Khatibi v. Hawkins

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-3108

AZADEH KHATIBI, M.D., an

individual; DO NO HARM, a

D.C. No.

Virginia nonprofit corporation,

2:23-cv-06195-

MRA-E

Plaintiffs - Appellants,

v.

OPINION

RANDY HAWKINS, in his official

capacity as President of the Medical

Board of California; LAURIE ROSE

LUBIANO, in her official capacity as

Vice President of the Medical Board

of California; REJI VARGHESE, in

his official capacity as Executive

Director of the Medical Board of

California; MARINA O’CONNOR,

in her official capacity as Chief of

Licensing, Medical Board of

California; RYAN BROOKS, in his

official capacity as Secretary of the

Medical Board of California,

Defendants - Appellees.

Appeal from the United States District Court

for the Central District of California

Monica Ramirez Almadani, District Judge, Presiding

2 KHATIBI V. HAWKINS

Argued and Submitted March 27, 2025

Pasadena, California

Filed July 25, 2025

Before: A. Wallace Tashima, Jacqueline H. Nguyen, and

Salvador Mendoza, Jr., Circuit Judges.

Opinion by Judge Nguyen

SUMMARY *

First Amendment/Government Speech

The panel affirmed 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.

Applying the factors set forth in Shurtleff v. City of

Boston, 596 U.S. 243 (2022), the panel held that under

California’s scheme, CME courses eligible for credit by the

Medical Board of California are government speech. First,

California has a longstanding tradition of regulating the

medical profession. Second, the public would tend to

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

KHATIBI V. HAWKINS 3

attribute CME speech to the government rather than to CME

instructors. Finally, California controls the content of CME

courses and imposes several restrictions on their form and

delivery.

Because CME courses eligible for credit are government

speech, they are immune from the strictures of the Free

Speech Clause.

COUNSEL

Joshua P. Thompson (argued) and Caleb R. Trotter, Pacific

Legal Foundation, Sacramento, California; Cameron T.

Norris, Consovoy McCarthy PLLC, Arlington, Virginia; for

Plaintiffs-Appellants.

Kristin Liska (argued) and Stephanie Albrecht, Deputy

Attorneys General; Lara Haddad, Supervising Deputy

Attorney General; Thomas S. Patterson, Senior Assistant

Attorney General; Rob Bonta, California Attorney General;

Office of the California Attorney General, San Francisco,

California; for Defendants-Appellees.

Andrew L. Schlafly, Attorney at Law, Far Hills, New Jersey,

for Amicus Curiae Association of American Physicians and

Surgeons.

Thomas A. Berry and Alexander R. Khoury, Cato Institute,

Washington, D.C., for Amicus Curiae the Cato Institute.

Madison Hahn, Young America's Foundation, Reston,

Virginia; Brooks E. Harlow, Technology &

Communications Law PLLC, Herndon, Virginia; for

Amicus Curiae Young America's Foundation.

4 KHATIBI V. HAWKINS

Stanley J. Brown, Benjamin A. Fleming, and Shannon

Zhang, Hogan Lovells US LLP, New York, New York;

David S. Tatel, Amanda N. Allen, and Ashley Ifeadike,

Hogan Lovells US LLP, Washington, D.C.; Dariely

Rodriguez, Adria Bonillas, and Kathryn Youker, Lawyers'

Committee for Civil Rights Under the Law, Washington,

D.C.; for Amici Curiae the NAACP California Hawaii State

Conference, the Lawyers' Committee for Civil Rights Under

Law, and the Lawyers' Committee for Civil Rights of the San

Francisco Bay Area.

OPINION

NGUYEN, Circuit Judge:

California’s regulation of the medical profession dates

back to the late 1800s when, following the Gold Rush, it

suffered an epidemic of “cults and fads and a great deal of

quackery.” See Linda A. McCready & Billie Harris, FROM

QUACKERY TO QUALITY ASSURANCE: THE FIRST TWELVE

DECADES OF THE MEDICAL BOARD OF CALIFORNIA 2–4

(MED. BD. CA. 1995). In response to this crisis, the State

adopted the Medical Practice Act of 1876. Id. at 3. The Act

created the Board of Medical Examiners, which sought to

impose basic regulations on the practice of medicine. Id.

