Amicus Curiae Brief — John Stockton, et al., Petitioners v. Nick Brown, Attorney General of Washington, et al.

No. 25-606

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IN THE

Supreme Court of the United States

____________________

JOHN STOCKTON, et al.,

Petitioners,

v.

NICK BROWN, in His Official Capacity as Attorney

General of the State of Washington, et al.,

____________________

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

____________________

Brief Amicus Curiae of

America’s Future,

Association of American Physicians

and Surgeons, and

Conservative Legal Defense and

Education Fund

in Support of Petitioners

____________________

RICK BOYER

INTEGRITY LAW FIRM

P.O. Box 10953

Lynchburg, VA 24506

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

Attorneys for Amici Curiae (703) 356-5070

December 29, 2025

wjo@mindspring.com

*Counsel of Record

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . ii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT

I.

WASHINGTON’S MEDICAL CENSORSHIP LAW

DEFIES THIS COURT’S HOLDING IN NIFLA V.

BECERRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II.

THE USE OF OCCUPATIONAL LICENSURE TO

CENSOR SPEECH VIOLATES THE FIRST

AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

ii

TABLE OF AUTHORITIES

Page

CONSTITUTION

Amendment I . . . . . . . . . . . . . . . 4, 6, 8, 13, 18, 21-25

STATE STATUTES

Rev. Code Wash. § 18.130.180 . . . . . . . . . . . . . . . . . 2

CASES

Dent v. West Virginia, 129 U.S. 114 (1889) . . . . . . 18

Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586

(4th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Holder v. Humanitarian Law Project, 561 U.S. 1

(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston, 515 U.S. 557

(1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750

(1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Nat’l Inst. of Family & Life Advocates v. Becerra,

585 U.S. 755 (2018) . . . . . . . . . . . . . . . . . . . 5-7, 13

Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976) . . 22

Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014). . . 6

Riley v. Nat’l Fed’n of Blind, 487 U.S. 781

(1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Rosenberger v. Rector & Visitors of the Univ. of

Va., 515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . 23

Stanley v. Georgia, 394 U.S. 557 (1968) . . . . . . 14-15

Texas v. Johnson, 491 U.S. 397 (1989) . . . . . . . . . 14

Thomas v. Collins, 323 U.S. 516 (1945) . . . . . 22, 26

Tingley v. Ferguson, 47 F.4th 1055 (9th Cir.

2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

W. Va. State Bd. of Educ. v. Barnette, 319 U.S.

624 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iii

United States v. O’Brien, 391 U.S. 367 (1968) . . . 15

United States v. Skrmetti, 605 U.S. 495

(2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Virginia State Bd. of Pharmacy v. Virginia

Citizens Consumer Council, 425 U.S. 748

(1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Younger v. Harris, 401 U.S. 37 (1971). . . . . . . . . 4, 5

MISCELLANEOUS

H. Brueck and A. Haroun, “CDC director says

data ‘suggests that vaccinated people do not

carry the virus,’” Business Insider (Mar. 30,

2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

J. Davis, “Dr. Birx’s Bombshell Vaccine

Admission: I Knew Vaccines Wouldn’t

Protect Against Infection,” Western Journal

(July 25, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

T. Emerson, “The Doctrine of Prior Restraint:

Obscenity and the Arts.” 20 LAW & CONTEMP.

PROBS. 648 (1955) . . . . . . . . . . . . . . . . . . 16, 19-21

FDA, “Understanding Unapproved Use of

Approved Drugs ‘Off Label’” . . . . . . . . . . . . . . . 11

The Founders Constitution (P. Kurland & R.

Lerner eds.) (Univ. of Chicago Press: 1987). . . 21

W. Gelhorn, “Abuse of Occupational Licensing,”

44 U. CHI. L. REV. 1 (1976) . . . . . . . . . . . . . . . . 18

D. Hudson, Jr., “Thomas Emerson,” First

Amendment Center (Jan. 1, 2009) . . . . . . . . . . 19

M. Kleiner, “Reforming Occupational Licensing

Policies” Brookings (Mar. 2015) . . . . . . . . . . . . 17

R. Kry, “The ‘Watchman for Truth’: Professional

Licensing and the First Amendment,” 23

SEATTLE U. L. REV. 885 (2000) . . . . 17, 18, 23, 24

iv

J. Lieberman, “The Tyranny of the Experts: How

Professionals are Closing the Open Society”

(Walker & Co. 1970) . . . . . . . . . . . . . . . . . . . . . 17

K. Liptak and D. Judd, “President Joe Biden

tests positive for Covid-19 again,” CNN (July

30, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

F. Mulraney, “Biden’s latest gaffe as he claims

people won’t get Covid if they’re vaccinated

despite reported breakthrough infections,”

The Sun (July 23, 2021) . . . . . . . . . . . . . . . . . . 12

M. Meyerson, “The Neglected History of the Prior

Restraint Doctrine: Rediscovering the Link

between the First Amendment and the

Separation of Powers,” 34 IND. L. REV. 295

(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

L. Pollak, “Thomas I. Emerson: Pillar of the Bill

of Rights,” 101 YALE L.J. 321 (1991-1992) . . . . 19

J. Sullum, “California Quietly Repeals

Restrictions on Doctors’ COVID-19 Advice,”

