A Koch-funded legal group is suing the state of California to protect the medical licenses of doctors who promote quack cures for Covid-19.
The New Civil Liberties Alliance (NCLA), a right-wing litigation operation funded in large part by oil billionaire and industrialist Charles Koch, is behind the latest lawsuit. In 2021, the group received more than $1 million from Stand Together Fellowships, formerly the Charles Koch Institute — the same amount it received in 2020 — and $15,418 from the Charles Koch Foundation. In addition, DonorsTrust, the preferred spending conduit of Koch network donors, gave NCLA just over $1 million in 2021.
As the Center for Media and Democracy (CMD) previously reported, NCLA has been representing prominent purveyors of Covid-related misinformation in a lawsuit against the Biden administration. The complaint in Missouri et al. v. Biden et al. alleges that the federal government coerced and colluded with social media companies to censor misinformation on their platforms in violation of the First Amendment freedom of speech rights of social media users to post whatever they like, regardless of accuracy, scientific facts, or risks to public health.
Now NCLA is involved in a new lawsuit targeting Assembly Bill 2098 (AB 2098), a California statute aimed at protecting patients from doctors who spread misinformation about the coronavirus. The group is once again providing pro bono representation to medical professionals with views about Covid that are far outside the mainstream, asking the U.S. District Court for the Eastern District of California to prevent the law from taking effect on Jan. 1, 2023.
Throughout the pandemic, a number of doctors and other medical experts have leveraged their credentials to promote misinformation and build large social media followings, styling themselves as bold whistleblowers challenging a tyrannical medical establishment. Many of these professionals have been promoted by the political Right, particularly business-aligned groups like those in Charles Koch’s influence network that oppose public health measures and workplace safety requirements for businesses. NCLA’s efforts in California highlight the trend.
Addressing the Problem
The dissemination of false information has caused immense harm throughout the pandemic, contributing to the deaths of more than a million Americans and the suffering of millions more. Misinformation has been weaponized by conservative politicians, pundits, and right-wing business interests to politicize the crisis and mobilize opposition to public health measures.
At the same time, the pandemic has prompted a number of medical professionals to cash in on their credentials. For example, America’s Frontline Doctors, a right-wing physicians’ group founded in 2020 and backed by the billionaire-funded Tea Party Patriots Foundation, has promoted misinformation about the virus, masks, and vaccines while simultaneously profiting from online consultations and the sale of quack Covid treatments like Ivermectin and Hydroxychloroquine.
Similarly, Dr. Joseph Mercola, a Florida-based osteopathic physician who has been getting millions of website views every month, has made windfall profits pushing vaccine misinformation while selling his own supplements and consultations. In August, The New York Times covered Mercola, calling him a “misinformation superspreader.”
The trend has alarmed medical experts like Dr. Nick Sawyer, an emergency physician in Sacramento and executive director of a group called No License For Disinformation (NLFD), which seeks to strip doctors who promote Covid-related misinformation of their medical licenses.
“By failing to inform patients about the highest-quality, most up-to-date clinical studies, licensed doctors who prescribe Ivermectin or Hydroxychloroquine for Covid-19 put patients at risk by treating without providing fully informed consent,” Sawyer told CMD.
While Republican-led states have sought to protect doctors who prescribe quack Covid treatments, California became the first to try to address the problem. AB 2098, which Democratic Gov. Gavin Newsom signed in September, designates the dissemination of false information related to SARS-CoV-2 — defined in the bill as information that “is contradicted by contemporary scientific consensus contrary to the standard of care” — as unprofessional conduct for medical professionals that can lead to the revocation of their license to practice.
While those opposed to the legislation contend that it will have a chilling effect on doctors and prevent them from innovating with treatments, AB 2098 does not necessarily require punishment. It leaves such determinations to the state’s Medical Board and allows doctors charged with spreading misinformation to challenge its decisions. In essence, the new law simply empowers the Medical Board to take action.
The Latest Case
Høeg, et al. v. Newsom, et al. is the second suit NCLA has gotten involved in to protect purveyors of Covid-related misinformation. Founded by a former in-house counsel for Koch Industries, the group has worked on behalf of other Koch-funded organizations to fight what it views as an overreaching and “unconstitutional administrative state within our U.S. government.”
