Case 2:22-cv-01980-WBS-AC Document 35 Filed 01/25/23 Page 1 of 30

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA
10
----oo0oo----
11

12 TRACY HØEG, M.D., Ph.D.; RAM No. 2:22-cv-01980 WBS AC

DURISETI, M.D., Ph.D.; AARON
13 KHERIATY, M.D.; PETE
MAZOLEWSKI, M.D.; and AZADEH
14 KHATIBI, M.D., M.S., M.P.H.,
15 Plaintiffs, MEMORANDUM AND ORDER RE:
PLAINTIFFS’ MOTIONS FOR
16 v. PRELIMINARY INJUNCTION
17 GAVIN NEWSOM, Governor of the
State of California, in his
18 official capacity; KRISTINA
LAWSON, President of the
19 Medical Board of California, in
her official capacity; RANDY
20 HAWKINS, M.D., Vice President
of the Medical Board of
21 California, in his official
capacity; LAURIE ROSE LUBIANO,
22 Secretary of the Medical Board
of California, in her official
23 capacity; MICHELLE ANNE BHOLAT,
M.D., M.P.H., DAVID E. RYU,
24 RYAN BROOKS, JAMES M. HEALZER,
M.D., ASIF MAHMOOD, M.D.,
25 NICOLE A. JEONG, RICHARD E.
THORP, M.D., VELING TSAI, M.D.,
26 and ESERICK WATKINS, members of
the Medical Board of
27 California, in their official
capacities; and ROB BONTA,
28 Attorney General of California,
1
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1 in his official capacity;

2 Defendants.
3

4
LETRINH HOANG, D.O.; PHYSICIANS No. 2:22-cv-02147 WBS AC
5 FOR INFORMED CONSENT, a not-for
profit organization; and
6 CHILDREN’S HEALTH DEFENSE,
CALIFORNIA CHAPTER, a
7 California Nonprofit
Corporation;
8
Plaintiffs,
9
v.
10
ROB BONTA, in his official
11 capacity as Attorney General of
California; and ERIKA CALDERON,
12 in her official capacity as
Executive Officer of the
13 Osteopathic Medical Board of
California;
14
Defendants.
15

16 ----oo0oo----

17 Plaintiffs Tracy Høeg, Ram Duriseti, Aaron Kheriaty,

18 Pete Mazolewski, and Azadeh Khatibi (collectively, “Høeg

19 plaintiffs”) brought a § 1983 action against Gavin Newsom, in his

20 official capacity as Governor of California; Rob Bonta, in his

21 official capacity as Attorney General of California; Kristina

22 Lawson, in her official capacity as President of the Medical

23 Board of California (the “Medical Board”); Randy Hawkins, in his

24 official capacity as Vice President of the Medical Board; Laurie

25 Rose Lubiano, in her official capacity as Secretary of the

26 Medical Board; and Michelle Anne Bholat, David E. Ryu, Ryan

27 Brooks, James M. Healzer, Asif Mahmood, Nicole A. Jeong, Richard

28 E. Thorp, Veling Tsai, and Eserick Watkins, in their official

2
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1 capacities as members of the Medical Board. (Høeg Compl. (Docket

2 No. 1).) The Høeg plaintiffs are physicians licensed by the

3 Medical Board.
4 Plaintiffs Letrinh Hoang, Physicians for Informed
5 Consent, and Children’s Health Defense, California Chapter1
6 (collectively, “Hoang plaintiffs”) brought a § 1983 action
7 against defendants Rob Bonta, in his official capacity as
8 Attorney General of California, and Erika Calderon, in her

9 official capacity as Executive Officer of the Osteopathic Medical

10 Board of California (the “Osteopathic Board”). (Hoang Compl.
11 (Docket No. 1).) Plaintiff Hoang is a physician licensed by the
12 Osteopathic Board. The remaining two plaintiffs are
13 organizations representing the interests of doctors and patients.
14 Plaintiffs in these related cases (see Høeg Docket No.
15 21; Hoang Docket No. 9.) allege that Assembly Bill (“AB”) 20982

16 is unconstitutional under the First and Fourteenth Amendments of

17 the U.S. Constitution. Plaintiffs filed separate motions seeking

18 a preliminary injunction to enjoin the State of California from

19 enforcing AB 2098. (Høeg Notice of Mot. and Mem. In Support of

20 Mot. for Prelim. Inj. (“Høeg Mot.”) (Docket No. 5); Hoang Mot.

21 for Prelim. Inj. and Mem. of Law (“Hoang Mot.”) (Docket No. 4).)

22 I. The Challenged Statute

23 A. Statutory Provisions

24
1 Hereinafter, the court will refer to Children’s Health
25 Defense, California Chapter as “Children’s Health Defense.”
26 2 AB 2098 has been codified at Cal. Bus. & Prof. Code §
27 2270. Because the parties refer to the law as “AB 2098”
throughout their briefs, the court will refer to the statute as
28 AB 2098 for convenience.
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1 AB 2098, codified at Cal. Bus. & Prof. Code § 2270,

2 took effect on January 1, 2023. The statute provides that “[i]t

3 shall constitute unprofessional conduct for a physician and
4 surgeon to disseminate misinformation or disinformation related
5 to COVID-19, including false or misleading information regarding
6 the nature and risks of the virus, its prevention and treatment;
7 and the development, safety, and effectiveness of COVID-19
8 vaccines.” Cal. Bus. & Prof. Code § 2270(a) (emphasis added).

9 The statute defines “misinformation” as “false

10 information that is contradicted by contemporary scientific

11 consensus contrary to the standard of care.” Id. § 2270(b)(4)

12 (emphasis added). The statute defines “disinformation” as

13 “misinformation that the licensee deliberately disseminated with

14 malicious intent or an intent to mislead.” Id. § 2270(b)(2)

15 (emphasis added).

16 The misinformation or disinformation must be conveyed

17 “[by] the licensee to a patient under the licensee’s care in the

18 form of treatment or advice.” Id. § 2270(b)(3). Physicians and

19 surgeons licensed by the Medical Board or the Osteopathic Board

20 (the “Boards”) are covered by the statute. Id. § 2270(b)(5).

21 The Boards are tasked with enforcing AB 2098. The

22 statute augments the definition of “unprofessional conduct,” id.

23 § 2270(a), which is a pre-existing basis for disciplinary action

24 by the Boards, see id. § 2234. Unprofessional conduct also

25 includes, but is not limited to, “gross negligence,” “repeated

26 negligent acts,” and “incompetence.” Id.