Reason (Oct. 11, 2023). . . . . . . . . . . . . . . . . . . . 14

L. Walmsley, “Vaccinated People With

Breakthrough Infections Can Spread The

Delta Variant, CDC Says,” NPR (July 30,

2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

T. Zick, “Professional Rights Speech,” 47 ARIZ.

ST. L.J. 1289 (2015) . . . . . . . . . . . . . . . . . . . . . . 26

INTEREST OF THE AMICI CURIAE1

Amici America’s Future and Conservative Legal

Defense and Education Fund are nonprofit

organizations, exempt from federal income tax under

section 501(c)(3) of the Internal Revenue Code. These

entities, inter alia, participate in the public policy

process, including conducting research, and informing

and educating the public on the proper construction of

state and federal constitutions, as well as statutes

related to the rights of citizens, and questions related

to human and civil rights secured by law.

Amicus Association of American Physicians and

Surgeons (“AAPS”) is a national association of

physicians, founded in 1943. AAPS is dedicated to

protecting the patient-physician relationship and

defending ethical medical freedom, and has been a

litigant in this Court and in other appellate courts.

See, e.g., Ass’n of Am. Physicians & Surgs. v. Mathews,

423 U.S. 975 (1975); Ass’n of Am. Physicians & Surgs.

v. Tex. Med. Bd., 627 F.3d 547 (5th Cir. 2010); Ass’n of

Am. Physicians & Surgs. v. Clinton, 997 F.2d 898 (D.C.

Cir. 1993).

Some of these amici (and CLDEF’s Center for

Medical Freedom) have filed amicus briefs in several

1

It is hereby certified that counsel of record for all parties

received timely notice of the intention to file this brief; that no

counsel for a party authored this brief in whole or in part; and

that no person other than this amicus curiae, its members, or its

counsel made a monetary contribution to its preparation or

submission.

2

other cases involving arbitrary state suppression of

medical and health-related speech.

•

•

•

•

•

•

Storman’s Inc. v. Wiesman, U.S. Supreme Court,

No. 15-862, Brief Amicus Curiae of PAUS, et al.

(Feb. 5, 2016) (Petition);

Welch v. Brown, U.S. Supreme Court, No. 16-845,

Brief Amicus Curiae of AFTAH, et al. (Mar. 2,

2017) (Petition);

Nat’l Inst. of Family & Life Advocates v. Becerra,

U.S. Supreme Court, No. 16-1140, Brief Amicus

Curiae of USJF, et al. (Apr. 20, 2017) (Petition)

and Brief Amicus Curiae of CLDEF, et al. (Jan. 16,

2018) (Merits);

Tingley v. Ferguson, U.S. Supreme Court, No. 22942, Brief Amicus Curiae of America’s Future, et

al. (Apr. 27, 2023) (Petition);

NIFLA v. James, U.S. Court of Appeals for the

Second Circuit, No. 24-2481, Brief Amicus Curiae

of America’s Future, et al. (Mar. 24, 2024); and

Chiles v. Salazar, U.S. Supreme Court, No. 24-539,

Brief Amicus Curiae of America’s Future, et al.

(June 13, 2024) (Merits).

STATEMENT OF THE CASE

This case involves a facial and as-applied challenge

to Rev. Code Wash. § 18.130.180 subsections (1) and

(13), the state’s “unprofessional conduct” rule for

physicians. Stockton v. Ferguson, 2024 U.S. Dist.

LEXIS 92004 at *2-3 (E.D. Wash. 2024) (“Stockton I”).

The challenged subsections relate to allegedly

“dishonest” conduct by members of the medical

profession. Under these provisions, the Commission

3

investigates complaints “alleging ‘moral turpitude,

dishonesty, or corruption relating to the practice of’

medicine, and ‘[m]isrepresentation or fraud in any

aspect of ’ the practice of medicine.” Id. at *5.

Petitioners also

challenge disciplinary

investigations under the statute by the Washington

Medical Commission (“the Commission”) against

physicians Richard Eggleston and Thomas Siler. The

Commission alleges that “Dr. Eggleston’s articles

minimized deaths from the SARS-CoV-2 virus,

incorrectly asserted that PCR tests for a COVID

diagnosis are inaccurate, and falsely stated that

COVID-19 vaccines and mRNA vaccines are harmful

or ineffective and that ivermectin is a safe and

effective treatment for COVID-19.” It also alleges that

“Dr. Siler wrote false statements about the risks of

contracting COVID-19, the effectiveness of

hydroxychloroquine and ivermectin as treatments for

COVID-19, the transmissibility of COVID-19 from

children, and the safety of COVID-19 vaccines.”

Stockton I at *7.