In Høeg, NCLA argues that the new law in California violates both physicians’ First Amendment rights to free speech and their Fourteenth Amendment rights to due process given the vagueness in how the legislation is written. The complaint argues that the law “impedes [doctors’] ability to communicate with their patients in the course of treatment” and that there is no way to define “scientific consensus.”
“No one can know, at any given time, the ‘consensus’ of doctors and scientists on various matters related to prevention and treatment of Covid-19,” the complaint alleges. “And even if such a poll could theoretically be taken, who would qualify to be polled? Only those doctors treating Covid-19 patients? All doctors and scientists, or only those in certain fields?”
Arthur Caplan, a professor and medical ethics expert who is the founding head of the Division of Medical Ethics at New York University Grossman School of Medicine in New York City, told CMD that he is unpersuaded by the suit’s claims about scientific consensus. Standards in medicine are “set by professional groups” like the California chapters of the American Academy of Pediatrics and the Infectious Disease Society of America, he explains, adding that “proven efficacy” is what matters.
“This notion that there’s no such thing as false information or disinformation—that it’s just opinions — I think is ridiculous,” Caplan maintains. “It flies in the face of what makes science science, which is that people come to agreement on what’s true and then show that it’s true by putting it into practice, meaning preventing infections or healing people, relieving their symptoms.”
“In medicine, you know, the real test is: Can you make somebody better? Can you prevent people from getting sick?” he adds. “It’s obvious that masks and vaccines, ventilation, protective gear, antibodies all do these things; put them to the test, the data is there. So I approve of the state saying, ‘We’re going to try and punish misinformers because they really harm the public.’”
Caplan is also unpersuaded by NCLA’s free speech arguments. As an individual, “you’re free to say whatever you want,” he points out. “But you can’t say it as a doctor; you can’t say it as a nurse. You can’t say it as medical opinion if it’s known to be outright false. So yes, you could say that the Earth is flat, but I don’t think you’re going to get admitted to the American Geographical Association or get to work at NASA [if you do].”
Sawyer, the NLFD doctor who testified before the California State Assembly prior to the passage of the new law, made a similar point.
What medical professionals who spread misinformation are doing is not about free speech, he says, it’s about action. “If a mechanic told you to put sugar in your gas tank you’d want the California Department of Consumer Affairs to do something about it, and they would. That’s why we have laws — to protect the public from dangerous professionals.”
Misinformation Professionals
The medical professionals NCLA is representing — Tracy Beth Høeg, Ram Duriseti, Aaron Kheriaty, Pete Mazolewski, and Azadeh Khatibi — have expressed a range of views that run counter to mainstream medical consensus on Covid, from opposing mitigation measures to promoting vaccine skepticism.
Høeg is part of a group of medical professionals behind a controversial, error-ridden toolkit called the Urgency of Normal, which is designed to help parents push back against mask requirements in schools. Other medical experts have criticized the kit for promoting inaccuracies such as that unvaccinated children never experience anything worse than “flu-like” symptoms when they get Covid.
Florida Gov. Ron DeSantis has appointed Høeg to a new “Public Health Integrity Committee” overseen by Surgeon General Joseph Ladapo. In October, Lapado faced swift backlash from public health experts for issuing guidance recommending against vaccination for young men based on a widely rebuked state analysis.
Like Ladapo, Høeg has encouraged vaccine skepticism and promoted anti-vaccine narratives. While she did offer mild criticism of the Florida analysis, she said it should not be “dismissed” and has hyped the risk of myocarditis in adolescent males receiving the mRNA jabs, suggesting that natural immunity from infection be explored as a supplement to a single dose of the vaccine. Research has actually shown that the risk of myocarditis from infection is higher than the risk from the vaccine, and the condition is generally more serious with infection, as Dr. Dan Wilson, a molecular biologist with a YouTube channel called Debunk the Funk, explained in an earlier CMD article.