27 B. Legislative Findings

28 At the time AB 2098 was enacted, the California

4
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1 Legislature made several findings. The Legislature found that

2 “[t]he global spread of the SARS-CoV-2 coronavirus, or COVID-19,

3 has claimed the lives of over 6,000,000 people worldwide,
4 including nearly 90,000 Californians.” AB 2098, 2021-22 Reg.
5 Sess. (Cal. 2022) § 1(a). The Legislature also found that
6 “[d]ata from the federal Centers for Disease Control and
7 Prevention (CDC) shows that unvaccinated individuals are at a
8 risk of dying from COVID-19 that is 11 times greater than those

9 who are fully vaccinated.” Id. § 1(b). It further stated that

10 “[t]he safety and efficacy of COVID-19 vaccines have been

11 confirmed through evaluation by the federal Food and Drug

12 Administration (FDA) and the vaccines continue to undergo

13 intensive safety monitoring by the CDC.” Id. § 1(c).

14 The Legislature then addressed the policy problems the

15 bill was designed to remedy. The bill first states that “[t]he

16 spread of misinformation and disinformation about COVID-19

17 vaccines has weakened public confidence and placed lives at

18 serious risk,” with “major news outlets [reporting that] some of

19 the most dangerous propagators of inaccurate information

20 regarding the COVID-19 vaccines are licensed health care

21 professionals.” Id. §§ 1(d), 1(e). The bill states that in

22 response to these concerns, the Legislature previously “declared

23 health misinformation to be a public health crisis, and urged the

24 State of California to commit to appropriately combating health

25 misinformation and curbing the spread of falsehoods that threaten

26 the health and safety of Californians.” Id. § 1(g). The

27 Legislature also noted that “[t]he Federation of State Medical

28 Boards has released a statement warning that physicians who

5
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1 engage in the dissemination of COVID-19 vaccine misinformation or

2 disinformation risk losing their medical license, and that

3 physicians have a duty to provide their patients with accurate,
4 science-based information.” Id. § 1(f).
5 II. Preliminary Injunction Standard
6 To succeed on a motion for a preliminary injunction,
7 plaintiffs must establish that (1) they are likely to succeed on
8 the merits; (2) they are likely to suffer irreparable harm in the

9 absence of preliminary relief; (3) the balance of equities tips

10 in their favor; and (4) an injunction is in the public interest.
11 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008);
12 Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir.

13 2011). “[I]njunctive relief [i]s an extraordinary remedy that

14 may only be awarded upon a clear showing that the plaintiff is

15 entitled to such relief.” Winter, 555 U.S. at 22.

16 III. Article III Standing3

17 To determine whether plaintiffs are entitled to a

18 preliminary injunction, the court must first determine whether

19 they have standing to challenge AB 2098. “In order to invoke the

20 jurisdiction of the federal courts, a plaintiff must establish

21 ‘the irreducible constitutional minimum of standing.’” Lopez v.

22 Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (quoting Lujan v.

23 Def. of Wildlife, 504 U.S. 555, 560 (1992)). Article III

24
3 Defendants initially disputed that the Høeg plaintiffs
25 have standing (see Høeg Opp’n (Docket No. 23) at 6), though they
26 all but conceded the issue at oral argument. Defendants did not
argue that the Hoang plaintiffs lack standing. (See Hoang Opp’n
27 (Docket No. 16).) Regardless, the court has a duty to evaluate
all parties’ standing. See Bernhardt v. County of Los Angeles,
28 279 F.3d 862, 868 (9th Cir. 2002).
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1 standing has three elements: “(1) injury-in-fact--plaintiff must

2 allege concrete and particularized and actual or imminent harm to

3 a legally protected interest; (2) causal connection--the injury
4 must be fairly traceable to the conduct complained of; and (3)
5 redressability--a favorable decision must be likely to redress
6 the injury-in-fact.” Barnum Timber Co. v. U.S. EPA, 633 F.3d
7 894, 897 (9th Cir. 2011) (citing Lujan, 504 U.S. at 560-61)
8 (internal quotation marks omitted).

9 Challenges that involve First Amendment rights “present

10 unique standing considerations” because of the “chilling effect
11 of sweeping restrictions” on speech. Ariz. Right to Life Pol.
12 Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003).

13 “In order to avoid this chilling effect, the Supreme Court has

14 endorsed what might be called a ‘hold your tongue and challenge

15 now’ approach rather than requiring litigants to speak first and

16 take their chances with the consequences.” Italian Colors Rest.

17 v. Becerra, 878 F.3d 1165, 1171 (9th Cir. 2018) (internal

18 quotation marks omitted). Accordingly, when the challenged law

19 “implicates First Amendment rights, the [standing] inquiry tilts

20 dramatically toward a finding of standing.” LSO, Ltd. v. Stroh,

21 205 F.3d 1146, 1155 (9th Cir. 2000).

22 A. Individual Physician Plaintiffs

23 In the context of a pre-enforcement challenge to the

24 constitutionality of a law, “a plaintiff satisfies the injury-in-

25 fact requirement where he alleges ‘an intention to engage in a

26 course of conduct arguably affected with a constitutional

27 interest, but proscribed by a statute, and there exists a

28 credible threat of prosecution thereunder.’” Susan B. Anthony

7
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1 List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt v.

2 United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)); see
3 also Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1015 (9th Cir.
4 2013) (applying this standard to a facial vagueness challenge).
5 The Ninth Circuit applies a “three-factor inquiry to
6 help determine whether a threat of enforcement is genuine enough
7 to confer an Article III injury”: “(1) whether the plaintiff has
8 a ‘concrete plan’ to violate the law, (2) whether the enforcement

9 authorities have ‘communicated a specific warning or threat to

10 initiate proceedings,’ and (3) whether there is a ‘history of
11 past prosecution or enforcement.’” Tingley v. Ferguson, 47 F.4th
12 1055, 1067 (9th Cir. 2022) (quoting Thomas v. Anchorage Equal

13 Rts. Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc)). In

14 the context of a pre-enforcement challenge on First Amendment

15 grounds, a plaintiff “need only demonstrate that a threat of

16 potential enforcement will cause him to self-censor.” Id. at

17 1068.

18 Plaintiffs Høeg, Duriseti, Kheriaty, Mazolewski, and

19 Hoang have sufficiently alleged a concrete plan to violate the

20 challenged law. Plaintiffs state that they have provided

21 specific advice to patients about potential health risks of

22 COVID-19 vaccines and boosters and have informed patients of

23 flaws in the research supporting vaccines and boosters. (Suppl.

