Summary
The Ninth Circuit denied petitions for panel rehearing and rehearing en banc in a First Amendment challenge to California’s requirement that qualifying continuing medical education courses include instruction concerning implicit bias. The order includes dissents arguing that privately created and taught CME courses constitute private rather than government speech and that the panel improperly applied the Supreme Court’s government-speech framework.
Topics
Practice areas
Questions Presented
- Whether panel rehearing should be granted.
- Whether rehearing en banc should be granted concerning whether privately created and taught continuing medical education courses constitute government speech exempt from First Amendment scrutiny.
Holdings
- The petition for panel rehearing was denied.
- Rehearing en banc was denied because the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration.
Key quotations
“The petitions for panel rehearing and rehearing en banc (Dkt. No. 64) are DENIED.” (at 3)
“Because of the risk that “government could silence or muffle the expression of disfavored viewpoints” by characterizing that expression as government speech and therefore outside the First Amendment’s ambit, the Supreme Court has admonished courts to exercise “great caution” before extending the government speech doctrine.” (at 8)
“That is not the government “speak[ing] for itself”; rather, it is the government compelling others to speak in a certain way.” (at 26)
“Our First Amendment stands stubbornly athwart that approach.” (at 28)
Factual background
California requires physicians to complete accredited continuing medical education to maintain their medical licenses. California law requires CME courses relating to direct patient care to include curriculum addressing implicit bias, including examples of its effects on perceptions and treatment decisions or strategies addressing unintended bias. Dr. Azadeh Khatibi and Do No Harm, whose members create and teach CME content, challenged the requirement as compelled private speech.
Procedural history
Plaintiffs challenged California's requirement that continuing medical education courses include curriculum concerning implicit bias. The Central District of California dismissed the action, concluding that the CME courses constituted government speech, and a Ninth Circuit panel affirmed. The panel unanimously denied rehearing; the court also denied rehearing en banc because the petition did not receive a majority of the votes of the nonrecused active judges.