Today, the Medical Board of California, as the Board of

Medical Examiners is now known, aims to ensure “the

continuing competence of licensed physicians and

surgeons.” CAL. BUS. & PROF. CODE § 2190. 1 It “adopt[s]

1

All undesignated statutory references are to this code.

KHATIBI V. HAWKINS 5

and administer[s] standards for the continuing education of

those licensees,” obligating them to complete at least 50

hours of accredited continuing medical education (“CME”)

every two years. Id.; Cal. Code Regs. (CCR) tit. 16,

§ 1336(a). Not just any CME, however, qualifies for credit.

Only classes that meet various state requirements are

eligible. See id. at § 1337(b). For instance, CME courses

must at least “increase the knowledge, skills, and

professional performance that a physician and surgeon uses

to provide care,” address “cultural and linguistic competency

in the practice of medicine,” and include information about

“the understanding of implicit bias.” See §§ 2190.1(a),

(b)(1), (d)(1).

This case challenges one of these CME requirements,

namely section 2190.1(d)(1)’s mandate to include

information about implicit bias. Plaintiffs Dr. Khatibi and

Do No Harm (collectively, “Dr. Khatibi” or “Plaintiffs”)

claim that the implicit bias requirement violates the First

Amendment. 2 The district court dismissed their suit. It held

that CMEs eligible for credit constitute government speech

and are therefore “‘not subject to scrutiny under the Free

Speech Clause.’” See Khatibi v. Hawkins, No. 2:23-cv-

06195, 2024 U.S. Dist. LEXIS 81485, *9 (C.D. Cal. May 2,

2024) (Khatibi II) (quoting Pleasant Grove City v. Summum,

555 U.S. 460, 464 (2009); see also Shurtleff v. City of

Boston, 596 U.S. 243, 247–48 (2022) (“[W]hen the

2

Our opinion does not address the allegations of Dr. Marilyn Singleton,

who was originally another plaintiff in this case. She passed away after

the notice of appeal was filed, and we construe and grant Plaintiffs’

notice as a motion to dismiss Dr. Singleton as a party in this appeal under

Federal Rule Civil Procedure 25(a)(1)–(2). See Bordallo v. Reyes, 763

F.2d 1098, 1101 (9th Cir. 1985) (construing “whether a motion, however

styled, is appropriate for the relief requested”).

6 KHATIBI V. HAWKINS

government speaks for itself, the First Amendment does not

demand airtime for all views. After all, the government must

be able to promote a program . . . in order to function.”).

Plaintiffs appealed. We affirm.

“[W]hether the government intends to speak for itself” is

determined by a “holistic inquiry” that considers “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.” Shurtleff, 596 U.S. at 252. On

balance, these factors weigh in favor of California. We

therefore hold that under the State’s scheme, CMEs eligible

for credit by the Medical Board of California are government

speech.

Our holding is narrow. It recognizes that when

California—from beginning to end—dictates, controls, and

approves the provider, form, purpose, and content of CMEs,

it is in fact the State that “speaks” or expresses its views.

California does so consistent with its tradition, “from time

immemorial,” of protecting its populace from the

“consequences of ignorance and incapacity” in medicine, a

profession “upon which health and life depend” and requires

the most careful preparation—propositions that have been

“too well settled to require discussion.” See Dent v. West

Virginia, 129 U.S. 114, 122 (1889); Watson v. Maryland,

218 U.S. 173, 176 (1910).

I.

California law sets forth various CME requirements “to

ensure the continuing competence of licensed physicians and

surgeons.” § 2190. CMEs must “(1) have a scientific or

clinical content with a direct bearing on the quality or cost-

effective provision of patient care, community or public

KHATIBI V. HAWKINS 7

health, or preventive medicine, (2) concern quality

assurance or improvement, risk management, health facility

standards, or the legal aspects of clinical medicine,

(3) concern bioethics or professional ethics, (4) are designed

to improve the physician-patient relationship and quality of

physician-patient communication,” or otherwise “serve to

maintain, develop, or increase the knowledge, skills, and

professional performance that a physician and surgeon uses

to provide care, or to improve the quality of care provided to

patients.” Id. § 2190.1(a) (cleaned up).