24 Decl. of Dr. Tracy Høeg (“Høeg Suppl. Decl.”) (Høeg Docket No.

25 26-1) ¶¶ 4-5; Suppl. Decl. of Dr. Aaron Kheriaty (“Kheriaty

26 Suppl. Decl.”) (Høeg Docket No. 26-2) ¶ 12; Suppl. Decl. of Dr.
27 Pete Mazolewski (“Mazolewski Suppl. Decl.”) (Høeg Docket No. 26-

28 3) ¶ 5; Decl. of Dr. Letrinh Hoang (“Hoang Decl.”) (Hoang Docket

8
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1 No. 4-1) ¶ 5.) Plaintiffs also state that they have informed

2 patients about flaws in the research supporting universal

3 masking, and at times have advised patients against wearing masks
4 based on the patients’ individual needs. (Høeg Suppl. Decl ¶ 6;
5 Kheriaty Suppl. Decl. ¶¶ 3-6; Mazolewski Suppl. Decl. ¶ 3.)
6 Plaintiff Duriseti states that he treated COVID-19 patients with
7 non-invasive ventilatory support rather than intubation early in
8 the pandemic. (Decl. of Ram Duriseti (“Duriseti Decl.”) (Høeg

9 Docket No. 1-3) ¶ 8.) Plaintiff Hoang additionally states that

10 she has discussed the possible use of off-label treatments for
11 COVID-19 with her patients. (Hoang Decl. ¶ 2.)
12 Physician plaintiffs state that, in these instances,
13 their conduct contradicted the “scientific consensus” at the
14 time, as determined by public health agencies like the CDC or by
15 common practice in the medical field. (See, e.g., Decl. of Pete

16 Mazolewski (“Mazolewski Decl.”) (Høeg Docket No. 1-5) ¶ 13; Høeg

17 Suppl. Decl. ¶¶ 6-7; Duriseti Decl. ¶ 8; Kheriaty Suppl. Decl. ¶

18 7; Hoang Decl. ¶¶ 3-4.) The Hoang plaintiffs provide an expert

19 declaration by Dr. Sanjay Verma, which similarly concludes that

20 much of the advice and treatment provided in these situations has

21 previously contradicted or currently contradicts the “consensus.”

22 Dr. Verma cites to numerous examples of contrary guidance

23 provided by the CDC on the issues of masking and vaccination.

24 (See Decl. of Dr. Sanjay Verma (“Verma Decl.”) (Hoang Docket No.

25 4-1) at 20-32.)

26 Some of the physician plaintiffs intend to continue

27 providing such advice and treatment to patients in the future.

28 (Kheriaty Suppl. Decl. ¶ 6; Mazolewski Suppl. Decl. ¶ 5; Hoang

9
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1 Decl. ¶ 15.) Others indicate that their conduct will be chilled

2 by AB 2098.4 (Høeg Suppl. Decl. ¶ 3; Duriseti Decl. ¶ 16.) The

3 physician plaintiffs have therefore established a concrete plan
4 to violate the challenged law. See Tingley, 47 F.4th at 1068
5 (the Ninth Circuit “do[es] not require plaintiffs to specify
6 ‘when, to whom, where, or under what circumstances’ they plan to
7 violate the law when they have already” engaged in conduct
8 “arguably” proscribed by the law) (quoting Thomas, 220 F.3d at

9 1139); id. (in the context of a pre-enforcement challenge on

10 First Amendment grounds, a plaintiff “need only demonstrate that

11 a threat of potential enforcement will cause him to self-

12 censor”).

13 Physician plaintiffs have also established a credible

14 threat of enforcement. They aver that they intend to convey

15 truthful information and provide treatment consistent with the

16 standard of care. However, plaintiffs’ beliefs about their

17 conduct do not preclude the enforcing agencies from determining

18 that their conduct violates the challenged statute. See Susan B.

19 Anthony List, 573 U.S. at 162-63 (in determining whether

20 plaintiffs have established a threat of enforcement, plaintiffs’

21 conduct need only “arguably” be proscribed by the challenged

22
4 Plaintiffs contend that the law was intended to
23
intimidate them into not expressing their views. They point to
24 the text of the statute, as well as its legislative history.
See, e.g., Defs.’ Ex. E, Assembly Report on Third Reading of AB
25 2098 (Høeg Docket No. 23-3 at 43-49) at 7 (noting that while the
26 Boards may already have the ability to discipline licensees for
the conduct proscribed by AB 2098, the statute will “make[]
27 clear” that the Boards have such authority and thereby discourage
licensees from sharing information that “undermine[s] public
28 health efforts”).
10
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1 statute and plaintiffs’ beliefs about their conduct are not

2 dispositive). Based on plaintiffs’ explanations of the advice

3 and treatment they provide contrary to public health
4 recommendations, it is plausible that the Boards will determine
5 that their conduct violates AB 2098. This fear is especially
6 reasonable given the ambiguity of the term “scientific consensus”
7 and of the definition of “misinformation” as a whole, as
8 discussed in further detail in Section IV. The government’s

9 “failure to disavow enforcement of the law” further weighs in

10 favor of standing. See Tingley, 47 F.4th at 1068.
11 “The third factor, concerning the history of

12 enforcement, carries ‘little weight’ when the challenged law is

13 ‘relatively new’ and the record contains little information as to

14 enforcement.” Id. at 1068 (quoting Cal. Trucking Ass’n v. Bonta,

15 996 F.3d 644, 653 (9th Cir. 2021)). AB 2098 has been in effect

16 for less than a month, and this action was initiated prior to AB

17 2098 coming into effect. Unsurprisingly, the parties have

18 presented no history of enforcement. The lack of enforcement

19 history “weighs against standing but is not dispositive.” Id. at

20 1069 (internal quotation marks omitted).

21 As the first and second factors weigh in favor of

22 standing, the court concludes that plaintiffs have established an

23 injury-in-fact. See id. Because the injury alleged--a credible

24 threat of prosecution under AB 2098--is “clearly traceable” to AB

25 2098, and “can be redressed through an injunction enjoining

26 enforcement of that provision,” physician plaintiffs have

27 standing to challenge it. See Valle del Sol, 732 F.3d at 1016.

