From today's decision in Jensen v. Minn. Bd. of Med. Practice, written by Eighth Circuit Judge David Stras and joined by Judges James Loken and Lavenski Smith:
Years of investigations by the Minnesota Board of Medical Practice caused Dr. Scott Jensen to speak less and spend more. Either would be enough for a court to hear his case, so we reverse….
Like the rest of the country, the COVID-19 pandemic divided Minnesotans. Some public officials, including Governor Tim Walz, pushed for aggressive measures to "stop the spread" of the virus. Others like Dr. Scott Jensen, then a state senator, had a different view. He opposed vaccine mandates and believed it was a mistake to close businesses and schools. He ran on that message as the Republican nominee for governor in the 2022 election.
Not everyone liked what he had to say. So much so that, from the pandemic's start until mid-2022, the Minnesota Board of Medical Practice received 18 complaints about him. The objection was almost always the same: Dr. Jensen was "spreading misinformation" and posed a "danger to public health." … [T]he 18 complaints led to four investigations. At the start of each one, the Board sent him a letter detailing the allegations. Two asked him to "respond[ ] in writing[ ]" and reminded him that, "as a licensee of the Board," he was "required to cooperate fully." When he replied to those, he provided the Board with hundreds of pages of information, including news stories about the pandemic, medical studies, and patient records.
One, which lasted more than a year, took on a life of its own. Like the others, it began with a letter informing him that the Board was investigating an allegation that he had "politiciz[ed] public health." He cooperated, but the Board waited until after the election to request an "in-person conference." The notice listed multiple possible violations, including "unethical or improper conduct" and "depart[ing] from or fail[ing] to conform to the minimal standards of acceptable and prevailing medical practice."
The subject line underscored the high stakes involved: "In the Matter of the Medical License of Scott M. Jensen, M.D." He hired a lawyer and spent countless hours preparing. After the conference ended, so did the investigation.
Jensen sued, claiming the investigations violated the First Amendment, and the court held that he had standing to raise this claim (even though he was challenging just the investigations, and not any actually implemented disciplinary measures):