The State charges its Medical Board to “adopt and

administer standards for the continuing education of those

licensees.” Id. § 2190. The Board, in turn, requires that all

licensed physicians complete at least 50 hours of approved

CME every two years. CCR tit. 16, § 1336(a). Only

programs the Board deems “acceptable” are approved for

CME credit. Id. §§ 1337(b), 1300.4(e). Courses are

“acceptable” if they meet the express criteria of section

2190.1 and accompanying regulations. See id. § 1337.5.

“The content of the course or program shall be directly

related to patient care, community health or public health,

preventive medicine, quality assurance or improvement, risk

management, health facility standards, the legal aspects of

clinical medicine, bioethics, professional ethics, or

improvement of the physician-patient relationship.”

Id.§ 1337.5(a)(3); see also id. § 1337.5(a)(1)–(7) (imposing

requirements on faculty, course rationale and content,

methodology of instruction, evaluation, and attendance).

Certain programs by the California Medical Association,

American Medical Association, and American Academy of

Family Physicians are preapproved for CME credit. Id.

§ 1337(a)–(b). The Board does “not give prior approval to

individual courses or programs; however, the division will

8 KHATIBI V. HAWKINS

randomly audit courses or programs submitted for credit in

addition to any course or program for which a complaint is

received.” Id. § 1337.5(b). In addition, no credit is awarded

for “any course deemed unacceptable by the division after

an audit.” Id. § 1337.5(c).

In 2019, the Legislature enacted Assembly Bill (A.B.)

241. A.B. 241 amended section 2190.1 to require that “all

continuing medical education courses … contain curriculum

that includes the understanding of implicit bias.” See

§ 2190.1(d)(1). Under A.B. 241, CMEs approved for credit

must contain “(1) Examples of how implicit bias affects

perceptions and treatment decisions of physicians and

surgeons, leading to disparities in health outcomes” or

“(2) Strategies to address how unintended biases in

decisionmaking may contribute to health care disparities by

shaping behavior and producing differences in medical

treatment along lines of race, ethnicity, gender identity,

sexual orientation, age, socioeconomic status, or other

characteristics.” Id. at § 2190.1(e). CMEs by out-of-state

providers or “dedicated solely to research or other issues that

does not include a direct patient care component” are exempt

from the requirement. Id. at § 2190.1(d)(2). A.B. 241

supplements section 2190.1(b)(1)’s separate cultural and

linguistic competence requirement, which the Legislature

enacted in 2005. See 2005 Cal. Stat. ch. 514 § 2; see also

§ 2190.1(c)(1)–(3) (mandating all CMEs to incorporate

content such as about the use of proper names and pronouns

in therapeutic relationships and application of “culturally,

ethnically, and sociologically inclusive data to the process of

clinical care”).

The Legislature passed A.B. 241 because it had found

that implicit bias, “meaning the attitudes or internalized

stereotypes that affect our perceptions, actions, and

KHATIBI V. HAWKINS 9

decisions in an unconscious manner, exists, and often

contributes to unequal treatment of people based on race,

ethnicity, gender identity, sexual orientation, age, disability,

and other characteristics.” 2019 Cal. Stat. ch. 417 § 1(a).

“Implicit bias,” in the Legislature’s view, “contributes to

health disparities by affecting the behavior of physicians and

surgeons, nurses, physician assistants, and other healing arts

licensees.” Id. § 1(b); see also id. § 1(c)–(e) (citing

“remarkably consistent” evidence of disparities based on

race, ethnicity, gender, and sexual orientation, “even after

adjusting for” other factors).

Plaintiffs disagree. Dr. Khatibi is a California-licensed

physician and Board-certified ophthalmologist. She is a

frequent organizer and instructor of CMEs, and her past

courses have been approved by state-authorized providers.

Her courses have also complied with all state requirements

apart from the implicit bias one. Do No Harm is a Virginia-

based nonprofit comprised of healthcare professionals and

policymakers. It has at least one member who teaches CMEs

in California who believes implicit bias trainings “risk

infecting healthcare decisions.”

Contesting the efficacy of any training on the matter 3

and alleging that the implicit bias requirement violates free

3

Plaintiffs also appear to doubt the existence of implicit bias in medicine

generally; they allege that section 2190.1(d)(1) “is unlikely to address

the problem of implicit bias in healthcare, if any.” (emphasis added).