Petitioners are physicians Eggleston and Siler,

retired physician Dr. Daniel Moynihan, as well as

John and Jane Does 1-50, who are “licensed

Washington physicians currently subject to the

Commission’s investigations and prosecutions,” John

Stockton, a former NBA star and member of the

Basketball Hall of Fame, who is now a podcaster and

critic of some COVID vaccines and treatments favored

by the Commission, and Children’s Health Defense,

formerly headed by now-Health and Human Services

Secretary Robert F. Kennedy, Jr. Id. at *3-4.

4

Respondents are Nick Brown, the Washington

Attorney General, and Kyle Karinen, the

Commission’s executive director. Id. at *4.

Petitioners sought a preliminary injunction in the

Eastern District of Washington. Respondents moved

to dismiss. The district court granted the motion to

dismiss on grounds of ripeness and the doctrine of

federal court abstention under Younger v. Harris, 401

U.S. 37 (1971).

The district court determined that Petitioners’

request to enjoin future investigations and disciplinary

actions under the unprofessional conduct law were not

yet ripe. It further noted that Doctors Eggleston and

Siler had continued to make statements advocating

their proposed COVID treatments despite the

investigation, and therefore their speech was not

“chilled.” Stockton I at *10-11. The district court then

defined the administrative investigations as “state

proceedings” and concluded that “[u]nder Younger, a

court may not hear claims for equitable relief while

state proceedings are pending.” Id. at *12. The court

further noted its belief that state courts could

adequately adjudicate any federal constitutional

challenges once the administrative investigations

concluded. Id. at *13. Finally, the court ruled that

even if abstention did not apply, it could not adjudicate

Petitioners’ First Amendment claims, because “the

Commission may fully regulate professional conduct of

physicians licensed to practice in this state. States

may regulate professional conduct, even though that

conduct incidentally involves speech.” Id. at *15.

5

The Ninth Circuit affirmed the dismissal.

Stockton v. Brown, 152 F.4th 1124 (9th Cir. 2025)

(“Stockton II”). The Ninth Circuit agreed with the

district court that Younger abstention barred

consideration of the claims of doctors Eggleston and

Siler and Does 1-50, because it involved an ongoing

state proceeding. Stockton II at 1136-37. Although

Younger did not bar consideration of the other

Petitioners’ claims since they were not the subjects of

administrative proceedings, the claims were

nonetheless unripe as there was no evidence that the

speech of other Petitioners had yet been chilled. Id. at

1142, 1145. The Ninth Circuit also rejected claims

based on “listener standing,” ruling that “[t]he right to

receive speech is entirely derivative of the rights of the

speaker.” Id. at 1147 (internal quotation omitted).

SUMMARY OF ARGUMENT

These amici believe that all Petitioners have

established standing and concur with Petitioners’

arguments that Younger abstention is inappropriate

particularly where, as here, the state Court of Appeals

has already declared the Commission’s “unprofessional

conduct” speech regulations unconstitutional. The

claim that speech is not being chilled by the state is

particularly unpersuasive. This conclusion ignores

both allegations made in the complaint and argument

reiterated during this litigation.

These amici believe that Washington’s medical

censorship law flagrantly defies this court’s clear

direction contained in NIFLA v. Becerra, for the

reasons set out in Section I, infra. The use of

6

occupational licensure to censor speech is a relatively

modern development, which undermines the free

marketplace of ideas necessary for medicine to advance

and grow. It violates the First Amendment, for the

reasons set out in Section II, infra.

It is all too clear that the rulings of the lower

courts evidence their desire to allow to stand a ruling

supportive of a powerful medical establishment, while

avoiding a decision on the merits where each day new

revelations demonstrate the correctness of the speech

which is being suppressed. The question presented

here is one of the most important free speech issues of

the day — whether states may rely on the “police

power” of occupational licensing to crush dissenting

views to prop up the state’s viewpoint on disputed

matters of health and wellness.

ARGUMENT

I.

WASHINGTON’S MEDICAL CENSORSHIP

LAW DEFIES THIS COURT’S HOLDING IN

NIFLA V. BECERRA.

In Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014),

the Ninth Circuit invented a category generally known

as “professional speech,” and declared it to be subject

to a less-rigorous, somewhat deferential, “intermediate

scrutiny” standard of review. Courts in the Ninth

Circuit, including the courts below in this case,

continue to default reflexively to Pickup to allow

censorship of speech occurring within a professional

context. But in 2018, this Court resoundingly rejected

the rationale of Pickup. In Nat’l Inst. of Family & Life

7

Advocates v. Becerra, 585 U.S. 755, 766-68 (2018)

(“NIFLA”), this Court flatly rejected the creation of a

lesser protected category of “professional speech.” This

Court rebuked courts which created a “professional

speech” category out of whole cloth designed to reduce

the degree of protection provided to it:

Some Courts of Appeals have recognized

“professional speech” as a separate category of

speech that is subject to different rules.... So

defined, these courts except professional

speech from the rule that content-based

regulations of speech are subject to strict

scrutiny....

But this Court has not

recognized “professional speech” as a

separate category of speech. Speech is not

unprotected merely because it is uttered by

“professionals”.... This Court’s precedents do

not recognize such a tradition for a category

called “professional speech.” [Id. at 767-68

(cleaned up) (emphasis added).]

