Summary
The Ninth Circuit affirmed dismissal of a First Amendment challenge to California’s requirement that continuing medical education courses eligible for credit include information about implicit bias. Applying the factors from Shurtleff v. City of Boston, the panel held that such credit-eligible courses constitute government speech because California has a longstanding tradition of regulating medicine, the public would likely attribute the speech to the government, and the state controls the courses’ content and delivery. The court therefore concluded that the Free Speech Clause does not apply to the challenged requirement.
Topics
Practice areas
Questions Presented
- Whether continuing medical education courses eligible for credit under California law constitute government speech.
- Whether the government-speech doctrine prevents plaintiffs from challenging California's implicit-bias CME requirement under the Free Speech Clause.
- Whether the court needed to reach plaintiffs' unconstitutional-conditions claim.
Holdings
- Under California's statutory and regulatory scheme, continuing medical education courses eligible for credit by the Medical Board of California constitute government speech.
- Because credit-eligible CME courses constitute government speech, they are immune from the strictures of the Free Speech Clause.
- The court did not reach plaintiffs' unconstitutional-conditions claim.
Key quotations
“We therefore hold that under the State’s scheme, CMEs eligible for credit by the Medical Board of California are government speech.” (6)
“If these factors show that the government is “engaging in [its] own expressive conduct, then the Free Speech Clause has no application.”” (15)
“We hold that CMEs eligible for credit under California law constitute government speech.” (38)
“And because they constitute government speech, CMEs eligible for credit are therefore immune from the strictures of the Free Speech Clause.” (38)
Factual background
California requires licensed physicians to complete at least 50 hours of approved continuing medical education every two years. State law and regulations prescribe subject matter, instructor qualifications, course methodology, evaluations, attendance records, and accreditation and auditing procedures for courses eligible for credit; since 2019, eligible courses have been required to include information about implicit bias. Dr. Khatibi, a California-licensed physician and CME instructor, and Do No Harm alleged that the implicit-bias requirement violated the First Amendment.
Procedural history
Plaintiffs challenged California's requirement that continuing medical education courses eligible for medical-license credit include information about implicit bias. The district court dismissed the action, holding that credit-eligible CME courses constitute government speech and therefore are not subject to scrutiny under the Free Speech Clause. The Ninth Circuit reviewed the dismissal de novo and affirmed.