Meanwhile, the Board explains that the requirement is essential to the

practice of medicine, as deemed by the Legislature, and is “closely

related” to that purpose. Some amici echo the Board’s points,

contending that “[v]irtually every major organization focused on the

science of medicine has recognized the existence and impact of implicit

bias in the medical sphere” and that its existence is not “subject to

10 KHATIBI V. HAWKINS

speech rights, Plaintiffs sued the Medical Board of

California. The district court dismissed the operative First

Amended Complaint, holding that “CME courses in

California constitutes government speech.” Khatibi II, 2024

U.S. Dist. LEXIS 81485, at *23. The district court noted that

Plaintiffs may “choose to no longer instruct CME courses

for credit, as is their right, or err their grievances at the ballot

box because ‘it is the democratic electoral process that first

and foremost provides a check on government speech.’” Id.

at *25 (quoting Walker v. Texas Div., Sons of Confederate

Veterans, Inc., 576 U.S. 200, 207 (2015)). Plaintiffs timely

appealed.

II.

“We review de novo a district court order granting a

motion to dismiss for failure to state a claim.” Olson v.

California, 104 F.4th 66, 76 (9th Cir. 2024) (en banc). “To

survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (cleaned up). This is “a context-

specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Id. at 679.

A.

“The Free Speech Clause restricts government

regulation of private speech; it does not regulate government

reasonable dispute.” Still, other amici agree with Plaintiffs and find

implicit bias controversial, even divisive.

Like the district court, we express no view on the issue, which is

immaterial to whether CMEs are government speech. See also Khatibi

v. Hawkins, No. 2:23-cv-06195, 2023 U.S. Dist. LEXIS 221328, at *4,

n.1 (C.D. Cal. Dec. 11, 2023).

KHATIBI V. HAWKINS 11

speech.” Summum, 555 U.S. at 467–68 (collecting cases);

accord Shurtleff, 596 U.S. at 251. “A government entity has

the right to speak for itself . . . and to select the views that it

wants to express.” Summum, 555 U.S. at 467–68 (cleaned

up). “Indeed, it is not easy to imagine how government

could function if it lacked this freedom.” Id. at 468. After

all, “[w]hen the government … formulate[s] policies” or

“implement[s] programs, it naturally chooses what to say

and what not to say.” Shurtleff, 596 U.S. at 251; see also

Summum, 555 U.S. at 468 (“‘It is the very business of

government to favor and disfavor points of view.’” (quoting

Nat’l Endowment for Arts v. Finley, 524 U.S. 569, 598

(1998) (Scalia, J., concurring in judgment))).

“A government entity may exercise this same freedom to

express its views when it receives assistance from private

sources for the purpose of delivering a government-

controlled message.” Summum, 555 U.S. at 468. “This does

not mean that there are no restraints on government speech.

For example, government speech must comport with

the Establishment Clause. The involvement of public

officials in advocacy may be limited by law, regulation, or

practice. And of course, a government entity is ultimately

accountable to the electorate and the political process for its

advocacy. If the citizenry objects, newly elected officials

later could espouse some different or contrary position.” Id.

at 468–69 (cleaned up). Additionally, “while the

government-speech doctrine is important—indeed,

essential—it is a doctrine that is susceptible to dangerous

misuse. If private speech could be passed off as government

speech by simply affixing a government seal of approval,

government could silence or muffle the expression of

disfavored viewpoints. For this reason, we must exercise

12 KHATIBI V. HAWKINS

great caution before extending our government-speech

precedents.” Matal v. Tam, 582 U.S. 218, 235 (2017).

B.

The “boundary between government speech and private

expression can blur when, as here, a government invites the

people to participate in a program.” Shurtleff, 596 U.S. at

252; see also Summum, 555 U.S. at 470. “In those situations,

when does government-public engagement transmit the

government’s own message? And when does it instead

create a forum for the expression of private speakers’ views?

In answering these questions, we conduct a holistic inquiry

designed to determine whether the government intends to

speak for itself or to regulate private expression.” 4 Shurtleff,

596 U.S. at 252. Among the factors to consider in this

analysis are “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. (collecting cases).