But the Ninth Circuit appears to have rejected this

Court’s warnings in NIFLA, and even its own guidance

that “‘public dialogue’ by a professional ... receives the

greatest First Amendment protection.” Tingley v.

Ferguson, 47 F.4th 1055, 1072-73 (9th Cir. 2022). This

time, the circuit court simply uses the expedient of

“ripeness” to greenlight Washington’s infringement of

speech, as if deciding not to decide were not a decision

in favor of the state’s censorship.

This Court has long been clear that if “conduct”

consists of speech then it is protected by the First

8

Amendment’s free speech guarantee. If “the conduct

triggering coverage under the statute consists of

communicating a message,” and if “Plaintiffs want to

speak ... and whether they may do so under [the

statute] depends on what they say,” then First

Amendment protection applies.

Holder v.

Humanitarian Law Project, 561 U.S. 1, 27 (2010). The

clear purpose of Washington’s medical censorship law

is still the suppression of state-disfavored speech.

It has become painfully clear, at least since the

COVID pandemic, and probably before, that medical

and health related speech has become an overtly

political battlefield. This has been true in multiple

contexts, particularly COVID, “conversion therapy,”

and “transgender” standards of care.

Without

question, the state of Washington has been a

belligerent in that battle. It first banned “conversion

therapy” in 2018. Tingley at 1064. Now it has passed

its medical censorship law. It has defended both all

the way to this Court.

This Court has already heard argument on October

7, 2025, in Chiles v. Salazar, examining Colorado’s

blatantly viewpoint-discriminatory “Minor Therapy

Conversion Law,” which expressly permits counselors

to affirm a child’s gender transition, while punishing

counselors who help a client desiring to change samesex attraction. That Colorado law is similar to the

Washington law upheld by the Ninth Circuit in

Tingley, where this Court could have granted certiorari

to resolve the issue, but declined on December 11,

2023. When this Court denies review in such cases,

allowing state censorship to be sanctioned by lower

9

courts, it allows powerful financial interests whose

arguments cannot prevail in the court of public

opinion, to misuse of the force of the state to suppress

opposing views. When such issues are allowed to go

unresolved by this Court, that delay causes real

injuries not limited to Petitioners.

For example, with regard to politicized cases

regarding “transgender” treatments, the Fourth

Circuit blindly accepted the dictates of the politically

powerful World Professional Association for

Transgender Health (“WPATH”) “Standards of Care

for the Health of Transsexual, Transgender, and

Gender Nonconforming People” as presenting “the

consensus approach of the medical and mental health

community. Grimm v. Gloucester Cty. Sch. Bd., 972

F.3d 586, 595 (4th Cir. 2020). Yet as Justice Thomas

has noted, “...WPATH’s lodestar is ideology, not

science.... For example, newly released documents

suggest that WPATH tailored its Standards of Care in

part to achieve legal and political objectives.... Worse,

recent reporting has exposed that WPATH changed its

medical guidance to accommodate external political

pressure.” United States v. Skrmetti, 605 U.S. 495,

545-46 (2025) (Thomas, J., concurring) (internal

quotations omitted). State medical boards can be

subject to improper ideological or financial pressures

when they dictate “standards of care” in hotly disputed

areas of medicine and squelch the type of free speech

and open discussion necessary for medicine to advance.

The practice of getting a “second opinion” has long

been a foundational principle of medicine. When

supposed minimum “standards of care” are rigorously

10

applied, the second opinion will always be the same as

the first, rendering them redundant and meaningless.

Physicians are required to ignore their clinical

experience in favor of decrees issued by medical

regulators who may have political or financial agendas

other than public health. Such state control of the

practice of medicine often muzzles the most creative in

the profession and does great disservice to patients.

As with “conversion therapy,” here Washington

seeks to suppress all views other than its own on

issues of COVID diagnosis and treatment, as

Petitioners note:

The WMC [Commission] supports the

position taken by the Federation of State

Medical Boards (FSMB) regarding COVID-19

vaccine misinformation. The WMC does not

limit this perspective to vaccines but broadly

applies this standard to all misinformation

regarding COVID-19 treatments and

preventive measures such as masking.

Physicians and Physician Assistants, who

generate and spread COVID-19

misinformation, or disinformation, erode the

public trust in the medical profession and

endanger patients....

The WMC bases

masking and vaccination safety on expert

recommendations from the U.S. Centers for

Disease Control and Prevention (CDC) and the

Washington State Department of Health

(DOH). The WMC relies on the U.S Food and

Drug Administration approval of medications

to treat COVID-19 to be the standard of care.

11

While not an exhaustive list, the public and

practitioners should take note:

• Ivermectin is not FDA approved for use

in treating or preventing COVID-19

• Hydroxychloroquine (Chloroquine) is not

FDA approved for use in treating or

preventing COVID-19.2

Here, Washington State tries to give the

impression that, unless a drug is “approved for use in

treating or preventing COVID-19,” it is dangerous to

prescribe. However, the FDA advises the public that:

“once the FDA approves a drug, healthcare providers

generally may prescribe the drug for an unapproved

use when they judge that it is medically appropriate

for their patient.”3

If there is any question which speech has

Washington’s seal of approval, the state goes on to

threaten: “The WMC will scrutinize any complaints

received about practitioners granting exemptions to

vaccination or masks that are not based in established

science or verifiable fact....