28 B. Individual Patient Plaintiff

11
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1 Although plaintiff Khatibi is a physician licensed by

2 the Medical Board, she asserts standing as a patient, on the

3 basis that AB 2098 interferes with her right to receive
4 information from her doctors.
5 The Supreme Court has stated that “the Constitution
6 protects the right to receive information and ideas,” which “is
7 an inherent corollary of the rights of free speech and press that
8 are explicitly guaranteed by the Constitution.” Bd. of Educ.,

9 Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853,

10 867 (1982). Accordingly, “where the effect of a vague statute

11 would infringe upon a party’s First Amendment rights, standing

12 requirements to challenge the statute under the Fourteenth

13 Amendment Due Process Clause are broader than they otherwise

14 might be.” Arce v. Douglas, 793 F.3d 968, 987 (9th Cir. 2015)

15 (citing Hynes v. Mayor & Council of Borough of Oradell, 425 U.S.

16 610 (1976); Maldonado v. Morales, 556 F.3d 1037 (9th Cir. 2009)).

17 Thus, where a statute interferes with a plaintiff’s First

18 Amendment right to receive information, she has standing to

19 challenge the law, even if it does not apply to her. Id. at 987-

20 88.

21 Because AB 2098 implicates plaintiff Khatibi’s First

22 Amendment right to receive information, she has standing. See

23 id.; see also Conant v. Walters, 309 F.3d 629, 632 (9th Cir.

24 2002) (deciding the merits of First Amendment challenge to

25 statute prohibiting doctors from “recommending” medical

26 marijuana, which was brought by patients who wanted access to

27 treatment, physicians who feared enforcement of statute, and

28 organizations representing such physicians and patients); Forbes

12
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1 v. Napolitano, 236 F.3d 1009, 1010 (9th Cir. 2000), amended, 247

2 F.3d 903 (9th Cir. 2000), amended, 260 F.3d 1159 (9th Cir. 2001)
3 (deciding the merits of vagueness challenge to statute
4 criminalizing certain medical procedures, which was brought by
5 patients who wanted access to treatment and physicians who feared
6 prosecution under statute).
7 C. Organizational Plaintiffs
8 In addition to the individual plaintiffs in both

9 matters, there are two organizational plaintiffs in the Hoang

10 matter: Physicians for Informed Consent and Children’s Health
11 Defense.
12 “When suing on behalf of its members, an organization
13 must show that its members would have individual standing, the
14 issues are germane to the organization’s purpose, and neither the
15 claim nor the requested relief requires individual

16 participation.” Inland Empire Waterkeeper v. Corona Clay Co., 17

17 F.4th 825, 831 (9th Cir. 2021) (citing Hunt v. Wash. State Apple

18 Advert. Comm’n, 432 U.S. 333, 342–43 (1977)).

19 Plaintiff Physicians for Informed Consent is a non-

20 profit organization whose educational mission is to “deliver data

21 on infectious diseases and vaccines, and unite doctors,

22 scientists, healthcare professionals, attorneys, and families who

23 support voluntary vaccination.” (Decl. of Dr. Shira Miller

24 (Hoang Docket No. 4-6) ¶ 3.) The claims here are clearly

25 relevant to the organization’s mission.

26 Physicians for Informed Consent’s membership includes

27 physicians who intend to violate AB 2098 or who have been chilled

28 by AB 2098, and patients who contend that AB 2098 interferes with

13
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1 their right to receive information. (See id. ¶¶ 4-6.) Like the

2 individual physician and patient plaintiffs discussed above, the

3 organization’s members would have individual standing. The
4 participation of individual members is not necessary for this
5 action to proceed.
6 Plaintiff Children’s Health Defense is a non-profit
7 organization whose mission is to “end childhood health epidemics
8 by working aggressively to eliminate harmful exposures, hold

9 those responsible accountable, and to establish safeguards to

10 prevent future harm,” which “includes advocating for medical
11 freedom, bodily autonomy, and an individual’s right to receive
12 the best information available based on a physician’s best
13 judgment.” (Hoang Compl. ¶ 31.) The claims here are clearly
14 relevant to the organization’s mission.
15 Children’s Health Defense’s membership includes parents

16 in California who contend that AB 2098 interferes with their

17 right to receive information pertinent to their children’s
18 health. (Id. ¶ 33.) Like plaintiff Khatibi, the organization’s
19 members would have individual standing. The participation of

20 individual members is not necessary for this action to proceed.

21 Because both organizations’ members would have

22 individual standing, the issues raised here are germane to the

23 organizations’ purposes, and neither the claims nor the requested

24 relief require individual participation, the court concludes that

25 Physicians for Informed Consent and Children’s Health Defense

26 have standing. See Inland Empire Waterkeeper, 17 F.4th at 831.

27

28
14
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1 IV. Vagueness Challenge5

2 Having determined that plaintiffs have standing, the

3 court next considers whether they have demonstrated a likelihood
4 of success on the merits. Plaintiffs contend that the law’s
5 definition of “misinformation” is unconstitutionally vague under
6 the Due Process Clause of the Fourteenth Amendment. AB 2098
7 defines misinformation as “false information that is contradicted
8 by contemporary scientific consensus contrary to the standard of

9 care.” Cal. Bus. & Prof. Code § 2270.

10 A statute is unconstitutionally vague when it either
11 “fails to provide a person of ordinary intelligence fair notice
12 of what is prohibited, or is so standardless that it authorizes
13 or encourages seriously discriminatory enforcement.” United
14 States v. Williams, 553 U.S. 285, 304 (2008); see also Hill v.

15 Colorado, 530 U.S. 703, 732 (2000); Tingley, 47 F.4th at 1089.

16 “The operative question under the fair notice theory is

17 whether a reasonable person would know what is prohibited by the

18 law.” Tingley, 47 F.4th at 1089. “The terms of a law cannot

19 require ‘wholly subjective judgments without statutory

20 definitions, narrowing context, or settled legal meanings.’” Id.

21 (quoting Holder, 561 U.S. at 20). The standardless enforcement

22
5 Judge Fred W. Slaughter of the Central District of
23
California recently issued an order denying a similar motion for
24 preliminary injunction in McDonald v. Lawson, No. 8:22-cv-01805.
Judge Slaughter concluded that the physician plaintiffs had
25 failed to establish a likelihood of success on the merits of
26 their First and Fourteenth Amendment claims. 2022 WL 18145254,
at *6, 16 (C.D. Cal. Dec. 28, 2022). The court notes that it is
27 not bound by the McDonald court’s decision, and for the reasons
discussed herein, does not find that decision’s reasoning on the
28 vagueness issue persuasive.
15
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1 theory asks whether the law provides “objective standards” that

2 “establish minimal guidelines to govern . . . enforcement.” See

3 Gonzales v. Carhart, 550 U.S. 124, 150 (2007).
4 Vague statutes are particularly objectionable when they
5 “involve sensitive areas of First Amendment freedoms” because
6 “they operate to inhibit the exercise of those freedoms.” Cal.
7 Tchrs. Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1150 (9th Cir.
8 2001) (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09

9 (1972)). The Supreme Court has said that “when a statute

10 ‘interferes with the right of free speech or of association, a

11 more stringent vagueness test should apply.’” Holder v.