Take, for example, Johanns v. Livestock Marketing

Association, 544 U.S. 550, 560 (2005), which upheld the

4

The government speech analysis thus sometimes interfaces with the

public forum doctrine. See, e.g., Shurtleff, 596 U.S. at 248–55 (noting

that City Hall was a “public forum”); Walker, 576 U.S. at 214

(considering how “license plates are not a traditional public forum for

private speech”). See also Cong. Rsch. Serv., Government Speech and

Government as Speaker, CONSTITUTION ANNOTATED. Critical to the

public forum doctrine is that “[t]he government does not create a public

forum by inaction or by permitting limited discourse, but only by

intentionally opening a nontraditional forum for public discourse.” See

Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985)

(citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,

46 (1983)).

KHATIBI V. HAWKINS 13

mandatory funding of beef commercials by private cattle

merchants. The Supreme Court held that the commercials in

question were government speech, not compelled private

speech, because the government “effectively controlled”

their message. Id. This was so, the Supreme Court reasoned,

because “the message set out in the beef promotions is from

beginning to end the message established by the Federal

Government.” Id. at 560–61. “Thus, Congress and the

Secretary have set out the overarching message and some of

its elements, and they have left the development of the

remaining details to an entity whose members are

answerable to the Secretary.” Id. at 561.

Similarly, in Summum, the Supreme Court held that

monuments in public parks, even those financed or donated

by private parties, constituted government speech because

the government has always exercised control and “final

approval authority” over the selection of which monuments

to place in a park. 555 U.S. at 472–73. The Court

emphasized how governments “have long used monuments

to speak to the public,” in fact “[s]ince ancient times.” Id. at

470. And in Walker, the Court applied Summum to specialty

license plates in Texas and held that they, too, were

government speech. Walker, 576 U.S. at 209–10.

According to the Court, states, including Texas, have

historically used plates for messaging, the public identifies

them with the state, and Texas maintains “direct control”

over their content. Id. at 210–13. It did not matter much that

“private parties take part in the design” of the specialty plates

or that they convey countless messages. See id. at 217

(“Texas’s desire to communicate numerous messages does

not mean that the messages conveyed are not Texas’s

own.”); id. (stressing that the “holding in Summum was not

dependent on the precise number of monuments found

14 KHATIBI V. HAWKINS

within the park”); see also id. at 221 (Alito, J., dissenting)

(noting over 350 specialty plates with distinct messages

ranging from sports teams to religious organizations).

In contrast, in Matal, the Supreme Court held that

trademarks were private and not government speech. 582

U.S. at 239. The Patent and Trademark Office (“PTO”) had

rejected Tam’s trademark application related to his band,

“THE SLANTS,” which was intended to “reclaim” a

“derogatory term for persons of Asian descent.” Id. at 223,

228. The Court held that the state’s rejection constituted

viewpoint discrimination, not government speech because

trademarks “have not traditionally been used to convey a

Government message;” the government “does not dream

up,” edit, or meaningfully review trademarks; and the public

does not associate trademarks with the government. Id. at

223, 235–38. The Court also noted how the PTO “made it

clear that registration does not constitute approval of a

mark.” Id. at 237. Matal thus distinguished trademarks from

the license plates in Walker, stating that Walker “likely

marks the outer bounds of the government-speech doctrine.”

Matal, 582 U.S. at 238.

The Supreme Court likewise weighed the same factors

to find private speech in Shurtleff. Boston had allowed

private groups to raise flags outside its City Hall without

denial or any control of flags’ contents—that is, until 2017,

when it rejected a group’s “Christian flag.” Shurtleff, 596

U.S. at 248. Like the PTO’s rejection of the trademark in

Matal, Boston’s rejection of the flag constituted viewpoint-

based discrimination. Id. Acknowledging that while the

history of flying flags generally weighed toward finding

government speech, the Court found that the history of

Boston’s specific flag-flying program was ambiguous, just

like the public perception of who speaks through the city’s

KHATIBI V. HAWKINS 15

flagpole. Id. at 254–55. While Boston did fly its own flags

outside City Hall, it had also allowed private groups to use

the flagpole without reviewing or controlling those groups’

flags. Id. The key issue was therefore government control.

