Supreme Court Justice Clarence Thomas overruled Justice Elena Kagan on Wednesday in a high-profile First Amendment case involving COVID-19 regulations, basketball legend John Stockton, and potential Donald Trump cabinet nominee Robert F. Kennedy, Jr.
Stockton is the lead plaintiff in the fast-paced litigation, which seeks to protect the free speech rights of physicians who, according to the original petition, “speak out against the mainstream Covid narrative.”
The lawsuit was filed in the spring and later dismissed at various stages of the federal system. Using a different procedural vehicle, the plaintiffs were able to promptly file an application for an injunction pending appeal with Kagan in late October.
In late November, the Barack Obama-appointed jurist declined to do so, without saying anything.
Now, an admittedly “long shot” effort to persuade Thomas to overrule his colleague on the bench has paid off, keeping the case alive with the nation’s highest court, at least for the time being.
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Stockton’s attorney discussed the unexpected turn of events.
“I think it is very unusual for a renewed application to be granted and set for a conference,” Richard Jaffe told. “I’d like to think that Justice Thomas understands what a fundamental issue this is and that the Supreme Court needs to tell the country whether there are any limits to medical boards controlling physicians expressing their dissent to government health policies and its view of science.”
In March, the Gonzaga great and others filed a federal lawsuit against Washington Attorney General Robert Ferguson and the executive director of the Washington Medical Commission over sanctions imposed on doctors for their public comments about the pandemic.
Stockton, the NBA’s all-time assists and steals leader and a two-time Hall of Famer, is expected to be the lead plaintiff given his stature and favored son status in the Evergreen State.
The lawsuit claims that, despite “an annual work-related relocation”—Stockton played 19 seasons for the Utah Jazz and made the playoffs every year—he has spent his entire life in Spokane. He retired from the NBA in 2003.
Stockton now hosts a podcast in which he discusses “a wide variety of subjects, including Covid, health policy, individuals’ rights to make their own health and medical decisions, and sports,” according to the lawsuit.
The filing also describes the celebrated point guard as “a vocal advocate against the mainstream Covid narrative.”
One of the physician plaintiffs, retired ophthalmologist Richard Eggleston, was investigated for spreading misinformation about COVID-19 through a series of conservative newspaper columns he wrote. He was charged with professional misconduct in August 2022.
“Eggleston opposes Covid mandates, believes, and opines that the risk benefit profile is unfavorable for some subsets of the population,” according to the complaint. “He advocated for off-label treatments like Ivermectin and opposed the lockdowns.
In his columns, he frequently cites government statistics and offers his thoughts or opinions on their meaning. His views differ from those expressed in the mainstream media.
Another plaintiff, retired physician Thomas T. Siler M.D., “also questioned the Covid narrative core principle” in an online discussion forum, the lawsuit states. The commission conducted a similar investigation and charged him with professional misconduct in 2023.
Other plaintiffs, who are not currently facing formal disciplinary action from the state, claim Washington’s prohibitions on COVID-19 misinformation chill their speech — a legal concept in which individuals or entities refrain from engaging in otherwise protected speech for fear of upsetting the government and being punished.
According to a 20-page lawsuit filed in the United States District Court for the Eastern District of Washington, approximately 60 medical professionals have been investigated, prosecuted, and/or sanctioned under those prohibitions since their implementation in 2021.
“These cases are at least in part based on what in First Amendment parlance is called pure or soapbox speech, meaning written or verbal communications to the public,” according to the complaint.
“Going back seventy-years, every judge and Supreme Court justice who has written on professional soapbox speech has stated that it is fully protected by the First Amendment and/or said that it cannot be the subject of government regulation or restriction.”
The lawsuit seeks a declaratory judgement from the court that the commission’s actions regarding COVID-19 misinformation violate the First Amendment and that all of the plaintiffs have a constitutional “right to express their views and criticisms of the mainstream Covid narrative to the public.”
“[A]ll Washington residents have the First Amendment right to hear the views of the three individually named physician plaintiffs, as well as any Washington licensed physician, even if the viewpoint is not consistent the with public health authorities’ and the Commission’s views on the safety and efficacy of the Covid shots, the use of off-label treatments for Covid and the efficacy of masking, or other Covid related topics,” according to the lawsuit.
The lawsuit also seeks a preliminary and permanent injunction prohibiting the commission from investigating or sanctioning doctors who publicly disseminate COVID-19 misinformation, as well as attorney fees.
In May, the district court denied the motion for a preliminary injunction and dismissed the case. The underlying case was appealed to the United States Court of Appeals for the Ninth Circuit, where briefing is currently underway.
In September, the Ninth Circuit denied a separate but related request to issue an injunction pending appeal.
This denial enabled the current full-court press before the justices.
Following Kagan’s denial, the plaintiffs turned to a justice who they believe has a better track record on First Amendment issues.
In turn, Jaffe asked clerk Scott Harris to resubmit the request to Thomas, who has been generally supportive of free speech doctrine during his tenure on the court, with at least one major exception.
The attorney stated that resubmitting the application was a gamble.
“It is a long shot, but we think the issue is important enough and has national consequences such that we should leave no stone unturned,” Jaffe had told before. “Justice Thomas has a long record of upholding First Amendment rights.
He may decide that he wants the 9th Circuit to weigh in first and reject the renewed application. If so, we return to the 9th Circuit to address the appeal district court’s denial of our preliminary injunction and dismissal of the case.”
Thomas, in fact, determined that the plaintiffs had an issue or issues worth presenting to all of his fellow justices.
The dispute is now set for a conference on January 10, 2025. Four of the nine justices must vote to accept a case before the dispute can be set for oral argument.
The case is stylised as Stockton v. Ferguson.