The public and

practitioners are encouraged to use the WMC

complaint forms when they believe the standard of

care has been breached.” Pet. at 2-3 (quoting

2

Petition for Certiorari at 2-3 (“Pet.”) (quoting Washington

Medical Commission, “COVID-19 Misinformation Position

Statement” (Sept. 22, 2021)).

3

FDA, “Understanding Unapproved Use of Approved Drugs ‘Off

Label.’”

12

Washington Medical Commission, “COVID-19

Misinformation Position Statement” (Sept. 22, 2021)).

Yet the CDC has been wrong about COVID more

than it has been right. In March of 2021, CDC

Director Rochelle Walensky glibly stated, “Our data

from the CDC today suggests that vaccinated people do

not carry the virus, don’t get sick.”4 In July 2021,

President Biden continued to repeat the claim that

“[y]ou’re not going to get COVID if you have these

vaccinations.”5

Later, left without explanation when the “fullyvaccinated” Walensky contracted both an initial case

and a “rebound” case of the virus the “vaccine” was

supposed to prevent, the CDC admitted that the

“vaccine” neither prevents contracting or transmitting

the disease.6 The “fully-vaccinated” President Joe

Biden also contracted both an initial case and a

4

H. Brueck and A. Haroun, “CDC director says data ‘suggests

that vaccinated people do not carry the virus,’” Business Insider

(Mar. 30, 2021).

5

F. Mulraney, “Biden’s latest gaffe as he claims people won’t get

Covid if they’re vaccinated despite reported breakthrough

infections,” The Sun (July 23, 2021).

6

See, e.g., Press Release, “CDC Director Tests Positive For

COVID-19,” Centers for Disease Control (Oct. 22, 2022) (“Last

night, CDC Director Dr. Rochelle Walensky tested positive for

COVID-19. She is up to date with her vaccines”); L. Walmsley,

“Vaccinated People With Breakthrough Infections Can Spread

The Delta Variant, CDC Says,” NPR (July 30, 2021).

13

rebound case.7 Indeed, almost as soon as Biden

promised that vaccination equals immunity, the CDC

admitted that its own study found that three-quarters

of victims in one COVID outbreak had been

vaccinated.8 The study further “found no significant

difference in the viral load present in the

breakthrough infections occurring in fully vaccinated

people and the other cases, suggesting the viral load of

vaccinated and unvaccinated persons infected with the

coronavirus is similar,” so even the argument that the

“vaccine” reduces the severity of the illness has been

destroyed. Id.

Within a year of the CDC’s admission, former

President Trump’s COVID response coordinator Dr.

Deborah Birx acknowledged that the government

“scientific” community had willfully fed the public

COVID misinformation. “I knew these vaccines were

not going to protect against infection,” she conceded.

“I think we overplayed the vaccines….”9

But as long as Petitioners tailor their speech to the

CDC’s views on a given day, Washington State is

satisfied — however erroneous that speech may be.

And district courts in the Ninth Circuit continue to

reject this Court’s warnings in NIFLA that the First

7

K. Liptak and D. Judd, “President Joe Biden tests positive for

Covid-19 again,” CNN (July 30, 2022).

8

9

L. Wamsley, supra.

J. Davis, “Dr. Birx’s Bombshell Vaccine Admission: I Knew

Vaccines Wouldn’t Protect Against Infection,” Western Journal

(July 25, 2022).

14

Amendment carries no “exception” for “professional”

speech. As the district court put it, “the Commission

may fully regulate professional conduct of physicians

licensed to practice in this state ... even though that

conduct incidentally involves speech.” Stockton I at

*15 (citing Tingley at 1074).

Washington’s law challenged here is even more

destructive to free speech than California’s AB 2098

“medical misinformation” law which, after receiving a

frosty reception from a Ninth Circuit panel, the state

“quietly” repealed in late 2023. California Deputy

Attorney General Kristin Liska argued to the Ninth

Circuit that AB 2098 should survive because it applied

only in the direct context of treating patients and

“[w]ithout risking their licenses and livelihoods ...

doctors could still ‘publish articles in scientific

journals,’ ‘go on talk shows,’ ‘post on their blogs,’ and

‘engage in research studies.’”10 The law challenged

here goes still further and punishes speech entirely

outside the context of a doctor-patient relationship. It

is essentially a complete ban on speech of a particular

disfavored viewpoint on a particular topic of public

interest.

As this Court has tried to make clear, “there is a

bedrock principle underlying the First Amendment ...

that the government may not prohibit the expression

of an idea simply because society finds the idea itself

offensive or disagreeable.” Texas v. Johnson, 491 U.S.

397, 414 (1989). “Our whole constitutional heritage

10

J. Sullum, “California Quietly Repeals Restrictions on Doctors’

COVID-19 Advice,” Reason (Oct. 11, 2023).

15

rebels at the thought of giving government the power

to control men’s minds.” Stanley v. Georgia, 394 U.S.