And because Boston never regulated any other flag’s

contents, the Court ruled that flag-flying outside the City

Hall constituted private speech. Boston’s control over the

physical premises or over flag-raisings’ schedule was

insufficient. Id. at 256. Boston “could easily have done

more to make clear it wished to speak for itself by raising

flags,” the Court observed, and it simply did not. Id. at 257–

58.

Accordingly, while “[t]here may be situations in which

it is difficult to tell whether a government entity is speaking

on its own behalf or is providing a forum for private speech,”

see Summum, 555 U.S. at 470, the Supreme Court is clear

that the test to determine government speech is a “holistic”

one. Shurtleff, 596 U.S. at 252. The “review is not

mechanical; it is driven by a case’s context rather than the

rote application of rigid factors.” Id. Factors that are

typically considered are the history of expression at issue,

the perception of who is speaking, and the extent of

governmental control over the expression. Id. If these

factors show that the government is “engaging in [its] own

expressive conduct, then the Free Speech Clause has no

application.” Summum, 555 U.S. at 467–68 (collecting

cases).

III.

Applying these principles with “great caution,” see

Matal, 582 U.S. at 235, we consider whether, under

circumstances specific to California, CMEs eligible for

Board credit constitute government speech. We hold that the

16 KHATIBI V. HAWKINS

Shurtleff factors of history, public perception, and control

weigh in favor of concluding that they are.

A.

“The health professions differ from other licensed

professions because they treat other humans, and their

treatment can result in physical and psychological harm to

their patients. This is why there is a historical tradition of

states restricting the medical practices health care providers

can use, while not, for instance . . . preventing [lawyers] from

discussing legal tax avoidance techniques.” See Tingley v.

Ferguson, 47 F.4th 1055, 1083 (9th Cir. 2022) (emphasis in

original) (cleaned up). Indeed, “it has been the practice of

different States, from time immemorial, to exact in” the

medical profession “a certain degree of skill and learning

upon which the community may confidently rely.” Dent,

129 U.S. at 122 (emphasis added); see also Hawker v. New

York, 170 U.S. 189, 192–93 (1898) (upholding this authority

as a “clear . . . proper exercise” of a state’s police powers).

So rooted in tradition is this practice that the Supreme Court

deemed it—in 1910—“too well settled to require

discussion.” Watson, 218 U.S. at 176.

California, for its part, “has long regulated the practice

of medicine as an exercise of the police power.” Arnett v.

Dal Cielo, 923 P.2d 1, 2 (Cal. 1996) (recapping the history

of the Board and the Medical Practice Act of 1876).

California’s Medical Board has generally been “charged

with the duty to protect the public against incompetent,

impaired, or negligent physicians” since the 1870s. See id;

Ex parte Gerino, 77 P. 166, 168–69 (Cal. 1904) (upholding

the Board’s primordial requirements for practicing

medicine). And the Board has specifically and continually

“adopt[ed] and administer[ed]” CME requirements since

KHATIBI V. HAWKINS 17

1980. See, e.g., § 2190; 1980 Cal. Stat. ch. 1313 § 2

(ordering the Board to establish CME requirements); 2011

Cal. Stat. ch. 236 § 2 (authorizing the Board to set standards

for CMEs related to chronic diseases and lifestyle

behaviors); CCR tit. 16, § 1337.5 (1990) (outlining

standards); id. (2025) (same). The Legislature, too, has

conceived of its own content requirements since 1992,

requiring that all credit-eligible CMEs at least (1) focus on

“scientific or clinical content” tied to patient care, cost-

effectiveness, public health, or preventative medicine;

(2) address quality assurance, risk management, facility

standards, or legal aspects of clinical practice; (3) relate to

bioethics or professional ethics; or (4) improve physician-

patient relationship. See § 2190.1; 1992 Cal. Stat. ch. 331

§ 1.

The Legislature has since continued to expand CME

requirements. Compare Walker, 576 U.S. at 211–12

(considering Texas’s authorization of various plates’

messages over the past several decades). Beginning 2001,

for example, the Legislature has ordered all physicians to

complete CMEs in pain management and the treatment of

the terminally ill, see §§ 2190.5–2190.6; 2001 Cal. Stat. ch.