This month, the British Medical Journal published a paper co-written by Høeg and fellow Urgency of Normal member Vinay Prasad calling university vaccine booster mandates unethical, arguing that they “are expected to cause a net harm due to myopericarditis.”
An oncologist and associate professor at the University of California San Francisco, Prasad has made a name for himself during the pandemic as a merchant of doubt, peddling misleading claims about Covid by overstating the risk of vaccines to young people and understating the risks of contracting the virus. He has also made outlandish claims about pandemic mitigation efforts, invoking Nazi Germany and suggesting that public health measures to mitigate the virus would lead to fascism.
While Prasad identifies as a “liberal,” he cross-publishes a blog with the Brownstone Institute, a right-wing dark money group founded by neo-confederate and child labor advocate Jeffrey A. Tucker, who is the former editorial director of the American Institute for Economic Research (AIER), a libertarian think tank that has received funding from Koch’s political network. From its inception in 2021, Brownstone billed itself as the “spiritual child of the Great Barrington Declaration,” an influential open letter signed at an AIER conference in October 2020 that called on governments to reject large-scale public health measures in response to Covid. The group has been a consistent source of pandemic misinformation ever since. One of Brownstone’s scholars, Paul Alexander, a former Trump administration science adviser who advocated for mass infection, recently called to hang the politicians and public health officials that sought to combat the pandemic.
In 2017, while at the Oregon Health and Science University, Prasad was awarded a $2-million grant from Arnold Ventures, a charitable fund set up by ex-Enron hedge fund billionaire John D. Arnold, for a three-year project to identify and reduce low-value healthcare as a way to cut medical costs. Arnold Ventures also funds Brown University economics professor Emily Oster’s Covid-19 School Data Hub, an anti-school closure research effort.
Reviewing the recent Høeg and Prasad paper for CMD, Wilson called it “garbage,” noting, “they invoke Paul Offit, who categorically disagrees with them and considers Covid vaccines to be a three-dose course for all who are eligible.”
“They focus on the ‘number needed to vaccinate’ figure while ignoring the raw difference in hospitalizations and deaths between vaccinated and unvaccinated groups,” he explains. “Their myocarditis paragraph doesn’t even attempt to compare this risk following vaccination to the risk involved with being infected.”
A New York Times story recently mentioned that Høeg, “a fierce critic of school masking,” cast doubt on the accuracy of a study that found masking requirements reduced Covid transmission in Boston schools. She also took her criticism to Twitter, but experts CMD spoke with said her critique can’t be taken seriously. Seth J. Prins, an assistant professor of epidemiology and sociomedical sciences at Columbia University, called it “not a serious scientific comment” and “frankly sort of embarrassing.”
“What Høeg is doing here is ideological, not scientific,” Prins told CMD. “Saying ‘There must be some confounders. I’m just not sure what they are’ is like saying ‘This study must be wrong. I just don’t know why.’”
Prins explained that the Boston experiment was sound, relying on a widely used design employed when randomization isn’t possible and that to his eye, the authors of the study had done their due diligence.
“The fact that case counts were changing before the intervention isn’t relevant,” Prins told CMD. “The authors tested a ‘parallel trends’ assumption precisely to address this and found no evidence the assumption was violated. Høeg either doesn’t understand basic quasi-experimental methods or is willing to pretend not to for ideological reasons.”
Ram Duriseti, another plaintiff in the California lawsuit, is a physician-scientist at Stanford Health and General Emergency Medicine with expertise in computational modeling in medical decision-making. A member of Urgency of Normal, he has gone on record opposing N95 masks for children, claiming that they impede breathing and there is little evidence to support the idea that masking curtails community transmission. He also penned an op-ed with Høeg arguing that the practice of testing asymptomatic children for Covid is harmful.
Aaron Kheriaty, a third plaintiff in the case, is a psychiatrist who lost his job at the University of California Irvine for his refusal to get vaccinated. He argued that his “natural immunity” should suffice. In a Twitter post last year, Kheriaty claimed there was “no such thing as mild myocarditis” and compared the condition to a heart attack. When the Associated Press fact-checked the claim, it reported that, unlike a heart attack, myocarditis is indeed often mild and reversible.
