James Dickey: Government can’t use its investigatory power to punish citizens’ speech

The Board of Medical Practice has absolutely no jurisdiction to investigate a doctor for his or her political speech. But they did that to Dr. Jensen, weaponizing their investigatory power and making the process of responding the punishment itself.

Alpha News

The following is a transcript from Minnesota Law Weekly, a podcast from the Upper Midwest Law Center.

Today, we are giving you a series of updates on progress in some of our cases. As you will see, we are keeping busy to safeguard your rights and our rule of law.

First, Dr. Scott Jensen versus the Minnesota Board of Medical Practice. As many of you already know, we filed a lawsuit against the Minnesota Board of Medical Practice and its members earlier this summer. We filed the lawsuit because, time after time — in fact, 5 separate times — while Dr. Scott Jensen was serving as a senator and running for governor, he was investigated by the Board of Medical Practice almost entirely based on his political speech about COVID-19 and the government’s response to it. He was told, in each of these investigations, that he had to respond or face potential discipline. He did so, under protest, and spent hundreds or thousands of hours responding diligently to defend himself. But he never should have been forced to defend himself, because the Board of Medical Practice has absolutely no jurisdiction to investigate a doctor for his or her political speech. But they did that to Dr. Jensen, weaponizing their investigatory power and making the process of responding the punishment itself. Dr. Jensen was cleared of all allegations of wrongdoing — but they waited until after the 2022 election to do so, while Gov. Walz was tweeting about Dr. Jensen’s investigations in the weeks leading up to the election.

Now, the government has moved to dismiss our case, which is its typical response. We got our chance to respond to that motion to dismiss on Aug. 11, and I think we really put our best foot forward. In our motion, we showed the federal district court that a 2018 U.S. Supreme Court case called National Institute of Family and Life Advocates v. Becerra, also known as NIFLA, makes it illegal for the government to force medical professionals to speak in ways that contradict their personal views — under the disguise of “regulating professional conduct.” And likewise, we argue that the government cannot censor medical professionals when they speak about public issues by forcing them to go through a long and unfair process of responding to frivolous investigations. We are looking forward to our day in Court on Oct. 3, and I believe we will beat back the motion to dismiss and prevail in this case. We stand ready to support Dr. Jensen and bring this case as high as it takes to stop this weaponization of a Minnesota state agency.

Second, I have a brief update for you on our government data lawsuit on behalf of Dr. Jensen against Keith Ellison and his Office of the Attorney General. As you may recall, we sued Ellison and the office for failing to provide documents related to Dr. Jensen and the office’s involvement in the investigation of Dr. Jensen. We have now met with the judge and agreed on a schedule for the briefs and the hearing for the case. We will file two briefs and then proceed to a hearing on Oct. 17 in Carver County. Again, we look forward to bringing this matter to Court.

Third, I have a brief update for you on our case against the new felon voting law. We filed Minnesota Voters Alliance v. Hunt in Anoka County District Court on June 29. We argue that, because the Minnesota Constitution does not allow those convicted of felonies to vote unless they are restored to civil rights — that’s all of their civil rights, plural, not just the right to vote — then they are not eligible to vote. The Legislature cannot override that with a new law. They need to propose a constitutional amendment to the voters and let them decide. But the Legislature plowed ahead anyway.

We are now facing two motions to dismiss brought by Anoka County and the Secretary of State. We are also facing an unsurprising attempt to “pile on” to the defense spearheaded by the ACLU of Minnesota. They are representing two convicted felons who have not yet completed their sentences but who are concerned that our lawsuit would affect their voting rights. We are also going to bring our case for the Court to issue what is called the “writ of quo warranto” at the same time. That means we are going to call on the Court to decide that the Minnesota Constitution cannot be amended by the Legislature’s new law, and only the voters of Minnesota can change the Constitution. We expect to be heard on this case on Oct. 30 in Anoka County.

Each of these cases has a similar theme. The government can’t use its investigatory power to punish citizens for speaking on politics. The government must abide by the law and provide documents and data in response to citizens’ requests. And the government cannot override the will of the people in the form of the Minnesota Constitution. We are fighting on all fronts to keep your government in check and make it comply with the laws which bind it. And you can see how busy we are on our behalf. Stay tuned, because we will have new lawsuits dropping in the near future on some very important issues, as well.



James Dickey