US Supreme Court will consider petition for stay in COVID-19 free speech case

On Wednesday, U.S. Supreme Court Justice Clarence Thomas accepted an application for a stay pending appeal of a 9th U.S. Circuit Court of Appeals lawsuit involving retired Clarkston ophthalmologist Richard Eggleston. 

The case may decide, at a federal level, whether a medical commission is allowed to limit a doctor’s speech in a public forum. 

Eggleston faced investigation by the Washington State Medical Commission regarding alleged COVID-19 misinformation shared in newspaper columns published in The Lewiston Tribune.

Todd Richardson, of Clarkston, is one of the attorneys representing the group that submitted the application for a stay to Thomas. It was initially denied by Justice Elena Kagan in November. Court rules say that resubmitting applications to another justice is allowed, but note that the practice is disfavored.

“Honestly,” Richardson said, “we kind of decided, ‘What do we have to lose?’”

Richardson said he was pleasantly surprised at the decision. 

“I love the fact that this is an issue that we hope will finally get answered for the whole country,” he said.

Other plaintiffs in the federal case include retired Washington internist Thomas Siler, and former professional basketball player John Stockton, who hosts a podcast where he opines on issues including COVID-19 health policy. Eggleston has been a guest on the podcast.

Eggleston and his co-plaintiffs argue Washington’s policy that bars doctors from spreading COVID-19 misinformation is an infringement on doctors’ free speech rights; they also argue the public has a right to hear those doctors’ opinions.

Similar cases have also arisen in other states. Richardson said the group decided to file a federal lawsuit in hopes of getting a ruling that would apply across the country.

Eggleston also has a separate state lawsuit to decide if the Washington Constitution’s free speech laws, which are more protective than the U.S. Constitution, allow the state’s medical commission to sanction doctors for spreading COVID-19 misinformation.

If either the Washington Court of Appeals grants Eggleston’s stay, or the Supreme Court grants the stay in the federal case, the Medical Commission would be prevented from pursuing charges against him.

If neither court grants a stay, the Washington Medical Commission could pursue a case against Eggleston that could result in sanctions, such as loss of license. Eggleston’s license is considered “retired active,” meaning he may provide charitable services.

It could be possible for the Washington Court of Appeals to grant a stay even if the Supreme Court did not, Richardson said. However, he said, that scenario is less likely.

“If another court could resolve the issue for (Washington) and the rest of the country, they’re going to let that — often, will let that court make their decision,” Richardson said. 

In a Wednesday filing with the Washington Court of Appeals Division III, Eggleston’s attorneys notified the court that Thomas had accepted the application and forwarded it to the court for consideration on Jan. 10.

“While the decision from the U.S. Supreme does not preclude this Court from finding greater protections (under the Washington Constitution) and entering a stay,” Eggleston’s attorneys wrote. “If the U.S. Supreme Court grants the stay, it will preclude any need for further action in this Court.”

Richardson said he expects the justices will vote on the petition the same day, though he’s not certain when it will be officially announced.

The petition also asks the Supreme Court to take the case from the 9th Circuit if the stay is granted.

The case means that any prosecution against Eggleston by the Washington Medical Commission is likely to be delayed at least until the Supreme Court decision is announced.

“The state Medical Commission is not going to proceed against Dr. Eggleston, at least until they hear from the state Court of Appeals,” Richardson said. “My suspicion is they will probably also want to hear from the U.S. Supreme Court.”