Dr. Azadeh Khatibi is a California-licensed ophthalmologist who teaches continuing medical education (CME) courses. Do No Harm is a nonprofit organization made up of healthcare professionals and policymakers, including at least one member who teaches CME in California. Under California law, physicians and surgeons must complete at least 50 hours of CME every two years, and only courses that meet the standards set by the Medical Board of California are eligible for credit. In 2019, the Legislature enacted Assembly Bill 241, which required that all credit-eligible CME courses include instruction on implicit bias, unless the course qualifies for a narrow exemption, such as being solely dedicated to research or issues that do not include a patient care component. The law defines implicit bias as unconscious attitudes or stereotypes and states that it contributes to disparities in healthcare.
Khatibi taught CME courses that complied with all state requirements except the implicit bias mandate. She opposed including such content, arguing it was irrelevant or counterproductive. In 2023, Khatibi and Do No Harm filed suit in federal district court against officials of the Medical Board of California, in their official capacities. Khatibi and Do No Harm claimed that California’s implicit bias requirement violated their First Amendment rights by compelling them to include specific content in CME courses to receive state accreditation.
The district court dismissed the case. It held that CME courses approved for credit by the Medical Board of California constitute government speech and are therefore not subject to First Amendment scrutiny. The district court explained that when the government speaks for itself, it is entitled to convey its own message without being required to include or permit opposing views. Plaintiffs appealed.
The Ninth Circuit affirmed the district court’s decision. The Ninth Circuit applied the U.S. Supreme Court’s framework from Shurtleff v. City of Boston, which asks whether the government (1) has a history of controlling the expression at issue, (2) is likely to be perceived as the speaker, and (3) maintains substantial control over the content. The Ninth Circuit held that all three factors weighed in favor of the Medical Board officials.
First, the Ninth Circuit found that California has a longstanding tradition of regulating the medical profession, including through mandated CME content. It traced this authority back to the 19th century and noted that the Legislature has regularly required instruction on specific topics such as pain management, geriatric care, and cultural competence.
Second, the Ninth Circuit acknowledged that instructors like Khatibi interact directly with CME attendees. However, the court concluded that physicians are likely to understand that the content of accredited CME reflects state-imposed requirements.
Third, the Ninth Circuit concluded that the Medical Board exercises pervasive control over CME content. The Board requires that implicit bias training be included, imposes instructor qualifications, mandates recordkeeping and evaluation procedures, and retains the authority to audit courses or deny credit. Given this level of control, the Ninth Circuit found that California “controls accredited CMEs from beginning to end.”
Because all three Shurtleff factors supported the conclusion that the CME requirement constituted government speech, the Ninth Circuit held that the First Amendment did not apply. The Ninth Circuit explained that while plaintiffs remain free to teach or advocate their own views, they may not compel the State to grant continuing education credit for content that does not meet its own standards.
The Ninth Circuit affirmed the district court’s judgment.
Khatibi v. Hawkins (9th Cir. July 25, 2025, No. 24-3108) 2025 U.S. App. LEXIS 18544.
Note: Although this case does not directly involve a public school or college, the Ninth Circuit’s holding reinforces the broad scope of the government speech doctrine in regulated educational settings. California public education agencies that develop or approve instructional content for state credit, licensure, or certification, may rely on this decision to defend viewpoint-based content requirements against First Amendment challenges.