12 Humanitarian L. Project, 561 U.S. 1, 19 (2010) (quoting Hoffman

13 Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495

14 (1982)); see also McCormack v. Herzog, 788 F.3d 1017, 1031 (9th

15 Cir. 2015), abrogated on other grounds by Dobbs v. Jackson

16 Women’s Health Org., 142 S. Ct. 2228 (2022) (applying heightened

17 clarity requirement in vagueness challenge to statute that

18 implicated a then-existing constitutional right).6

19 When the challenged law implicates First Amendment

20 rights, a facial challenge based on vagueness is appropriate.

21 Cal. Tchrs. Ass’n, 271 F.3d at 1149; see also City of Chicago v.

22 Morales, 527 U.S. 41, 55 (1999). In considering a facial

23
6 Though the court does not reach plaintiffs’ First
24 Amendment challenges, AB 2098 clearly implicates First Amendment
concerns. See Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138
25 S. Ct. 2361, 2375 (2018) (stating that professional speech,
26 including speech by medical providers, “is [not] exempt from
ordinary First Amendment principles”); Conant, 309 F.3d at 637
27 (recognizing “the core First Amendment values of the doctor-
patient relationship”). Accordingly, the court will apply a more
28 exacting vagueness analysis.
16
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1 vagueness challenge, the court “consider[s] whether a statute is

2 vague as applied to the particular facts at issue, for ‘[a]

3 plaintiff who engages in some conduct that is clearly proscribed
4 cannot complain of the vagueness of the law as applied to the
5 conduct of others.’” Holder, 561 U.S. at 18–19 (quoting Hoffman
6 Estates, 455 U.S. at 495).
7 A. “Contemporary Scientific Consensus”
8 “Usually, [courts] look to a term’s common meaning, but

9 if the law regulates the ‘conduct of a select group of persons

10 having specialized knowledge,’ then the ‘standard is lowered’ for
11 terms with a ‘technical’ or ‘special meaning.’” Tingley, 47
12 F.4th at 1090 (quoting United States v. Weitzenhoff, 35 F.3d

13 1275, 1289 (9th Cir. 1993)). In Tingley, the Ninth Circuit

14 applied a lower vagueness standard to psychologists, who

15 challenged the terms “sexual orientation” and “gender identity”

16 as unconstitutionally vague. Based on an expert declaration and

17 the plaintiff’s own usage of the term “gender identity” in

18 describing his expertise, the Ninth Circuit concluded that the

19 terms at issue were within the specialized knowledge of the

20 regulated group. Id.

21 In contrast, it is inappropriate to apply a lower

22 vagueness standard here because, based on the record before the

23 court, it appears that the primary term at issue--“contemporary

24 scientific consensus”--does not have an established technical

25 meaning in the medical community. Physician plaintiffs provide

26 declarations explaining that “scientific consensus” is a poorly

27 defined concept. (See Duriseti Decl. ¶¶ 7-13; Decl. of Dr. Tracy

28 Høeg (“Høeg Decl.”) (Docket No. 1-2) ¶¶ 11-24; Decl. of Dr. Aaron
17
 Case 2:22-cv-01980-WBS-AC Document 35 Filed 01/25/23 Page 18 of 30

1 Kheriaty (“Kheriaty Decl.”) (Docket No. 1-4) ¶¶ 7-10; Decl. of

2 Dr. Pete Mazolewski (“Mazolewski Decl.”) (Docket No. 1-5) ¶¶ 7-

3 13; Decl. of Dr. Azadeh Khatibi (“Khatibi Decl.”) (Docket No. 1-
4 6) ¶¶ 8-11.) For example, Dr. Khatibi explains that there are
5 different notions of scientific “consensus.” These include
6 “informal consensus,” which refers to the general opinion of
7 doctors, and “formal consensus,” which refers to a process by
8 which “a group of doctors with expertise in a particular topic

9 come together to . . . discuss[] and debate the evidence around a

10 topic,” and “arrive at some conclusions for general patient care
11 guidelines,” which are then published. (Khatibi Decl. ¶ 8.)
12 Expert declarant Dr. Verma also explains that the term
13 “scientific consensus,” as it has come to be used during the
14 pandemic, often refers to the pronouncements of public health
15 officials. (See Verma Decl. ¶ 8.)

16 Defendants provide no evidence that “scientific

17 consensus” has any established technical meaning; the expert

18 declarations they offer are notably silent on the topic. (See

19 Decl. of Dr. James Nuovo (Høeg Docket No. 23-1); Decl. of Dr.

20 Angela Lim (Hoang Docket No. 16-2).) And contrary to defendants’

21 argument, the mere fact that the statute regulates medical

22 professionals does not trigger a lower vagueness standard. See

23 Forbes, 236 F.3d at 1013 (applying a typical vagueness analysis

24 and holding that challenged terms in statute regulating medical

25 providers were unconstitutionally vague). The court therefore

26 will not apply a lower vagueness standard here.

27 In Forbes, the Ninth Circuit considered a vagueness

28 challenge to a law prohibiting medical “experimentation” or

18
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1 “investigation” involving fetal tissue from abortions unless

2 necessary to perform a “routine” pathological examination. 236

3 F.3d at 1010. The court relied on testimony from the plaintiffs
4 (who were physicians) and expert witnesses to evaluate the
5 challenged terms, which were not defined by the statute. The
6 experts “highlight[ed] doctors’ lack of consensus about what
7 procedures are purely experimental” and pointed out difficulties
8 arising from the changing nature of scientific understanding, by

9 which some “experiments” will eventually become recognized as

10 “treatment.” Id. at 1011-13. The terms “investigation” and
11 “routine” were problematic because multiple common definitions

12 could apply in the medical community, which “[lacked] any

13 official standards to help” define the terms. Id. at 1012. The

14 Ninth Circuit reasoned that because the contested terms lacked

15 sufficiently clear, commonly understood definitions in the

16 medical community, and the statute failed to provide narrowing

17 definitions, the statute was unconstitutionally vague. Id. at

18 1013. The lack of definitional clarity failed both to give

19 doctors fair notice of what conduct was prohibited, and to give

20 courts and law enforcement sufficient standards by which to

21 narrow the terms’ meanings. Forbes, 236 F.3d at 1013 (citing

22 Kolender v. Lawson, 461 U.S. 352, 358 (1983); and Papachristou v.

23 City of Jacksonville, 405 U.S. 156, 162 (1972)).

24 Like the contested terms in Forbes, “contemporary

25 scientific consensus” lacks an established meaning within the

26 medical community, and defendants do not propose one.7 The

27
7 At oral argument, defense counsel declined to explain
28 what specific conduct the law may prohibit, arguing that
19
 Case 2:22-cv-01980-WBS-AC Document 35 Filed 01/25/23 Page 20 of 30

1 statute provides no clarity on the term’s meaning, leaving open

2 multiple important questions. For instance, who determines

3 whether a consensus exists to begin with? If a consensus does
4 exist, among whom must the consensus exist (for example
5 practicing physicians, or professional organizations, or medical
6 researchers, or public health officials, or perhaps a
7 combination)? In which geographic area must the consensus exist
8 (California, or the United States, or the world)? What level of

9 agreement constitutes a consensus (perhaps a plurality, or a

10 majority, or a supermajority)? How recently in time must the
11 consensus have been established to be considered “contemporary”?
12 And what source or sources should physicians consult to determine
13 what the consensus is at any given time (perhaps peer-reviewed
14 scientific articles, or clinical guidelines from professional
15 organizations, or public health recommendations)? The statute

16 provides no means of understanding to what “scientific consensus”

17 refers.
18 Judicial references to the concept of scientific
19 consensus--in the context of COVID-19 as well as other disputed
20 scientific topics--confirm that the term lacks an established
21 meaning. Courts have based their understanding of scientific
22 consensus on a wide range of sources, including U.S. professional

23 organizations, international professional organizations, state

24 and federal courts, U.S. scientific studies, international
25 scientific studies, various federal agencies, and the state of
26
27
application of the law is highly fact-specific.
28
20
 Case 2:22-cv-01980-WBS-AC Document 35 Filed 01/25/23 Page 21 of 30

1 California.8

2
8 See, e.g., Coonce v. United States, 142 S. Ct. 25, 28
3 (2021) (Sotomayor, J., dissenting) (clinical determinations by
professional organizations including the American Psychological
4
Association were “powerful evidence of medical consensus” on
5 definition of intellectual disability); United States v.
Scheffer, 523 U.S. 303, 309–10 (1998) (citing “polarization”
6 within the scientific community and disagreement among state and
federal courts as evidence of “lack of scientific consensus” on
7 efficacy of polygraphs); S. Bay United Pentecostal Church v.
Newsom, 985 F.3d 1128, 1133-34 (9th Cir. 2021), cert. granted,
8 judgment vacated, 141 S. Ct. 2563 (2021) (citing public health
9 framework published by State of California concerning COVID-19
masking, social distancing, and activity restrictions as
10 representative of “scientific consensus”); Edmo v. Corizon, Inc.,
935 F.3d 757, 769 (9th Cir. 2019) (citing an international
11 professional organization’s official standards of care as
representative of scientific consensus on healthcare for
12 transgender people); Ledezma-Cosino v. Sessions, 857 F.3d 1042,
13 1054 (9th Cir. 2017) (Thomas, J., dissenting) (citing
determinations by American Medical Association and U.S. Surgeon
14 General as reflecting “medical consensus”); Alaska Oil & Gas
Ass’n v. Pritzker, 840 F.3d 671, 679 (9th Cir. 2016) (federal
15 agency’s consultation of “the best available research” was
evidence of “scientific consensus” on climate change-related
16 issue); Planned Parenthood Fed’n of Am., Inc. v. Gonzales, 435
F.3d 1163, 1172 (9th Cir. 2006), rev’d sub nom. Gonzales v.
17
Carhart, 550 U.S. 124 (2007) (“By medical consensus, we do not
18 mean unanimity or that no single doctor disagrees, but rather
that there is no significant disagreement within the medical
19 community.”); Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311,
1314 (9th Cir. 1995) (citing FDA’s approval of a medication and
20 “every published study here and abroad” as evidence of “consensus
within the scientific community”); Keene v. City & Cnty. of San
21 Francisco, No. 22-cv-01587 JSW, 2022 WL 4454362, at *3 (N.D. Cal.
22 Sept. 23, 2022) (citing California Department of Public Health’s
determinations as evidence of “scientific consensus” on COVID-
23 19); United States v. Smith, 538 F. Supp. 3d 990, 995, 997 (E.D.
Cal. 2021) (Mueller, J.) (citing CDC public health guidelines as
24 representative of scientific consensus on COVID-19 vaccination);
United States v. Avalos-Villasenor, No. 16-cr-02189 GPC, 2021 WL
25 3534983, at *4 (S.D. Cal. Aug. 11, 2021) (citing “a recent study”
26 conducted by the CDC for the proposition that COVID-19 vaccines
are effective); Brach v. Newsom, No. 2:20-cv-06472 SVW AFM, 2020
27 WL 6036764, at *7 (C.D. Cal. Aug. 21, 2020) (characterizing
“scientific consensus” as a higher standard than “the most
28 reliable scientific evidence”).
21
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1 Because the term “scientific consensus” is so ill-

2 defined, physician plaintiffs are unable to determine if their

3 intended conduct contradicts the scientific consensus, and
4 accordingly “what is prohibited by the law.” See Tingley, 47
5 F.4th at 1089. As discussed in greater detail in Section III of
6 this Order, plaintiffs represent that they have provided and
7 would like to continue providing certain COVID-19-related advice
8 and treatment that contradict the positions of public health

9 agencies like the CDC. If the “consensus” is determined by

10 United States public health recommendations, physician
11 plaintiffs’ intended conduct would contradict that consensus; if
12 the same term is defined by other metrics, their conduct may be
13 permissible. The language of the statute provides no way to
14 determine which of multiple interpretations is appropriate.
15 Rather than merely providing the statute with

16 “flexibility and reasonable breadth,” the term “scientific

17 consensus” makes it impossible to understand “what the ordinance

18 as a whole prohibits.” See Grayned, 408 U.S. at 110. See also

19 McCormack, 788 F.3d at 1030-31 (quoting Tucson Woman’s Clinic v.

20 Eden, 379 F.3d 531, 55 (9th Cir. 2004)) (statute requiring

21 abortion providers to be “properly” staffed and have

22 “satisfactory” admitting arrangements with hospitals was

23 unconstitutionally vague because its terms “lack[ed] precise

24 definition, and ‘subject[ed] physicians to sanctions based not on

25 their own objective behavior, but on the subjective viewpoints of

26 others.’”); Tucson Woman’s Clinic, 379 F.3d at 554-55, abrogated

27 on other grounds by Dobbs, 142 S. Ct. 2228 (statute requiring

28 health care providers to “ensure that a patient is . . . treated

22
 Case 2:22-cv-01980-WBS-AC Document 35 Filed 01/25/23 Page 23 of 30

1 with consideration, respect, and full recognition of the

2 patient’s dignity and individuality” was unconstitutionally vague

3 because meanings of terms were “widely variable” and terms were
4 “not medical terms of art”). Cf. Planned Parenthood of Cent. &
5 N. Ariz. v. State of Ariz., 718 F.2d 938, 949 (9th Cir. 1983)
6 (“counseling for abortion procedures” was not a vague term
7 because it had a commonly understood meaning that a reasonable
8 person would understand, and previous case law on abortion

9 statutes sufficiently defined the term).

10 Defendants argue that while the scientific consensus
11 may sometimes be difficult to define, there is a clear scientific
12 consensus on certain issues--for example, that apples contain
13 sugar, that measles is caused by a virus, or that Down’s syndrome
14 is caused by a chromosomal abnormality. (Høeg Opp’n at 21; Hoang
15 Opp’n at 21.) However, AB 2098 does not apply the term

16 “scientific consensus” to such basic facts, but rather to COVID-

17 19--a disease that scientists have only been studying for a few
18 years, and about which scientific conclusions have been hotly
19 contested. COVID-19 is a quickly evolving area of science that
20 in many aspects eludes consensus.
21 Physician plaintiffs explain how, throughout the course
22 of the COVID-19 pandemic, scientific understanding of the virus

23 has rapidly and repeatedly changed. (Høeg Decl. ¶¶ 15-29;

24 Duriseti Decl. ¶¶ 7-15; Kheriaty Decl. ¶¶ 7-10; Mazolewski Decl.
25 ¶¶ 12-13.) Physician plaintiffs further explain that because of
26 the novel nature of the virus and ongoing disagreement among the
27 scientific community, no true “consensus” has or can exist at
28 this stage. (See id.) Expert declarant Dr. Verma similarly
23
 Case 2:22-cv-01980-WBS-AC Document 35 Filed 01/25/23 Page 24 of 30

1 explains that a “scientific consensus” concerning COVID-19 is an

2 illusory concept, given how rapidly the scientific understanding

3 and accepted conclusions about the virus have changed. Dr. Verma
4 explains in detail how the so-called “consensus” has developed
5 and shifted, often within mere months, throughout the COVID-19
6 pandemic. (Verma Decl. ¶¶ 13-42.) He also explains how certain
7 conclusions once considered to be within the scientific consensus
8 were later proved to be false. (Id. ¶¶ 8-10.) Because of this

9 unique context, the concept of “scientific consensus” as applied

10 to COVID-19 is inherently flawed. (See id.) See also Forbes,

11 236 F.3d at 1012 (indicating that the changing nature of a

12 medical term’s meaning is evidence of vagueness).

13 The use of a poorly-defined, subjective term is

14 particularly objectionable here because it serves to define the

15 prohibited conduct, rather than merely explain the context in

16 which the prohibition applies. See Gammoh v. City of La Habra,

17 395 F.3d 1114, 1120 (9th Cir. 2005), amended on denial of reh’g,

18 402 F.3d 875 (9th Cir. 2005). The term “scientific consensus”

19 therefore lacks a sufficient “statutory definition[], narrowing

20 context, or settled legal meaning[],” Tingley, 47 F.4th at 1089,

21 and fails to provide sufficiently objective standards to “focus

22 the statute’s reach,” Forbes, 236 F.3d at 1013, rendering the

23 definition of “misinformation” unconstitutionally vague.

24 B. “Contrary to the Standard of Care”

25 The Ninth Circuit has held that “otherwise imprecise

26 terms may avoid vagueness problems when used in combination with

27 terms that provide sufficient clarity.” Gammoh, 395 F.3d at 1120

28 (emphasis added).
24
 Case 2:22-cv-01980-WBS-AC Document 35 Filed 01/25/23 Page 25 of 30

1 Defendants argue that the inclusion of the phrase

2 “contrary to the standard of care” provides the definition of

3 misinformation with adequate clarity. The court agrees that
4 “standard of care” in itself is a well-defined concept in the
5 realm of professional negligence. The standard of care “requires
6 that medical service providers exercise that degree of skill,
7 knowledge and care ordinarily possessed and exercised by members
8 of their profession under similar circumstances.” Barris v.

9 County of Los Angeles, 20 Cal. 4th 101, 108 (1999).

10 However, far from clarifying the statutory prohibition,

11 the inclusion of the term “standard of care” only serves to

12 further confuse the reader. Under the language of AB 2089, to

13 qualify as “misinformation,” the information must be

14 “contradicted by contemporary scientific consensus contrary to

15 the standard of care.” Cal. Bus. & Prof. Code § 2270. Put

16 simply, this provision is grammatically incoherent. While

17 “statutes need not be written with ‘mathematical’ precision, they

18 must be intelligible.” Valle del Sol, 732 F.3d at 1020 (quoting

19 Forbes, 236 F.3d at 1011) (alterations adopted). It is

20 impossible to parse the sentence and understand the relationship

21 between the two clauses--“contradicted by contemporary scientific

22 consensus” and “contrary to the standard of care.”

23 One possible reading, as defendants argue, is that the

24 two elements are entirely separate requirements that each modify

25 the word “information.” See also McDonald, 2022 WL 18145254, at

26 *7 (adopting this construction). However, this interpretation is

27 hard to justify. If the Legislature meant to create two separate

28 requirements, surely it would have indicated as such--for

25
 Case 2:22-cv-01980-WBS-AC Document 35 Filed 01/25/23 Page 26 of 30

1 example, by separating the two clauses with the word “and,” or at

2 least with a comma. Further, the concept of “standard of care”

3 pertains to the nature and quality of treatment that doctors
4 provide or fail to provide. It is thus difficult to accept
5 defendants’ contention that the term “standard of care” modifies
6 the word “information.” By its very nature, the standard of care
7 applies to care, not information. See Alef v. Alta Bates Hosp.,
8 5 Cal. App. 4th 208, 215 (1992) (the standard of care determines

9 “the minimum level of care to which the patient is entitled”)

10 (emphasis added).9

11 Another equally plausible (or perhaps equally

12 implausible) interpretation is that any time a doctor’s conduct

13 contradicts the scientific consensus, it is therefore contrary to

14 the standard of care. Such a reading would distort the existing

15 meaning of the term “standard of care” by creating an additional

16 statutory definition in the context of COVID-19.

17 Even if the court adopted defendants’ interpretation,

18 the mere inclusion of an entirely separate element does not

19 resolve the definition’s vagueness. The term “standard of care”

20 fails to provide additional context in which to understand the

21 meaning of the term “scientific consensus.” See Gammoh, 395 F.3d

22
9 The provision of AB 2098 stating that misinformation or
23 disinformation must be conveyed “in the form of treatment or
advice” is confusing for the same reason. See Cal. Bus. & Prof.
24 Code § 2270(b)(3). A doctor’s advice might suggest a particular
course of action or treatment (e.g., “you should not get the
25 vaccine”). This advice is distinct from any information that
26 might be conveyed to a patient in conjunction with the advice
(e.g., “scientific studies show that the vaccine carries a risk
27 of health complications for patients in your situation”). The
statute improperly conflates “information” with “advice” or
28 “treatment.”
26
 Case 2:22-cv-01980-WBS-AC Document 35 Filed 01/25/23 Page 27 of 30

1 at 1120. More importantly, defendants’ interpretation does

2 nothing to address the chilling effect caused by the statute’s

3 unclear phrasing and structure. See Holder, 561 U.S. at 19 (“a
4 more stringent vagueness test” applies when the challenged
5 statute chills First Amendment speech). As it stands, doctors
6 reading the statute have no assurance that the statute will be
7 interpreted by courts or applied by the Boards consistently with
8 defendants’ proposed interpretation.

9 C. “False Information”
10 Defendants also argue that the inclusion of the term

11 “false information” as a separate element further clarifies the

12 definition, or at least provides truthfulness as a defense. (See

13 Høeg Opp’n at 21-22; Hoang Opp’n at 21-22.) See also McDonald,

14 2022 WL 18145254, at *7. While this reasoning may appear sound

15 at first, drawing a line between what is true and what is settled

16 by scientific consensus is difficult, if not impossible. The

17 term “scientific consensus” implies that the object of consensus

18 is provable or true in some manner. This is evident in the

19 examples of “consensus” given by defendants--that apples contain

20 sugar, that measles is caused by a virus, and that Down’s

21 syndrome is caused by a chromosomal abnormality. (See Høeg Opp’n

22 at 21; Hoang Opp’n at 21.) These propositions are so universally

23 agreed upon that they are considered factual. It is hard to

24 imagine a scenario in which the Boards consider a proposition to

25 be settled by the scientific consensus, yet not also “true.”

26 Moreover, as discussed above, because COVID-19 is such

27 a new and evolving area of scientific study, it may be hard to

28 determine which scientific conclusions are “false” at a given

27
 Case 2:22-cv-01980-WBS-AC Document 35 Filed 01/25/23 Page 28 of 30

1 point in time. The term “false information” thus fails to cure

2 the provision’s vagueness.10

3 D. Defendants’ Proposed Construction
4 Defendants argue that even if the statutory text is
5 unclear, the court should adopt the “narrower construction” they
6 propose--namely that the definition of “misinformation” contains
7 three separate requirements: (1) false information, (2) that is
8 contradicted by contemporary scientific consensus, and (3) that

9 is contrary to the standard of care. (See Høeg Opp’n at 20;

10 Hoang Opp’n at 20.) See also McDonald, 2022 WL 18145254, at *7

11 (adopting this construction of the statute). While the court

12 must “consider any limiting construction that a state court or

13 enforcement agency has proffered,” CPR for Skid Row v. City of

14 Los Angeles, 779 F.3d 1098, 1103 (9th Cir. 2015) (quoting Hoffman

15 Estates, 455 U.S. at 494 n.5), what defendants propose is not a

16 narrowing or limiting construction at all. Rather, the proposed

17 construction would require the court to essentially “[r]ewrite[e]

18 the statute.” See Valle del Sol, 732 F.3d at 1021. This “is a

19 job for the [California] legislature, if it is so inclined, and

20 not for this court.” See id.

21 Because the definition of misinformation “fails to

22 provide a person of ordinary intelligence fair notice of what is

23 prohibited, [and] is so standardless that it authorizes or

24 encourages seriously discriminatory enforcement,” Williams, 553

25 10 The McDonald court noted that “scienter requirements

26 alleviate vagueness concerns.” See Gonzales, 550 U.S. at 149.
While the definition of “disinformation” includes a scienter
27 requirement, there is no such requirement in the definition of
“misinformation,” which is at issue here. See Cal. Bus. & Prof.
28 Code §§ 2270(b)(2), (b)(4).
28
 Case 2:22-cv-01980-WBS-AC Document 35 Filed 01/25/23 Page 29 of 30

1 U.S. at 304, the provision is unconstitutionally vague.

2 Accordingly, the court concludes that plaintiffs have

3 demonstrated a likelihood of success on the merits of their
4 vagueness challenges.11
5 V. Non-Merits Factors
6 In addition to establishing a likelihood of success on
7 the merits, plaintiffs must establish that they are likely to
8 suffer irreparable harm in the absence of preliminary relief;

9 that the balance of equities tips in their favor; and that an

10 injunction is in the public interest. Winter, 555 U.S. at 20.
11 “[B]y establishing a likelihood that [the challenged

12 law] violates the U.S. Constitution, [p]laintiffs have also

13 established that both the public interest and the balance of the

14 equities favor a preliminary injunction.” Ariz. Dream Act Coal.

15 v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014). The plaintiffs

16 have thus established the elements necessary to obtain a

17 preliminary injunction.

18 IT IS THEREFORE ORDERED that plaintiffs’ motions for

19 preliminary injunction (Høeg Docket No. 5; Hoang Docket No. 4)

20 be, and the same hereby are, GRANTED. Pending final resolution

21 of this action, defendants, their agents and employees, all

22 persons or entities in privity with them, and anyone acting in

23 concert with them are hereby ENJOINED from enforcing Cal. Bus. &

24 Prof. Code § 2270 as against plaintiffs, plaintiffs’ members, and

25 all persons represented by plaintiffs.

26 11 Because plaintiffs have established a likelihood of

27 success on the grounds of their Fourteenth Amendment vagueness
challenges, the court need not address the merits of their First
28 Amendment arguments.
29
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1 Dated: January 25, 2023

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