The U.S. Fifth Circuit Court of Appeals recently delivered a landmark decision that an association of doctors can sue three medical certification boards for allegedly censoring the free speech of its physicians on topics ranging from COVID-19 policies to abortion.

The Association of American Physicians and Surgeons Educational Foundation (AAPS) alleges the American Board of Internal Medicine (ABIM), the American Board of Family Medicine, and the American Board of Obstetrics & Gynecology threatened to strip doctors’ certification to practice medicine for speaking critically of the government’s positions on vaccines, lockdowns, mask mandates, and abortion practices. The Appeals Court reversed a lower court ruling that dismissed the case stating the First Amendment grants the AAPS a “right to hear” from “willing speakers” about their opinions. The decision remands the case back to the lower court to allow AAPS a chance to prove its claims.

In AAPS v. ABIM, a three-judge panel unanimously found that the lower court erred in dismissing the case. The Appeals Court ruled that AAPS suffered an “injury-in-fact” to their free speech rights directly traceable to threats from the medical boards, which stated the boards would “neuter” the doctors’ “ability to practice medicine through decertification.” 

According to AAPS’ lawsuit, removing a doctor’s certification is “tantamount to revoking” the doctor’s state medical license, for few hospitals will employ licensed, but uncertified doctors. AAPS contends that the medical boards are attempting to wield “great power” and “chill” the speech of doctors without accountability from the state medical boards.  

The Fifth Circuit agreed noting the First Amendment protects both the right to hear and speak, and silencing a willing speaker creates a “constitutional injury against the hearer.” 

The opinion stated, “AAPS sufficiently alleges an injury-in-fact: that the Board Defendants, through their censorship campaign, deprived AAPS of a ‘willing speaker’ that would have voiced his/her opinions but for the threat of decertification, injuring AAPS’ right to hear.” 

In addition to challenging the medical boards, AAPS’ original lawsuit also named U.S. Homeland Security Secretary Alejandro Mayorkas as a defendant. However, two of the three Appeals Court judges agreed with the lower court and dismissed Secretary Mayorkas from the case. AAPS had alleged that the medical boards colluded with the Biden administration to “promote the administration’s political preferences in exchange for government endorsement of their certifications.” According to the lawsuit, AABS alleged the short-lived Disinformation Governance Board (DGB) under Secretary Mayorkas was also responsible for the collusion and censorship. Even though the DGB was eliminated after a few months of operation in August 2022, AABS stated the medical boards continued with the DGB’s retaliation agenda against disfavored speech. However, the Appeals Court majority ruled that the government’s voluntary elimination of the DGB “mooted” the AAPS’ claims against Secretary Mayorkas. 

Fifth Circuit Judge James Ho, who agreed with the other panel judges on most points, wrote a partial dissent disagreeing that the case is “moot” against the government. Judge Ho noted that ceasing unlawful conduct does not “automatically moot a case,” nor allow a defendant to “avoid accountability,” and does not ensure the “allegedly wrongful behavior” won’t happen again. 

“During oral argument, counsel for the government refused to assure us that [the Department Homeland Security] would neither reconstitute the Board nor replicate its functions through other means,” wrote Judge Ho. “The panel majority there regarded that belated effort as sufficient assurance of mootness. I dissented, noting that our circuit precedent requires greater skepticism than that.” 

As Judge Ho expressed that he is “grateful” the AAPS doctors will get a “full and fair opportunity” to amend their case, he also said doctors can be susceptible to cancel culture and that scientific issues “should remain the subject of open and rigorous discussion—not self-censorship and cancellation.” 

“Our acceptance of diverse viewpoints is what makes this country the most successful in human history,” wrote Judge Ho. “In America, we don’t fear disagreement—we embrace it. We persuade—we don’t punish. We engage in conversation—not cancellation. We know how to disagree with one another without destroying one another.” 

“Intolerance of differing views contradicts our Founding principles,” Judge Ho concluded. 

Liberty Counsel Founder and Chairman Mat Staver said, “Censoring viewpoints offends the First Amendment. Doctors need to feel free to exchange ideas to discover new scientific facts and objectively treat their patients. Cancelling doctors for their opinions hurts the medical profession. Censorship has no place in a free society.”