518. It has also required all general internists and family

physicians who treat a specific percentage of elderly patients

to complete training in geriatric medicine around the same

time. See § 2190.3; 2000 Cal Stat. ch. 440. All CMEs, since

2006, must also address cultural and linguistic competence

to be eligible for credit. See § 2190.1(b)(1); 2005 Cal Stat.

ch. 514.

Conversely, the Legislature has excluded certain CMEs

from credit from 1992 to 2021. During that time, licensees

could not earn credit for CMEs on medical office

management, billing, coding, and marketing, though the

18 KHATIBI V. HAWKINS

Legislature now permits up to 30 percent of credit for these

topics. See § 2190.15(i); 2021 Cal. Stat. ch. 612.

Accordingly, California has not only long designated which

CME courses qualify for credit, but also which courses do

not.

The first factor of history therefore weighs decisively in

favor of the State. There is no question that California has

actively regulated the medical profession since the late

nineteenth century, and the Board, in one way or another,

has imposed qualifications on the practice of medicine ever

since. It has also specifically adopted, updated, and enforced

CME standards for almost half a century. Dr. Khatibi makes

no particularized allegation to the contrary. She instead

advances several arguments that either misunderstand the

nature of the government speech inquiry or raise false

alarms. None is availing.

Dr. Khatibi insists that CMEs have never been used to

convey messages to the public. “At most,” she argues, the

CME scheme merely “shows that the government is

communicating the importance of certain subjects to medical

professionals,” not the public. Dr. Khatibi also likens

California with the PTO in Matal; both, in her view, have no

history of “‘dream[ing] up’” content for the speech at issue.

See 582 U.S. at 235–39. Lastly, she says that looking to the

lengthy regulatory history is “myopic” and improper

because “the results would be sweeping” and susceptible to

“‘dangerous misuse.’” See id. at 235.

Dr. Khatibi’s concerns are misplaced. It would be a

serious affront to the Constitution if regulatory history alone

were sufficient to immunize speech from First Amendment

scrutiny. However, as the Supreme Court explained, history

is but one factor in the context-driven, “holistic inquiry

KHATIBI V. HAWKINS 19

designed to determine whether the government intends to

speak for itself.” See Shurtleff, 596 U.S. at 252; Summum,

555 U.S. at 484 (Breyer, J., concurring) (“[T]he ‘government

speech’ doctrine is a rule of thumb, not a rigid category”).

Indeed, it is precisely this “holistic inquiry” that serves as a

bulwark against abuse. It is also why Dr. Khatibi’s

arguments fail. Just as we cannot equate something to

monuments and conclude it is government speech, we

cannot simply deem CMEs distinct from monuments and

license plates, conclude they are nontraditional forms for

government expression, and then terminate the inquiry. To

do so would begin and end the analysis at the mere “starting

point.” See Shurtleff, 596 U.S. at 255.

It bears repeating that our analysis “is driven by a case’s

context rather than the rote application of rigid factors.” Id.

at 252. And the historical context of the implicit bias and

other CME requirements is California’s longstanding

tradition of regulating the medical profession since the

1870s. See, e.g., Arnett, 923 P.2d at 2–3. California created

the Board to combat the problem of quack doctors in the

decades following the Gold Rush. See Gerino, 77 P. at 167;

FROM QUACKERY TO QUALITY ASSURANCE 2–4. The Board

imposed basic qualifications on the practice of medicine

since, and consistent with that history, eventually

implemented and enforced the CME scheme in place for the

past several decades. See, e.g., Gerino, 77 P. at 167; 1980

Cal. Stat. ch. 1313 § 2. If Shurtleff’s historical analysis

examined flags’ contents, materials, symbolism, location,

and how frequently they were raised (including those of

England’s Windsor Castle), see 596 U.S. at 254, then

looking to California’s history of regulating the medical

profession is not, as Dr. Khatibi contends, “myopic.”

Rather, it is the crystal-clear consideration compelled by the

20 KHATIBI V. HAWKINS

“holistic inquiry designed to determine whether the

government intends to speak for itself.” See id. at 252;

compare Summum, 555 U.S. at 470–72 (broadly considering

the histories of various public parks and monuments,

including pyramids). 5

Moreover, Dr. Khatibi’s claim that the CME

requirements do not express the State’s views rests on a

fundamental misunderstanding of how government works.

