The lawyers and doctors facing discipline for spreading falsehoods
What role should organizations like state bars and state medical boards play in establishing what's true?
I have a new essay out, something I’ve been working on since winter 2021. It’s called “The Professional Price of Falsehoods” and you can read it here, over at the Knight First Amendment Institute at Columbia University. Many thanks to the good people at Knight for helping me pursue this project.
There’s been a fair amount of news coverage lately about professional discipline against lawyers involved with efforts to overturn the 2020 litigation. The D.C. Bar is bringing ethics cases against Rudy Giuliani and Jeff Clark, the former Justice Department official who attempted a one-man coup of the department in order to back Trump’s attempts to upend the 2020 vote. In February, the California bar finally unveiled similar charges against John Eastman, who worked with Trump to pressure Vice President Mike Pence to refuse to accept the congressional count of the electoral votes.
The essay examines these efforts—and comparable efforts in the world of medicine—by professional organizations to respond to members of their profession spreading falsehoods. In 2020, the country saw a surge of lawyers pushing baseless claims about election fraud both inside and outside court. It also saw doctors making similarly baseless arguments about covid and, eventually, the vaccine. And, of course, all these falsehoods were amplified on social media, not the least by Donald Trump himself.
At the time, we saw a great deal of discussion about social media platforms’ responsibilities to limit the spread of potentially harmful and dangerous information on their services. But what about state bars (which certify lawyers to practice law) and state medical boards and certifying boards (which do the same for doctors)? What responsibility do the organizations that lend professionals their credentials and credibility have to respond to falsehoods like these?
The events of 2020—and the ongoing fallout—produced a great deal of soul-searching within the professions. Some lawyers and doctors formed groups to pressure professional organizations to take action against the figures who, in their view, were discrediting law and medicine and contributing to widespread distrust of institutions. And these organizations have taken action—to an extent. As I noted above, there exists a small but growing cohort of lawyers subject to bar discipline and judicial sanctions thanks to their conduct in 2020. There are also a handful of medical professionals who have told falsehoods about covid and have faced fines or had their licenses to practice medicine pulled or suspended.
Many people within these professions would argue that this isn’t enough—that professional organizations need to be more aggressive in how they define what’s true and false. At the same time, there are real constraints on what’s possible. There’s the First Amendment, for starters. In medicine, a growing number of states are moving to restrain the authority of state medical boards to discipline doctors for prescribing ivermectin or hydroxychloroquine to treat covid. In law, some disciplinary charges have been dismissed—like Sidney Powell’s, which a Texas judge threw out in February. (The Texas bar authorities have yet to appeal.)
And when you get right down to it, how do we expect these authorities to distinguish cleanly between what’s a lie and what’s not? Is that even possible? At the same time … if these expert organizations can’t play this role, who can? Unlike social media platforms—which Mark Zuckerberg famously said should not be the “arbiters of truth”—the legal and medical professions are defined in part by their broadly accepted authority to define what is and is not appropriate behavior for their members, and, through that, the contours of a professional’s relationship with truth.
Post-2016, the idea of American culture and politics as polluted by misinformation became very trendy—a trend that spoke, I think, to a broader anxiety over not just the meaning of facts in a splintered country but the capability of experts and institutions to help the public sort through truth and falsehood. It was, in a profound sense, a loss of trust: in truth; in expertise; in each other. Recently, we’ve seen somewhat of a backlash recently to the idea of misinformation and disinformation as a central problem in American life. (Elon Musk is only one symptom of this.) It’s certainly true that a lot of discourse about this has been exaggerated, often by people who didn’t really know what they were talking about. But I think it’s important to not lose sight of the broader crisis of trust in institutions that we’ve all been grappling with in recent years, which is reflected not only by confusion and disagreement over what’s true and how to know that, and over which institutions get to make those calls.
While researching and reporting this essay, one of the themes that came up again and again was the worry on the part of doctors and lawyers—including those involved with disciplinary processes—that the public would lose faith in the professions if they took no action against liars. At the same time, doctors in particular worried that their profession had already been so discredited—by the general wave of public distrust in experts, by frustration over covid policies—that whatever actions they took wouldn’t be able to break through the falsehoods.
In the short term, I do think that professional organizations can and should do more, within the boundaries of the law, to respond to falsehoods told by those within their ranks. In the long term, though, this is a question about rebuilding public trust in institutions. There are smart people out there who are thinking through how to carry out that work. But it’s going to be a difficult project, and I don’t know if we’ll see the results any time soon.
The essay is here. I hope you’ll read it.
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I think the idea of rebuilding trust in institutions usually strikes me as optimistic to the point of not really being plausible but now I'm interested in looking for examples of times its been successful!