Trump judges blast peers for letting California impose 'state-sanctioned groupthink' in medicine

The federal government's refusal to register a supposedly offensive trademark for the Asian-American rock band The Slants prompted the Supreme Court to issue a sweeping precedent that protected First Amendment rights from the government-speech doctrine.

Now eight years later, that ruling is center stage again as the 9th U.S. Circuit Court of Appeals extended the doctrine that steamrolls individual speech under the banner of government speech to validate California medical training. And some dissenting judges nominated by President Donald Trump on that court are raising deep concerns.

A majority of the full appeals court, whose jurisdiction stretches from the Pacific to the Rockies, refused to rehear a challenge to California's imposition of "implicit bias" training in continuing medical education, which doctors must receive to keep their licenses, leaving intact a three-judge panel's ruling that deemed the private courses to be government speech.

The 9th Circuit has become less liberal with Trump's 11 nominees but Democrat nominees still dominate the largest federal appeals court, which has 29 active judges. The rehearing denial doesn't specify the vote count.

"A proper analysis—as prescribed by the Supreme Court, our own court’s prior cases, and our sister circuits—reveals that California’s prior CME regulations did not meaningfully express or shape messages through CME courses" before the Golden State made implicit-bias training a statutory requirement in 2019, the first dissent from refusal to rehear said.

Physicians in CME courses would also be "unlikely to perceive the instructor’s message as the government’s" and the Medical Board of California's "regulations otherwise exert very little control over CME instructors’ messages," Judge Lawrence VanDyke wrote.

He was joined by Judges Patrick Bumatay and Eric Tung, the latter only confirmed in November.

The Trump appointees blasted the "improperly anemic governmental speech analysis" by the panel, which relied on the "mere scope of California’s regulatory scheme" to conclude that "CME attendees perceive instructors as relaying the government’s views," at odds with the "well-pleaded allegations" of the challengers.

Tung also wrote a dissent, joined by VanDyke and Bumatay, that scolded the panel for rebranding private instructors as government agents and sidestepping the scientific debate over the validity of implicit bias, which the California law asserts with no evidence is responsible for healthcare "outcome disparities" by race and sex.

California could have hired its own employees or enlisted volunteers to "spread its message of 'implicit bias' and the deleterious effects of this purported phenomenon," or created "a program in which it was involved 'from beginning to end' in proposing edits or suggestions to solicited course material," to qualify for the government-speech doctrine, Tung wrote.

Perhaps in the interest of efficiency, the state has instead chosen to "commandeer a vast majority of course providers … to proselytize its message," he wrote. This creates "the perception of uniformity on a divisive topic" and imposes "a steep social cost on those in the field who dare to dissent."

The Pacific Legal Foundation, which represents ophthalmologist and CME instructor Azadeh Khatibi and medical advocacy group Do No Harm, told Just the News it was likely to petition the U.S. Supreme Court to hear its challenge. (Co-plaintiff and CME instructor Mary Singleton, an early black female physician, died before oral argument.)

Judges VanDyke and Tung thoroughly explained how "classifying speech given by doctors in their personal capacity, on their own time, with no involvement by any government agency or official as 'government speech,' turns the entire legal framework upside down," PLF senior attorney Caleb Trotter wrote in an email.

While California's law could first reach SCOTUS, it's not PLF's only challenge to implicit-bias mandates in professional regulation that could intrigue the high court.

The libertarian public interest law firm is also representing a Michigan dentist who challenged regulations mandated by Gov. Gretchen Whitmer's executive order on healthcare equity, rather than a statute like California's, which were allegedly enforced through more than 100 investigations that cost some physicians their licenses and fined others. 

PLF told Just the News it's awaiting a state court's decision on the Michigan Department of Licensing and Regulatory Affairs' motion to dismiss, which has been "fully briefed since July."

SCOTUS passed on another challenge to an application of the government-speech doctrine in November, refusing to review an 11th Circuit ruling that upheld a ban on prayer over the public address system by religious teams at games in taxpayer-funded venues.

'What topic would be excluded' under California's content standards?

California's involvement in CME course content is minimal outside the implicit-bias mandate, outsourcing accreditation to private entities but randomly auditing courses and investigating complaints by seeking information such as course rationale and content, educational objectives and "attendance records," according to VanDyke's dissent.

Only for implicit bias does the state require a specific ideological message, that CME instructors provide examples of how implicit bias "affects perceptions and treatment decisions" or detail "strategies to address how unintended biases in decisionmaking may contribute to health care disparities."

VanDyke mocked the panel's "one-factor-to-rule-them-all test" to decide the courses are government speech, based on the government "heavily" or "actively" regulating CMEs. 

While 9th Circuit precedent on government speech is "fairly sparse," its cases "suggest that if a given regulation does not meaningfully control the message being communicated, mere regulation—even extensive regulation—carries little weight, if any, in proving that the government is actually speaking for itself," he wrote.

The 1st, 2nd, 5th and 6th Circuits "likewise focus on whether the government is articulating its own message both overall and for each Shurtleff factor," VanDyke said, referring to the 2022 SCOTUS precedent for determining government speech based on the history of expression, public perception and government role in the message.

The panel's "analysis of each factor was improperly skewed by its heavy reliance on the existence of numerous regulations that have little to no connection to shaping the messages conveyed in CME courses," VanDyke's dissent said.

California's content standards, for example, specify that qualified CMEs "may include, but are not limited to," any of four criteria that VanDyke deems an "incredibly expansive, nonbinding, and nonexhaustive list" that gives instructors "free rein to pick their topics and decide what to say about them."

He puzzled over "what topic would be excluded under this provision," which "does not even prevent CME instructors from expressing messages that conflict with other courses, or indeed even presenting conflicting viewpoints within the same course."

While the state has "requirements that certain licensees take CME courses covering specific subject matter" or "capping how much credit can be earned from courses covering specific subject matter," these regulate the attendees, not CME instructors, the judge said. "Nowhere does California force private parties to create CME courses on those specific topics."

Referring to The Slants case, VanDyke wrote the justices ruled out trademarks as government speech, "despite being significantly regulated," because they "have not traditionally been used to convey a Government message." As the high court said, "simply affixing a government seal of approval" doesn't transform private speech into government speech, he argued.

'Any professional accreditation regime' at risk of becoming state's mouthpiece

Tung's dissent emphasizes the historic controversy over both the validity of implicit bias as a real medical phenomenon and its relevance to any given CME course.

The theory "is rooted in neither evidence nor fact, disregards other potential factors that could better explain outcome disparities, and hastily (and inaccurately) identifies racism or sexism as the primary cause," Tung wrote, summarizing the plaintiffs' arguments. They also object to implicit bias for "needlessly setting one racial (or other) group against another."

California simply asserts, as legislative "findings," that implicit bias "often" contributes to unequal treatment based on several traits, especially for African Americans, most specifically that it's responsible for black women being "three to four times more likely than white women to die from pregnancy-related causes nationwide."

Tung reiterated that "no one disputes" the plaintiffs are private, receive no government funding and "remain private speakers" under the law itself, or that the government doesn't own the course materials used by CME instructors.

If extensive regulation were the sine qua non of government speech, "doctors could be forced to affirm viewpoints they find odious as a condition of maintaining their licenses," Tung said. 

"Indeed, any professional accreditation regime, now open to and supported by a vast network of private providers expressing differing (and perhaps conflicting) viewpoints, would be in jeopardy of being converted into an engine of state-sanctioned groupthink if those providers could be compelled to announce a singular position," the judge said.