By Jordan Gierke
Khatibi, et al. v. Hawkins, et al., Case No. 24-3108 (9th Cir.). On July 25, 2025, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of the plaintiffs’ claims. In its order, the Ninth Circuit held that Continuing Medical Education (CME) courses required by California law and approved by the Medical Board of California (MBC) constitute government speech and are not subject to First Amendment free speech challenges.
To determine whether something constitutes government speech, courts examine “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. at 1141 (quoting Shurtleff v. City of Bos., Massachusetts, 596 U.S. 243, 252 (2022)). First, California and the MBC have a long-established role in regulating medical education and CME requirements to “protect the public against incompetent, impaired, or negligent physicians,” reflecting a clear pattern of the state communicating professional standards to doctors, supporting the conclusion that CME content constitutes government speech. Id. at 1147. Additionally, although private instructors deliver the courses, CME courses are created specifically for “licensed medical professionals” who understand that their “profession is heavily regulated since they must comply with myriad requirements, including various CME mandates, to maintain their licenses.” Id. at 1150. Physicians typically do not take CME courses unless they are “eligible for credit,” suggesting that licensees recognize CMEs are mandated and approved by the MBC, and that the content reflects the state’s message rather than the views of the individual instructor. Id. Finally, California sets required topics and establishes standards for approving, auditing, and rejecting courses. From start to finish, California “dictates, controls, and approves the provider, form, purpose, and content” of CME courses, demonstrating that the State controls the content. Id. at 1141–42.
On November 18, 2019, the Legislature amended sections 2190.1 and 3524.5, and added section 2736.5 to the Business and Professions Code through AB 241 (Kamlager-Dove) (Chapter 417, Statutes of 2019). The 2019 amendment mandated that CME courses include a curriculum on understanding implicit bias, effective January 1, 2022. The Legislature required this curriculum in response to disparate treatment based on “race, ethnicity, gender identity, sexual orientation, age, disability, and other characteristics,” which “contributes to health disparities by affecting the behavior of physicians and surgeons, nurses, physician assistants, and other healing arts licensees.” Khatibi, 145 F.4th at 1143.
On August 1, 2023, Dr. Khatibi and the advocacy organization Do No Harm filed a complaint against the MBC, challenging the CME requirement in section 2190.1(d)(1) of the Business and Professions Code, which mandates that CME courses eligible for credit toward license renewal include training on implicit bias in healthcare. [see 30:1 CRLR 20]. The plaintiffs argued that the new implicit bias content violated their free speech rights by compelling them to express or support views with which they disagreed. On May 2, 2024, the trial court dismissed the case, concluding that CME constitutes government speech immune from First Amendment scrutiny and that the plaintiffs’ claim was not plausible. The plaintiffs appealed.
On August 8, 2025, the petitioners filed a petition for a panel rehearing and a rehearing en banc of their case due to inconsistencies between the panel’s decision and established First Amendment precedent, which they argue warrant further review to clarify the limits of the government speech doctrine and protect licensed professionals’ free speech rights. The California Attorney General’s Office, Defendants-Appellees, filed their response on September 23, 2025. In its brief, the AG defends the panel’s ruling as a faithful, cautious application of the Supreme Court’s government-speech doctrine to a uniquely state-controlled CME system. It argues the plaintiffs’ concerns about overreach are unfounded because the ruling is limited to California’s specific regulatory framework and does not endanger broader professional or academic speech rights. As of this writing, the Ninth Circuit has not ruled on the petition.