“‘When a government entity embarks on a course of action,

it necessarily takes a particular viewpoint and rejects

others.’” See Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175,

187 (2024) (quoting Matal, 582 U.S. at 234); see also

Walker, 576 U.S. at 207–08 (exemplifying how a public

vaccination program necessarily promotes vaccines while

discouraging opposing perspectives). This is precisely why

the government speech doctrine exists. For without it,

government would cease to function. See Summum, 555

U.S. at 468; accord Shurtleff, 596 U.S. at 251. See also

Walker, 576 U.S. at 207 (“How could a city government

create a successful recycling program if officials . . . had to

include . . . a long plea from the local trash disposal

enterprise demanding the contrary?”).

In other words, California’s CME requirements

necessarily reflect, as Dr. Khatibi effectively concedes, “the

importance of certain subjects to medical professionals.”

The same holds true for California’s lengthy history of

5

Not all states share California’s history or requirements. Colorado, for

example, only began imposing CME requirements in 2024. See COLO.

REV. STAT. § 12-240-130.5 (2024). It had expressly barred them until

2023. See COLO. REV. STAT. ANN. § 12-240-130(3) (2023). Montana

and South Dakota, meanwhile, impose no CME requirements on

physician-licensees. See MONT. CODE ANN. § 37-1-141 (2023); S.D.

CODIFIED LAWS § 36-4-24.1 (2025).

KHATIBI V. HAWKINS 21

regulation. That history reflects the State’s evolving

judgment of what subjects it has deemed essential to “ensure

the continuing competence of licensed physicians and

surgeons,” of which implicit bias is one. 6 §§ 2190,

2190.1(d)(1).

Dr. Khatibi’s assertion that there is no history of

California “dreaming up” content for CMEs therefore has no

footing in law or logic. As discussed, the Legislature has

specified CME content requirements—i.e., what it believes

are vital for the continued competence of licensees—for

decades. See, e.g., 1992 Cal. Stat. ch 331 § 1 (requiring, for

example, that CMEs “[c]oncern bioethics”); 2005 Cal. Stat.

ch. 514 § 2 (requiring all CMEs to address cultural and

linguistic competence). And the Board itself has long set

requirements for CME faculty qualifications, course

rationale, course content, course methodology, and even

what must be on evaluation forms. See, e.g., CCR tit. 16,

§ 1337.5 (1990); id. (2002); id. (2025).

California thus sharply differs from the PTO in Matal.

The PTO has no comparable history of telling companies

like Sony to pick “‘make.believe’” as its slogan from a list

of qualified slogans. See Matal, 582 U.S. at 235–37. Nor

has it ever commanded Apple how to, or who in its team

6

Implicit bias certainly appears important to California beyond the CME

context. See, e.g., 2020 Cal. Stats. ch. 317 § 2 (criticizing “[c]urrent law,

as interpreted by courts” that tolerates “negative implicit biases” in

criminal proceedings and creating the Racial Justice Act); CAL. HEALTH

& SAF. CODE §§ 123630.1–123630.3 (identifying implicit bias as a

driver of “health disparities in communities of color” and requiring

perinatal hospitals to “implement evidence-based implicit bias

programs). Regardless of its merit, the implicit bias CME requirement

thus aligns with California’s other priorities and judgment—shaped by

its electorate’s “informed opinion.” See Walker, 576 U.S. at 207.

22 KHATIBI V. HAWKINS

could, come up with “‘Think different.’” Id. The PTO has

also not ordered the noble patrons of Burger King to rate its

motto of “‘Have it your way.’” Id. Also, unlike the PTO,

which long “made it clear that [trademark] registration does

not constitute approval of a mark,” id. at 237, the Board has

never disclaimed approval of accredited CMEs. To the

contrary, approved CMEs, like the grant or renewal of a

medical license, has always reflected the Board’s judgment

of “the requisite skills and qualifications necessary to

provide safe and effective services to the public”—

something Dr. Khatibi does not contest. 7 Rich Vision Ctrs.

v. Bd. of Med. