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.)
