The recent lawsuit filed by Dr. Scott Jensen against the Minnesota Board of Medical Practice, discusses a complex interplay of constitutional rights, professional conduct, and public health concerns.

Dr. Jensen, a physician, former state senator and failed GOP gubernatorial candidate. In the complaint, Dr. Jensen alleges that the Board violated his First Amendment rights and retaliated against him for his public criticism of the Board’s COVID-19 guidelines.

Thes case raises significant questions about the boundaries of free speech for healthcare professionals, the role of regulatory bodies in monitoring that speech, and the potential for political bias in such oversight. In this blog post, we will delve into an objective legal analysis of the claims made by Dr. Jensen, examining the strengths and weaknesses of his case, the evidence presented, and the potential implications for both healthcare professionals and regulatory bodies.

The legal claims made in the complaint by Dr. Scott Jensen against the Minnesota Board of Medical Practice and its members are centered around alleged violations of his constitutional rights and retaliation for his public criticism of the Board’s COVID-19 guidelines.

The causes of action identified in the complaint include:

1. Allegations concerning public statements made by Dr. Jensen, which are claimed to be protected by the First Amendment. The complaint argues that the Board was not required by law to investigate Dr. Jensen’s speech and that if it were, the statute requiring that investigation would be facially unconstitutional.
2. The complaint alleges that the Board’s investigations into Dr. Jensen’s public speech were intended to chill his speech. It claims that the Board’s decision not to investigate certain complaints and dismiss them without investigation demonstrates this intention (Page 27).
3. The complaint also alleges that the Board’s investigations were discretionary and were intended to chill Dr. Jensen’s speech. It claims that the Board’s decision not to investigate certain complaints and dismiss them without investigation demonstrates this intention.
4. The complaint argues that the Board’s actions were a weaponization of a government agency, targeting political speech on matters of great public import, which is the type of speech the First Amendment was written to protect.
5. The complaint also alleges that the Board’s actions deprived the people of Minnesota of an open debate in the marketplace of ideas by an ideologically driven, politicized government censorship apparatus which retaliated against its opponent based on the content of the message he espoused.

While these cases may be meritorious, Dr. Jensen will have an uphill battle proving the required elements for these claims.

1. 1. First Amendment Protection: Dr. Jensen argues that the allegations against him concern public statements he made, which he asserts are protected by the First Amendment. He contends that the Board was not required by law to investigate his speech and that if it were, the statute requiring that investigation would be facially unconstitutional.
   2. Causation and Harm: Dr. Jensen points to the Board’s decision not to investigate certain complaints and dismiss them without investigation as evidence that the investigations into other complaints were discretionary and intended to chill his speech.
   3. Standard of Review: Dr. Jensen highlights that the Board’s policy until at least February 2018 was not to rely on social media posts in the investigative fact-finding process. He also points to the role and authority of the Minnesota Attorney General in the investigation of complaints on behalf of the Board.
   4. Political Bias: Dr. Jensen alleges that the Board, which consisted of members appointed by his opponent in the 2022 election, targeted his political speech on matters of great public import .
   5. Chilling Effect: Dr. Jensen argues that the Board’s actions deprived the people of Minnesota of an open debate in the marketplace of ideas and led to countless other health care professionals refraining from speaking altogether.
   6. Retaliation: Dr. Jensen provides evidence of his public statements and the subsequent complaints received by the Board. He also points to the Board’s decisions to dismiss certain complaints as evidence of retaliation.

While Dr. Scott Jensen’s case brings to light important questions about the intersection of free speech and professional conduct in the healthcare field, the legal prospects of his claims remain dubious. The courage in standing up for what he believes in and his commitment to fostering open debate on public health issues are commendable. However, the legal hurdles he faces are significant. Regulatory bodies like the Minnesota Board of Medical Practice often have broad discretion in their actions, and courts tend to defer to their expertise. Proving political bias or a chilling effect on speech can also be challenging. Despite the compelling narrative, the success of Dr. Jensen’s case will largely depend on his ability to provide clear evidence supporting his claims and to convincingly argue that the Board’s actions were not justifiable based on professional or public health concerns.

Jensen Complaint:
Jensen-Complaint-FINAL-6.6.23