557, 565 (1968) (opinion by Marshall, J.). In United

States v. O’Brien, 391 U.S. 367, 377 (1968), this Court

held that, even where there is a significant

governmental interest, any incidental effect on free

speech pursuant to that interest is permissible only “if

the governmental interest is unrelated to the

suppression of free expression.” Here, the suppression

of a particular viewpoint on COVID treatments is not

only related, but is the direct target of the medical

censorship law.

II. THE USE OF OCCUPATIONAL LICENSURE

TO CENSOR SPEECH VIOLATES THE FIRST

AMENDMENT.

At common law, it was the general rule that each

individual had the freedom to engage in the occupation

of his choice, without prior government approval.

Certain restrictions on who could practice certain

trades were imposed by royal charters granting

monopolies to the favorites of the king.

The use of licensing by government to suppress

dissenting speech traces its lineage back to the Star

Chamber in 16th-century England, and its

requirement that printers be licensed and publication

of disfavored views forbidden.11 “The Star Chamber

11

M. Meyerson, “The Neglected History of the Prior Restraint

Doctrine: Rediscovering the Link between the First Amendment

and the Separation of Powers,” 34 IND. L. REV. 295, 299-300

(2001).

16

has long symbolized the arbitrary and uncontrollable

abuse of power both in England and the United

States.” Id. at 299.

For almost two centuries, a stream of royal

proclamations, Star Chamber decrees, and

Parliamentary enactments, constantly

increasing in complexity, shackled the art and

the business of printing and publication. The

Licensing Act of 1662 illustrates the scope of

the system. Not only were seditious and

heretical books and pamphlets prohibited, but

no person was allowed to print any material

unless it was first entered with the Stationers’

Company, a government monopoly, and duly

licensed by the appropriate state or clerical

functionary ... and sweeping powers to search

for suspect printed matter in houses and shops

... were granted.12

The Star Chamber was abolished in 1641, but the

temptation for government to control what views are

shared publicly has continued. Although this Court

has made clear that there can be no prior restraint on

speech or press, states have sought to leverage their

asserted authority to license to restrict the speech of

those who have licenses.

The relatively recent nature of occupational

licensing in America supports this Court’s conclusion

that the Ninth Circuit is wrong in holding that

12

T. Emerson, “The Doctrine of Prior Restraint: Obscenity and

the Arts.” 20 LAW & CONTEMP. PROBS. 648, 650 (1955).

17

government can suppress or compel speech by

recategorizing it as “professional conduct.” Until the

late 1800s, there was relatively little occupational

licensing at all.13 “States exercised virtually no

licensing authority over the mere rendering of advice

during either the post-colonial or Reconstruction

eras.”14 As one author put it, “to restrict the practice

of any art to people specially trained would have been

intolerable in a country where every man had to be

able to be his own farmer, manufacturer, doctor,

lawyer, builder, and banker.”15

Indeed, “modern licensing laws did not begin to

show up until the 1880-1920 era.”16 When states did

begin licensing, it was primarily directed toward

skilled professions with significant risk to clients, such

as doctors, dentists, attorneys, and pharmacists. See

Kleiner at 7. The purpose was to ensure the licensed

professional had met minimum educational or

experiential standards. Licensing was a police power’s

“public health and safety” measure, not a backdoor

means for the government to squash disfavored

speech. Id. And even then, “there is a large body of

13

M. Kleiner, “Reforming Occupational Licensing Policies” at 7,

Brookings (Mar. 2015) (hereinafter “Kleiner”).

14

R. Kry, “The ‘Watchman for Truth’: Professional Licensing and

the First Amendment,” 23 SEATTLE U. L. REV. 885, 956 (2000)

(hereinafter “Kry”).

15

J. Lieberman, “The Tyranny of the Experts: How Professionals

are Closing the Open Society” at 70 (Walker & Co. 1970).

16

Kry at 955.

18

historical, economic, and sociological literature that

suggests that the primary motivation for professional

licensing laws is economic self-interest,” not protection

of the public. Kry at 888.17

As this Court put it in an early case approving

state licensing powers, the object was to shield clients

against “the consequences of ignorance and incapacity

as well as of deception and fraud.” Dent v. West

Virginia, 129 U.S. 114, 122 (1889). Nonetheless,

where a professional engages in speech, the First

Amendment forbids the government from deciding

what speech to punish:

Simply put, the historical practices at the time

of the ratification of the First and Fourteenth

Amendments show that the rendering of

personalized advice to specific clients was not

one of the “well-defined and narrowly limited

classes of speech, the prevention and

punishment of which has never been thought

to raise any constitutional problem.” Viewed

in this light, the licensure of professional

advice is inconsistent with the original

understanding of the First Amendment.18

17

See, e.g., W. Gelhorn, “Abuse of Occupational Licensing,” 44 U.

CHI. L. REV. 1, 11 (1976) (“[L]icensing has been eagerly soughtalways on the purported ground that licensure protects the

uninformed public against incompetence or dishonesty, but

invariably with the consequence that members of the licensed

group become protected against competition from newcomers.”).

