The title of today’s post is from a quote by Justice Holmes in a dissenting opinion, Abrams v. United States, 250 U.S. 616, 630 (1919). Abrams involved a conviction under the Espionage Act based on the publication of leaflets that were distributed in New York during World War I. Among other things, the leaflets denounced President Wilson as a hypocrite and a coward, and lamented the “hypocrisy of the plutocratic gang in Washington and vicinity.” Id. at 620. In his dissent (joined by Justice Brandeis), Justice Holmes espoused the power of free speech in connection with our country’s experiment with its Constitution. Or, as Justice Holmes more eloquently put it: “It is an experiment. All life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system[,] I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death . . . .” Id. at 630.
What does this have to do with drug and device litigation? Good question. Today’s decision—aside from including a quote that is the title of today’s post—is an appeal of a disciplinary proceeding involving a physician who was disciplined by the Washington Medical Commission. Wilkinson v. Washington Medical Commission, 2025 WL 2652817 (Wash. Ct. App. Sept. 16, 2025). The doctor subject to discipline maintained a blog in which he posted information promoting the use of ivermectin to treat COVID-19 infections, discounted the significance of COVID-19 in general, and made other statements that were counter to generally accepted medical opinion. Holding that the First Amendment protected the physician’s statements on his blog, the court reversed the Commission’s sanctions. That caught our eye, as the same defense would likely apply in off-label promotion cases. Readers of the blog know our view that truthful, scientific information about an off label use is subject to First Amendment protection, and we’ve blogged about that here and here (and here is a link to a comprehensive law review article from Bexis on the subject).
The decision addresses two aspects of the Commission’s discipline: one for patient related care; and the second for content posted by the physician on his blog. We’ll start with the patient related care analysis and then turn to the blogging and First Amendment question.
The Washington Medical Commission heard testimony about seven of the doctor’s patients. All of the patients had or suspected they had COVID-19 infections. The doctor prescribed each of them ivermectin (some by phone and without an office visit or examination). The doctor also took the patients off medications previously prescribed by others, and instead recommended treatments such as nebulized hydrogen peroxide, zinc and melatonin. The doctor did not inform his patients that ivermectin was not FDA approved or recommended to treat COVID-19 infections. The doctor also recommended against the use of remdesivir and baricitinib, which physician and expert witnesses testified were two of the most effective medications for treating COVID-19 related symptoms. Two of the patients died from COVID-19 complications, and the other patients experienced adverse health impacts from COVID-19 while under the doctor’s care. The doctor did not document his treatment rationales or informed consent discussions with his patients.
Based on this testimony, the Commission made findings that the doctor failed to meet the applicable standard of care and committed unprofessional conduct under Washington’s Uniform Disciplinary Act. On its review of the record, the appellate court held that the Commission supported its sanctions against the doctor by clear and convincing evidence, and the court upheld the sanctions on that basis.
The Commission also imposed sanctions against the doctor for a blog where he posted medical information to the general public. Most of his blog topics from 2020 through 2022 addressed COVID-19. The Commission sanctioned the doctor based on blog content that included the following assertions:
- The COVID-19 pandemic is a scam;
- PCR testing and the use of masks to reduce the spread of COVID-19 infection are useless;
- Ivermectin is effective in preventing or treating a COVID-19 infection; and
- COVID-19 vaccines are dangerous and kill people (including a comparison of the push for vaccinations to the murders of Jewish people in Nazi-era Germany).
Id. at *2. On appeal, the doctor claimed his blog posts were constitutionally protected by the First Amendment. The Commission concluded that the doctor was posting false and misleading statements on his blog, but, importantly, the blog posts did not involve any direct interactions between the doctor and any patient.
In conducting its First Amendment analysis, the court summarized relevant Supreme Court precedent as follows:
The First Amendment confirms that the government lacks power to restrict expression because of its message, its ideas, its subject matter, or its content. As a result, we presume content-based restrictions on speech invalid. We also impose on the state the burden of showing the constitutionality of any restriction. Critical to this appeal is the extension of First Amendment protection to false statements. This protection is essential because some false statements are inevitable with an open and vigorous expression of views in public and private conversation, expressions the First Amendment seeks to guarantee.
Id. at *18 (citations omitted). Specific to the medical community, the court recognized Ninth Circuit precedent holding that the “First Amendment robustly protects a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream or even dangerous.” Id. at *19 (citing Pickup v. Brown, 740 F.3d 1208, 1227 (9th Cir. 2014)). “While a doctor may not counsel a patient to rely on quack medicine, and although the First Amendment tolerates a substantial amount of speech regulations with the physician patient relationship, the First Amendment does not allow singular regulation of public physician speech.” Id. at *21 (quoting Pickup, 740 F.3d at 1228) (cleaned up). The same approach applies to professional speech in general:
[W]hen the government polices the content of professional speech, it can fail to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail. Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform.
Id. at *23. Or, as Justice Holmes put it, “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Id. (quoting Abrams, 250 U.S. at 630). “The people lose when the government is the one deciding which ideas should prevail.” Id.
The Washington Medical Commission asked the appellate court to create a new, narrow exception to the First Amendment analysis based on the physician’s “knowing misrepresentations of verifiable medical facts.” Id. at *23. After first expressing its skepticism that “this clodhopper court holds the status to create exceptions to the First Amendment” (as humorous a statement of humility from a court as we’ve seen in a long time), the court declined to create any exception. It viewed the case law as clear in its protection of physician speech—even if the speech advocated for treatments not generally accepted by the medical community.
The court held that the Washington Medical Commission could constitutionally impose discipline on the physician for his violations of established standards of care in treating patients. But it could not constitutionally regulate the doctor’s speech when he “preached the same themes” on his blog. Id. at *23. The opinion also includes a concurrence which analyzes the speech as political rather than professional and reaches the same result. “The First Amendment offers its strongest protection to speech for political purposes.” Id. at *25.
Although not squarely addressing off-label promotion, the court’s analysis would support continued challenges to any FDA position prohibiting the promotion of truthful, scientific information about an off-label use. If the First Amendment protects a physician promoting medical practices outside the realm of generally accepted medicine on his blog, it surely protects the conveyance of true and accurate information about a medicine that is grounded in science.