In January, Kheriaty and a co-author wrote in an op-ed for Fox News “that the scientific evidence does not favor vaccination — nor warrant coercive mandates or restrictions — for those with natural (infection-induced) immunity.” Later that month, he spoke at the anti-vaccine Defeat the Mandates rally in Washington, D.C. The following day he participated in Sen. Ron Johnson’s notorious panel discussion on Capitol Hill called Covid-19: A Second Opinion, which featured a number of other prominent spreaders of pandemic-related misinformation.
In November, Kheriaty cast doubt on the safety of the mRNA vaccines for breastfeeding women, accusing the CDC of implementing a policy of “jab first, ask questions later” that he called “completely reckless.”
“We don’t have evidence that it’s harmful, but we also don’t have sufficient evidence that it is safe for your baby, so that’s the first thing that needs to be said when there’s an absence of evidence,” Kheriaty told anti-vaxxer Maryanne Demasi for her substack.
Research has suggested that Covid mRNA vaccines are safe for breastfeeding women, and the CDC currently recommends vaccination for everyone ages six months and older, regardless of whether they are pregnant or breastfeeding.
Kheriaty is also a plaintiff in NCLA’s suit against the Biden administration and a senior scholar at Brownstone.
Pete Mazolewski, the fourth plaintiff, is a California-based surgeon who has espoused views on the pandemic that are outside the mainstream. In September, he told Fox News that masking does not prevent Covid transmission. The CDC and prominent medical organizations like the American Medical Association and the American Academy of Pediatrics all agree that masking reduces the spread of Covid.
Azadeh Khatibi, the fifth plaintiff, is a board-certified physician who has questioned the safety of Covid vaccines and was a vocal opponent of the Biden administration’s vaccine-or-test mandate. She also has a small YouTube channel where she briefly promoted herself as a wellness instructor.
The Legal Team
Like their clients, the attorneys behind the Høeg v. Newsom case also express views of the pandemic that are well outside the mainstream.
Handling the case for NCLA is attorney Jenin Younes, who frequently promotes pandemic-related misinformation — along with purveyors of it — via the Twitter handle @LeftyLockdowns1. She has claimed, for example, that masks cause psychological harm and offer no meaningful benefits. She has also dabbled in anti-vaccine narratives, mocking the number of jabs recommended by public health officials to suggest they are ineffective and suggesting that the most recent bivalent booster shots might be unsafe due to lack of human testing prior to release.
In July, Younes shared a Brownstone article by Tucker, calling it “a chilling account of [former CDC Director Deborah] Birx’s stunning, willful ignorance in pursuing lockdowns & mask mandates to ‘stop the spread.’” In the piece, Tucker writes that “lockdowns”—not the virus itself—”caused immense suffering and continue to roil and wreck the world.”
Younes’ previous work for NCLA has included helping to defeat the Occupational Safety and Health Administration’s vaccine-or-test mandate for large businesses. She is also representing Covid misinformation spreaders in a censorship lawsuit against the Biden administration.
Younes previously worked for AIER and was present at a key meeting between Tucker and biostatistician Martin Kulldorff in August 2020 to discuss strategies for pushing back on lockdowns. The meeting subsequently led to the October 2020 AIER conference at which the signing of the Great Barrington Declaration took place. By extension, it also led to the establishment of the Brownstone Institute.
Younes claims that she is a disaffected liberal who abandoned the Democratic Party due to its Covid response. Prior to this year’s midterms in November, she appeared on Fox News as a former lifelong Democrat who had had a change of heart over the party’s apparent abandonment of small government. Her chyron read: “Switched from Dem to GOP this year,” “civil liberties attorney,” and “writer.” No mention was made of her affiliation with NCLA.
Helping Younes is attorney Laura Powell, who claims to have supported mask mandates in 2020 but today identifies with the Covid minimization community known as Team Reality, which positions itself against Team Apocalypse — meaning anyone who takes Covid seriously. On multiple occasions, she has publicly proclaimed that masks do not work, and like so many other purveyors of Covid misinformation, she has also written for Brownstone, attacking AB2098.