Labor & Employment Law Daily Wrap Up, PROCEDURE—9th Cir.: Appellate court denies rehearing en banc regarding state requirement that accredited CME courses include implicit bias information violates First Amendment, (Jan 6, 2026)

By Robert Margolis, J.D.

Dissenting judges assert that the panel’s affirmance erroneously held CME courses are government speech devoid of First Amendment protection.

Over strong dissents asserting that a Ninth Circuit Court of Appeals panel misapplied Supreme Court precedent on what constitutes “government speech” that is not subject to First Amendment protections, the full court has denied a petition for rehearing en banc of the panel’s affirmance of the dismissal of First Amendment claims by Continuing Medical Education (CME) providers objecting to California’s requirement that their courses include information about implicit bias. The panel that issued the affirmance also denied a petition for rehearing. The panel had held that CME courses taught by private instructors and accredited by private entities are engaging in government speech and thus are not subject to First Amendment protections. Dissenting judges asserted that the panel had misapplied Supreme Court precedent on how to determine what constitutes government speech, putting the decision at odds with decisions of other circuits and prior Ninth Circuit precedent (Khatibi v. Hawkins, No. 24-3108 (9th Cir. Dec. 29, 2025)).

Regulation at issue. Like other states, California conditions medical licenses on completion of accredited CME classes. Recent changes to California’s CME regulations require CME course instructors to include “curriculum that includes the understanding of implicit bias.” Cal. Bus. & Prof. Code § 2190.1(d)(1). Dr. Azadeh Khatibi and the nonprofit corporation Do No Harm, are CME content creators who disagree with the concept of implicit bias and object to its inclusion in their courses. They sued in federal court, challenging the requirements, alleging CME courses are private speech and the government cannot constitutionally compel them to adopt the state’s views on what they allege is a controversial subject, without violating the First Amendment. The district court dismissed their claims, holding that the content of CME courses constitutes government speech and, therefore, is not subject to First Amendment protections. A Ninth Circuit panel affirmed.

The plaintiffs moved for a panel rehearing and rehearing en banc of the panel’s affirmance. The panel unanimously voted to deny the petition for panel rehearing. When the full court voted on whether to rehear the matter en banc, the matter did not receive a majority of votes. Thus, the petitions were denied. However, three judges dissenting from the denial of rehearing en banc issued two dissenting opinions critical of the panel’s decision.

Government speech. The first dissent, written by Judge VanDyke, asserted that the panel misread Supreme Court precedent instructing how to analyze whether speech constitutes government speech. Rather than “examining the manner in which California’s regulations shape or convey the messages involved in CME instructions,” the panel instead erroneously focused “on the scope of California’s regulation of CME courses,” Judge VanDyke wrote. (Emphasis in original.). He used as a framework the multi-factor analysis from Shurtleff v. City of Boston, 596 U.S. 243, 252 (2022), which includes examining “the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.” Id. According to Judge VanDyke, the panel in affirming the district court’s dismissal “paid lip service” to these factors, but essentially reduced its analysis to a single factor: does the government “heavily” or “actively” regulate CMEs? The panel answered that question in the affirmative, but Judge VanDyke took each of the factors to explain why he (and the two judges joining his opinion) analyzes the factors differently.

First as to history, Judge VanDyke concluded that California’s CME regulations have not required courses to include specific conduct, so historically the state rarely, if ever, has communicated government messages through CME courses. California’s “content standards” do not require any particular viewpoint be expressed, he pointed out. He disagreed with California’s argument (and the panel’s decision) that state regulations convey a message about the subjects California deems important for doctors and thus support a finding of government speech. To the extent such regulations convey any message, it is so amorphous and non-specific as to be easily distinguishable from cases finding government speech in monuments or license plates that “communicate specific graphics, slogans, and the like,” he wrote.

On the second Shurtleff factor, he rejected the panel’s holding that “common sense” requires finding that CME course attendees would attribute the content of CMEs to California, rather than the private individuals and entities producing it. He noted that the plaintiffs specifically pled otherwise, and those allegations should have been taken as true on a motion to dismiss. Further, he reasoned that judges who attend Continuing Legal Education (CLE) courses perceive that the instructors speak on their own behalf, not the government’s, and it is therefore plausible that doctors attending CME courses would have the same perception.

Finally, while the panel had recited a long list of the laws California has in place to regulate CMEs, that alone was not dispositive of the third Shurtleff factor, Judge VanDyke reasoned. What matters, he wrote, is whether those regulations, no matter their breadth, leave instructors free to speak about whatever medical topics they choose. Because they require no specific message, they do not support the finding that the government is shaping or controlling any message of the providers.

Not the government. Judge Tung, while joining in Judge VanDyke’s dissent, wrote separately, emphasizing that private instructors are not engaged in government speech “for the simple reason that they are not the government and do not speak for the government.” He pointed out that the plaintiffs are being required to “convey a viewpoint” (that implicit bias explains disparities in income, job opportunities, and healthcare outcomes) with which they disagree. Thus, to Judge Tung, the law requires private actors “to convey a message that the government favors but that Plaintiffs do not,” and such “ideological conformity enforced through private conscription by the state” violates the First Amendment. The panel erred, he concluded, by holding otherwise.

The case is No. 24-3108.

Judges: VanDyke, L.; Tung, C.

Attorneys: Cameron Thomas Norris (Consovoy McCarthy, PLLC) for Azadeh Khatibi. Stephanie Albrecht (Faegre Drinker Biddle & Reath, LLP) for Randy Hawkins.

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