18

Kry at 957 (quoting Chaplinsky v. New Hampshire, 315 U.S.

568, 571-72 (1942)).

19

Professor Thomas Emerson has been hailed as

“arguably the foremost First Amendment scholar of his

generation,”19 and a “pillar of the Bill of Rights.”20

Emerson wrote, “there can be little doubt that the

First Amendment was designed to foreclose in America

the establishment of any system of prior restraint on

the pattern of the English censorship system.”21 He

explained:

Under a system of prior restraint, the issue of

whether a communication is to be suppressed

or not is determined by an administrative

rather than a criminal procedure. This means

that the procedural protections built around

the criminal prosecution — many of which are

constitutional guarantees — are not applicable

to a prior restraint. The presumption of

innocence, the heavier burden of proof borne

by the government, the stricter rules of

evidence, the stronger objection to vagueness,

the immeasurably tighter and more technical

procedure — all these are not on the side of

free expression when its fate is decided.

Further, the initial decision rests with a single

government functionary rather than with a

jury. Those who framed the First Amendment

19

D. Hudson, Jr., “Thomas Emerson,” First Amendment Center

(Jan. 1, 2009).

20

L. Pollak, “Thomas I. Emerson: Pillar of the Bill of Rights,” 101

YALE L.J. 321 (1991-1992).

21

T. Emerson, “The Doctrine of Prior Restraint,” 20 LAW &

CONTEMP. PROBS. 648, 652 (1955).

20

placed great emphasis upon the value of a jury

of citizens in checking government efforts to

limit freedom of expression. [Id. at 657.]

Emerson added:

[a] system of prior restraint usually operates

behind a screen of informality and partial

concealment that seriously curtails

opportunity for public appraisal and increases

the chances of discrimination and other abuse.

Decisions are less likely to be made in the

glare of publicity ... and the whole apparatus

of public scrutiny fails to play the role it

normally does...

Perhaps the most significant feature of

systems of prior restraint is that they contain

within themselves forces which drive

irresistibly toward unintelligent, overzealous,

and usually absurd administration....

[C]ommon experience is sufficient to show that

their attitudes, drives, emotions, and impulses

all tend to carry [the state censors] to excesses.

This ... occurs in all areas where officials are

driven by fear or other emotion to suppress

free communications. [Id. at 658.]

Further, Emerson argued:

it is necessary to keep in mind not only the

character structure of the licenser, but the

institutional framework in which he operates.

The function of the censor is to censor.

21

He has a professional interest in finding

things to suppress. His career depends upon

the record he makes. He is often acutely

responsive to interests which demand

suppression — interests which he himself

represents — and not so well attuned to the

more scattered and less aggressive forces

which support free expression. [Id. at 659

(emphasis added).]

He concluded, “[t]he long history of prior restraint

reveals over and over again that the personal and

institutional forces inherent in the system nearly

always end in a stupid, unnecessary, and extreme

suppression.” Id.

But it is not just prior restraint, but postpublication punishment, that offends the First

Amendment. As James Madison put it, “security of

the freedom of the press requires that it should be

exempt not only from previous restraint by the

Executive, as in Great Britain, but from legislative

restraint also; and this exemption, to be effectual,

must be an exemption not only from the previous

inspection of licensers, but from the subsequent

penalty of laws.”22

Recognizing these facts, this Court has repeatedly

upheld the principle that when government forbids

businesses to speak, or compels them to speak, it

22

J. Madison, “Report on the Virginia Resolutions” (Jan. 1800),

reprinted in 5 The Founders Constitution at 142 (P. Kurland & R.

Lerner eds.) (Univ. of Chicago Press: 1987).

22

violates the First Amendment. Moreover, “prior

restraints on speech and publication are the most

serious and the least tolerable infringement on First

Amendment rights.” Neb. Press Ass’n v. Stuart, 427

U.S. 539, 559 (1976). This Court has noted that:

the mere existence of the licensor’s unfettered

discretion, coupled with the power of prior

restraint ... is pernicious not merely by reason

of the censure of particular comments but by

the reason of the threat to censure comments

on matters of public concern. It is not merely

the sporadic abuse of power by the censor but

the pervasive threat inherent in its very

existence that constitutes the danger to

freedom of discussion. [Lakewood v. Plain

Dealer Pub. Co., 486 U.S. 750, 757 (1988)

(internal quotation and emphasis omitted).]

Yet a prior restraint on speech — disguised as a

licensing requirement — is precisely what

Washington’s medical censorship law is. Licensing

regimes do not give the state an exception to the First

Amendment, even under the guise of “protecting the

public.” As this Court noted in a 1945 case dealing

with state regulation of labor unions, even “regulation

... aimed at fraud or other abuses, must not trespass

upon the domains set apart for free speech and free

assembly.” Thomas v. Collins, 323 U.S. 516, 532

(1945). Thomas is “significant for the Court’s rejection

of the state’s argument that it was merely regulating

23

the business practices (in other words, the ‘professional

conduct’) of union organizers.”23

The insult to the First Amendment is still greater

when government suppresses speech based not only on

its content, but also on its viewpoint. In Rosenberger

v. Rector & Visitors of the Univ. of Va., 515 U.S. 819

(1995), this Court recognized that:

[w]hen the government targets not subject

matter, but particular views taken by speakers

on a subject, the violation of the First

Amendment is all the more blatant....

