Appeals court reverses Yakima doctor’s punishment for COVID blog posts

A state appeals court upheld a Yakima doctor’s discipline for prescribing Ivermectin to COVID patients but rejected sanctioning him for blog posts about the pandemic.

A three-judge panel of the Spokane-based Division III Court of Appeals said the Washington Medical Commission violated Dr. Richard Wilkinson’s free-speech rights when it punished the doctor for blog posts that spread misinformation about the COVID-19 pandemic and treatment options.

The court ordered the case sent back to the medical commission to review the sanctions imposed in light of the ruling. The sanctions included placing Wilkinson’s license on five years’ probation, fining him $15,000 and ordering him to undergo a clinical competency evaluation.

Judge George Fearing, who wrote the unanimous 61-page ruling for the court, also wrote a separate 21-page concurring opinion condemning attacks on free speech, particularly by President Donald Trump.

“This president operates under an authoritarian and retributive agenda that trashes the First Amendment rights of those who criticize him or who support causes with which he disagrees,” Fearing wrote. “This president loathes the nonpartisan nature of the First Amendment.”

Fearing cited Enlightenment philosopher John Locke, 17th-century British author John Milton and U.S. Supreme Court Justice Louis Brandeis to argue that the remedy to bad speech and misinformation is more speech, not censorship.

One of Wilkinson’s attorneys called the free-speech half of the decision a victory for all Washingtonians but would not say if Wilkinson would pursue further legal action on the court upholding the findings of unprofessional conduct.

“The court made it quite clear that debate cannot be shut down regardless of what the government might think of that debate,” attorney Karen Osborne said.

Wilkinson v. Washington Medical Commission

Appeals court ruling in Wilkinson v. Washington Medical Commission.

Osborne and Peter Serrano, who is now the interim U.S. Attorney for Eastern Washington, represented Wilkinson on behalf of the Silent Majority Foundation, a Pasco-based conservative nonprofit that has challenged vaccine mandates, gun-control regulations and the state’s response to the 2020 COVID pandemic.

In 2023, the medical commission found that Wilkinson engaged in unprofessional conduct when he prescribed Ivermectin and other ineffective treatments to seven patients with COVID, two of whom died, according to documents from the medical commission.

While some touted Ivermectin as a treatment for COVID, both Merck, the maker of the antiparasitic drug, and the U.S. Food and Drug Administration both said that it did nothing to treat the COVID virus.

Another treatment Wilkinson prescribed, inhaling vaporized hydrogen peroxide, was also found to be ineffective and caused lung damage.

The commission found that Wilkinson’s treatments delayed his patients getting approved treatments such as monoclonal antibodies or remdesivir in a timely manner.

Blog posts

The commission also cited Wilkinson for posts he put on his blog touting ineffective medical treatments and spreading misinformation about the effectiveness of COVID vaccines and face masks, and declaring that the FDA, the state Department of Health and the Yakima Health District’s directives on the pandemic could not be trusted.

Wilkinson sought judicial review on the commission’s decision, and Yakima County Superior Court Judge Kevin Naught transferred the case to the appellate court for review.

Wilkinson argued that the commission violated his First Amendment right to free speech, that he was being targeted because of his stance on COVID treatment and the commission exceeded its authority in sanctioning him.

Fearing, joined by Judges Robert Lawrence-Berrey and Tracy A. Staab, upheld the commission’s discipline for how he treated COVID patients. Fearing said the commission supported its findings through clear and convincing evidence.

However, the court found the commission went too far in sanctioning Wilkinson for the comments he made on his blog, agreeing that it violated the doctor’s First Amendment rights.

“The First Amendment robustly protects a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream or even dangerous,” Fearing wrote in the opinion. “WMC’s contention that it may monitor the scientific accuracy of physician’s speech means that the State of Washington holds power to monitor speech and assess the trustworthiness of that speech. A government’s power to protect truthful discourse would cast a chill on the exercise of free speech and thought.”

In his concurring opinion, Fearing said the First Amendment protects repugnant speech, with the idea that the best remedy for it is, as Brandeis said, more speech, not less.

“As one who daily suffers from long-COVID, I, with a weak body and voice, disagree with (Wilkinson’s) assertion that COVID-19 has been a scam. As one whose life may have been saved by the COVID vaccine, I shudder at Dr. Wilkinson’s denouncement of the vaccine,” Fearing wrote. “But with a strong pen, I, as a judge, endorse, guard and uphold the United States Constitution, the Bill of Rights, the First Amendment, nonpartisanship, consistency, fairness, justice, tolerance, respect and common decency. As a judge, I have performed my solemn and sworn duty to protect (Wilkinson’s) right to voice his view.”

Locke, whose political philosophies shaped the Declaration of Independence, the U.S. Constitution and the Bill of Rights, and Milton, whose “Areopagitica” denounced Britain’s laws requiring printers to be licensed, both saw how restrictions on speech and writing contributed to the English Civil War, Fearing wrote.

“Historians see a similar disunion in American society today that places the country on the brink of a civil war,” he wrote. “Radicalized politics spawns support for violence against philosophical opponents. Extreme views divide family members.”

Fearing cited the deaths of conservative commentator Charlie Kirk and former Minnesota House Speaker Melissa Hortman, the shooting of then-U.S. Rep. Gabby Giffords in Arizona, the assassination attempt on Trump, and the killing of nine people at a historically Black church in North Carolina as examples of a deterioration in civil discourse and targeting opponents for espousing contrary views.

The right to free expression is under attack from the White House, Fearing wrote. He cited Trump’s withholding federal aid from Columbia and Harvard universities unless they agreed to his demands to restrict protests against Israel’s war in Gaza, revoked Seattle-based law firm Perkins Coie’s security clearances because the firm has represented Democratic groups and restricting the Associated Press’ access at the White House because the news cooperative does not fully embrace his renaming of the Gulf of Mexico.

“Despite disagreement with his views, I applaud Dr. Wilkinson for enforcing at a substantial cost his free-speech rights. I wish our current president held the same devotion to the First Amendment as does Dr. Wilkinson,” Fearing wrote. “I encourage Dr. Wilkinson and all Washingtonians to recognize, as this concurring opinion has, the nonpartisan nature of the First Amendment and to condemn the violations of the First Amendment by any president who bestows free speech protection only on his votaries.

“History teaches that the silencing of one leads to the silencing of many and oftentimes the muzzling of all.”