'Creeping collectivism': Appeals court upholds ideological mandate on doctors to keep licenses

The legal doctrine of government speech, which inhibits individual First Amendment rights, got a massive expansion from the Pacific to the Rockies thanks to a federal appeals court that upheld ideological requirements for ongoing professional licensing rules, according to lawyers for a California doctor challenging her state's rules.

The Pacific Legal Foundation told Just the News it will file a petition for rehearing by the full 9th U.S. Circuit Court of Appeals following a three-judge panel's ruling Friday that deemed the Golden State's mandatory "implicit bias" training in accredited continuing medical education, of which doctors must complete 50 hours every two years, government speech.

Beyond California, the ruling blesses current or potential ideological requirements in CME in Oregon, Washington, Nevada, Arizona, Idaho, Alaska, Montana and Hawaii. The panel was nominated by presidents Clinton, Obama and Biden, all Democrats.

The logic of the ruling means "there is little to stop governments around the country from compelling continuing education instructors in any trade or profession to profess all manner of controversial state-endorsed topics," said PLF lead attorney Caleb Trotter.

It's a "dangerous misuse" of government speech prohibited by the Supreme Court's 2017 Matal ruling against a statutory ban on "disparag[ing]" trademarks including for the Asian-American rock band The Slants, Trotter said, quoting Matal.

A Florida Christian high school, supported by football greats including Tim Tebow, is trying to get SCOTUS to review a similar 11th Circuit ruling, binding on Florida, Georgia and Alabama, that upheld a ban on prayer over the public address system by religious teams at games in taxpayer-funded venues, deeming them government speech.

PLF sued California two years ago on behalf of ophthalmologist Azadeh Khatibi, a peer-reviewed researcher who treats infectious diseases and teaches CME courses, and medical advocacy group Do No Harm, which has CME-teaching members.

The group argued AB 241 requires doctors to be taught "white individuals are naturally racist" as a condition of their licensing but lost at the district court a year ago. This spring PLF sued to block even broader Michigan rules on behalf of Grand Rapids dentist Kent Wildern, arguing the scientific rigor behind implicit bias has been questioned since at least 2009.

The conservative Young America's Foundation and Association of American Physicians and Surgeons and libertarian Cato Institute supported Khatibi in friend-of-the-court briefs. Khatibi's co-plaintiff and CME instructor Mary Singleton, an early black female physician who blasted the mandate as racist in The Washington Post, died before oral argument.

A childhood immigrant from Iran, Khatibi obtained a preliminary injunction against another California law banning so-called medical misinformation, prompting the Legislature to revoke the law before it could be struck down. Khatibi, then-presidential candidate Robert F. Kennedy Jr. and others sued again months later, claiming California was still threatening doctors.

"Dr. Khatibi never imagined that she would escape the oppression of her childhood only to face creeping collectivism and unfree speech in America," PLF says on the case page. "Regardless of its relevance in her CME courses, she must replace some of her instruction with a discussion of implicit bias."

Like congressionally 'mandatory funding of beef commercials' 

Governments routinely invoke their own speech rights to defeat First Amendment litigation, such as the Biden administration's pressure on social media companies to suppress disfavored narratives, New York's pressure on banks and insurance companies to dump the National Rifle Association as a client and a school district's promotion of Black Lives Matter.

The 9th Circuit portrayed the dispute over AB 241 as simple to resolve, claiming CME courses are clearly government speech because California "has a longstanding tradition of regulating the medical profession," the public would "tend to" attribute course content to the government and it "imposes several restrictions" on the "form and delivery" of course content.

It dismissed the scientific question over implicit bias as irrelevant to the case while acknowledging the parties and their supporters sharply disagree on "the existence of implicit bias in medicine generally" and how the training would affect it, if at all.

Applying the 2022 unanimous SCOTUS ruling in Shurtleff, which found the city of Boston's flag-raising program was not government speech and hence it discriminated by viewpoint against a "Christian flag," the panel conducted a "holistic inquiry" to determine "whether the government intends to speak for itself or to regulate private expression."

Justices Samuel Alito, Clarence Thomas and Neil Gorsuch rejected the majority's three-part test, however, saying the question should be "whether the government is actually expressing its own views or the real speaker is a private party and the government is surreptitiously engaged in the ‘regulation of private speech.'"

California "from beginning to end dictates, controls, and approves the provider, form, purpose, and content of CMEs," Judge Jacqueline Nguyen's opinion says, comparing it to congressionally "mandatory funding of beef commercials by private cattle merchants," privately funded monuments in public parks and specialty license plates.

She distinguished CME content from the trademarks at issue in Matal, since the latter "have not traditionally been used to convey a Government message," are not created or meaningfully reviewed by public officials and the government explicitly denies that registration means it approves of the mark.

Similarly, Boston waited until a religious group sought to raise its own flag before reviewing or controlling the content of any previous applicant's flag, making its "control over the physical premises" or flag-raising schedule "insufficient" to demonstrate government speech.

Not like Apple, Burger King slogans

States have regulated medicine "from time immemorial," Nguyen wrote, quoting with emphasis an 1889 Supreme Court ruling, which the high court reaffirmed 21 years later in upholding the police power over medicine as "too well settled to require discussion."

The California Medical Board has "specifically and continually" adopted and administered CME requirements since 1980, and the Legislature has repeatedly added content requirements since 1992, such as ordering all physicians to complete CMEs on pain management and terminally-ill treatment since 2001 and "cultural and linguistic competence" since 2006.

Khatibi claimed that "CMEs have never been used to convey messages to the public," in Nguyen's paraphrase, that California is comparable to the Patent and Trademark Office and that it's "myopic" to review the long regulatory history of CMEs.

"It would be a serious affront to the Constitution if regulatory history alone were sufficient to immunize speech from First Amendment scrutiny," Nguyen responded, noting the Medical Board's origin in combating "quack doctors in the decades following the Gold Rush."

"Just as we cannot equate something to monuments and conclude it is government speech, we cannot simply deem CMEs distinct from monuments and license plates, conclude they are nontraditional forms for government expression, and then terminate the inquiry," she said.

Khatibi's assertion that California has not been "dreaming up" CME content "has no footing in law or logic," with repeated regulatory and legislative requirements, while the PTO never told Apple how to come up with its early motto "Think Different" or "ordered the noble patrons of Burger King to rate its motto of 'Have it your way,'" Nguyen wrote.