Viewpoint discrimination is thus an egregious

form of content discrimination.

The

government must abstain from regulating

speech when the specific motivating ideology

or the opinion or perspective of the speaker is

the rationale for the restriction. [Id. at 829.]

Washington’s medical censorship law is pure

viewpoint discrimination. As the WMC’s “position

statement” puts it, “Physicians and Physician

Assistants, who generate and spread COVID-19

misinformation, or disinformation, erode the public

trust in the medical profession” and “may be subjecting

their license to disciplinary action.” Pet. at 2. On the

other hand, physicians who limit their speech to that

approved by “the U.S. Centers for Disease Control and

Prevention (CDC) and the Washington State

Department of Health (DOH),” specifically on COVID-

23

Kry at 898-99.

24

19 prevention and treatment, have nothing to fear. Id.

at 3. Thus, the censorship law’s entire point is

viewpoint discrimination. Washington has turned its

licensing laws from a police powers shield aimed at

assuring public health and safety, into a censorship

sword, with the right to practice a licensed profession

subject to cancellation by government if a doctor does

not sacrifice his First Amendment rights.

But as this Court has made clear, “[i]t is well

settled that a speaker’s rights are not lost merely

because compensation is received; a speaker is no less

a speaker because he or she is paid to speak.... And

the State’s asserted power to license professional[s]

carries with it (unless properly constrained) the power

directly and substantially to affect the speech they

utter.” Riley v. Nat’l Fed’n of Blind, 487 U.S. 781, 801

(1988). Thus, “[r]egulations of expressive activity are

valid only when the government’s regulatory interest

aims at the nonexpressive component of the activity.”24

In this case, the actions for which Petitioners have

been disciplined are the purest expressions of free

speech and free press.

Shockingly enough, no

discipline in this case even relates to treatment of a

patient. The discipline is entirely due to doctors

publishing opinion pieces stating their opinion on

COVID treatments. There is no “conduct” here; only

pure speech.

24

Kry at 892.

25

This Court has long held that government cannot

censor commercial speech to ensure that only approved

speech may participate in the stream of commerce:

[I]f [the free flow of commercial information] is

indispensable to the proper allocation of

resources in a free enterprise system, it is also

indispensable to the formation of intelligent

opinions as to how that system ought to be

regulated or altered. Therefore, even if the

First Amendment were thought to be

primarily an instrument to enlighten public

decisionmaking in a democracy, we could not

say that the free flow of information does not

serve that goal.

[Virginia State Bd. of

Pharmacy v. Virginia Citizens Consumer

Council, 425 U.S. 748, 765 (1976).]

This Court has made clear the First Amendment’s

“general rule, that the speaker has the right to tailor

the speech.” Hurley v. Irish-American Gay, Lesbian

and Bisexual Group of Boston, 515 U.S. 557, 573

(1995). This right is “enjoyed by business corporations

generally and by ordinary people engaged in

unsophisticated expression as well as by professional

publishers. Its point is simply the point of all speech

protection, which is to shield just those choices of

content that in someone’s eyes are misguided, or even

hurtful.” Id. at 574. But today, the field of

professional licensing has increasingly become a tool

26

for states to enact “coercive elimination of dissent.”25

Professor Timothy Zick has noted that “[s]tates are

becoming increasingly active, even aggressive, in the

area of professional speech regulation.” 2 6

Washington’s blanket ban on speech containing

dissenting medical opinions on COVID “vaccination”

and treatment is only the latest example.

This case presents the opportunity to revisit and

heed the warning Justice Jackson gave us 80 years

ago:

[I]t cannot be the duty, because it is not the

right, of the state to protect the public against

false doctrine. The very purpose of the First

Amendment is to foreclose public authority

from assuming a guardianship of the public

mind through regulating the press, speech,

and religion. In this field every person must

be his own watchman for truth, because the

forefathers did not trust any government

to separate the true from the false for us.

[Thomas v. Collins, 323 U.S. 516, 545 (1945)

(Jackson, J., concurring) (emphasis added).]

25

See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641

(1943) (“Those who begin coercive elimination of dissent soon find

themselves exterminating dissenters. Compulsory unification of

opinion achieves only the unanimity of the graveyard”).

26

T. Zick, “Professional Rights Speech,” 47 ARIZ. ST. L.J. 1289,

1291 (2015).

27

CONCLUSION

These amici urge this Court to grant certiorari,

reverse the courts below, and remand to the district

court with instructions to stay Respondent’s

enforcement until a final review is made of

Petitioners’ arguments on the merits.

Respectfully submitted,

RICK BOYER

INTEGRITY LAW FIRM

P.O. Box 10953

Lynchburg, VA 24506

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

Attorneys for Amicus Curiae (703) 356-5070

December 29, 2025

wjo@mindspring.com

*Counsel of Record