, a declaration that the defendant's future investigation, prosecution, and sanctioning of Washington physicians based on the physician's public soapbox speech about the subject and viewpoint.

[00:31:03] Speaker 00:
Sorry.

[00:31:04] Speaker 00:
OK.

[00:31:04] Speaker 00:
I'm sorry.

[00:31:05] Speaker 00:
My apologies.

[00:31:06] Speaker 00:
And ask for an injunction barring the defendants from commencing any future investigation or prosecution of a physician based on the physician's protected speech to the public.

[00:31:16] Speaker 00:
This is a classic follow-the-law injunction that the Supreme Court has said is not appropriate.

[00:31:21] Speaker 00:
An injunction has to contain an operative command capable of enforcement.

[00:31:27] Speaker 00:
That's the International Longshoremen's Association complaint.

[00:31:30] Speaker 00:
I've seen it gone over times.

[00:31:31] Speaker 00:
If I could just finish this thought.

[00:31:33] Speaker 00:
Please.

[00:31:34] Speaker 00:
The point here is that because Dr. Moynihan doesn't point to any actual policy he's trying to enjoin, any actual law he's trying to enjoin, any actual anything that he's trying to enjoin other than some vague, don't investigate me for speech that I claim is constitutionally protected,

[00:31:53] Speaker 00:
He's left with this sort of vague, unclear request for injunction.

[00:31:58] Speaker 00:
And that really highlights that this is an unripe claim.

[00:32:01] Speaker 00:
Okay.

[00:32:02] Speaker 01:
I think we've let you go over your time.

[00:32:04] Speaker 01:
Let me see if our colleagues have questions for you.

[00:32:06] Speaker 00:
For all the foreground reasons, I would ask that your honors affirm the district court.

[00:32:11] Speaker 01:
Thank you, Mr. Hughes.

[00:32:13] Speaker 01:
Mr. Jaffa, you have two minutes for rebuttal.

[00:32:15] Speaker 03:
Thank you, Your Honor.

[00:32:16] Speaker 03:
First of all, the First Amendment protects even full speech.

[00:32:21] Speaker 03:
That is, you actually, Alvarez and this judge Smith's decision in in in banquet hearing.

[00:32:29] Speaker 03:
So the notion that there's no doctrinal support for the idea that you can just stop speech because it's false.

[00:32:37] Speaker 02:
Second, let me ask you this council.

[00:32:39] Speaker 02:
We're talking about a medical board that supervises physicians.

[00:32:44] Speaker 02:
If a physician, Moynihan or somebody else, said in articles or whatever, I think you should all drink strychnine, do it right away.

[00:32:55] Speaker 02:
Couldn't the board prosecute him even though it was false, but it could lead to their death or serious problems?

[00:33:02] Speaker 02:
Why can't they do that?

[00:33:05] Speaker 03:
Well, number one, because of, first of all, doctors, we have an entire record of the case.

[00:33:13] Speaker 03:
from the Sanjay Verma declaration and the declarations of each doctors about what they want to say.

[00:33:19] Speaker 03:
So it's just not true that we don't, it's not specific.

[00:33:22] Speaker 03:
We've got

[00:33:24] Speaker 03:
pages and pages and studies and studies about information, which is against the mainstream narrative, which we want to say, which appears to be a violation of the right to speech.

[00:33:34] Speaker 03:
Secondly, there's nothing in the record that says all the false stuff that came out from doctors about how all you have to do, take two and you're done.

[00:33:42] Speaker 03:
There's nothing in the record that that is subject to scrutiny.

[00:33:49] Speaker 03:
So that is pure viewpoint speech.

[00:33:51] Speaker 03:
Getting to your doctrine,

[00:33:52] Speaker 03:
You either go for the First Amendment or you don't.

[00:33:55] Speaker 03:
Your decision says that you need historical examples of how speech can be subject to limitations by false speech.

[00:34:09] Speaker 03:
And the historical examples, which was set out two years later,

[00:34:13] Speaker 03:
in pickup.

[00:34:14] Speaker 03:
So yes, I have to take the position doctors can stand up and say even ridiculous things, because that's what the First Amendment does.

[00:34:24] Speaker 03:
And that's what all judges and justices from Jackson to Kingley say you can do.

[00:34:31] Speaker 03:
This court, the defendants have not shown that they've satisfied their strict scrutiny burden.

[00:34:37] Speaker 03:
And if that's the case,

[00:34:39] Speaker 03:
We think that is the dispositive issue in the case.

[00:34:43] Speaker 03:
And methodologically, it compels the rejection of all of these cases.

[00:34:48] Speaker 01:
I think we have your argument, Mr. Jaffe.

[00:34:50] Speaker 01:
We'll let you go a little over your time.

[00:34:52] Speaker 01:
I want to thank you, Mr. Jaffe.

[00:34:53] Speaker 01:
I want to thank Mr. Hughes, both of you, for your briefing and argument.

[00:34:57] Speaker 01:
This case is submitted and will stand adjourned until tomorrow.