The panel denied a petition for panel rehearing and rehearing en banc of the panel’s decision affirming the district court’s dismissal of an action, brought by a physician instructor of continuing medical education (CME) courses and a nonprofit comprised of healthcare professionals and policymakers, alleging that the Medical Board of California’s requirement that CME courses eligible for credit include information about implicit bias violates the Free Speech Clause of the First Amendment.

Dissenting from the denial of rehearing en banc, Judge VanDyke, joined by Judges Bumatay and Tung, wrote that the panel erred in concluding that CME courses are government speech devoid of any First Amendment protection because (1) California has not historically used CME courses to communicate the state’s own messages, (2) those attending CME courses would be unlikely to perceive the instructor’s message as the government’s message, and (3) the state’s regulations otherwise exert very little control over CME instructors’ messages. The panel’s decision puts this circuit out of step with the precedent of the Supreme Court and sister circuits, and even this circuit’s precedent.

Dissenting from the denial of rehearing en banc, Judge Tung, joined by Judges Bumatay and VanDyke, wrote that private instructors of continuing medical education courses do not engage in “government speech,” for the simple reason that they are not the government and they do not speak for the government. A law requiring them to convey a viewpoint they find objectionable thus restricts their private expression and is not exempt from First Amendment scrutiny.

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/12/29/24-3108.pdf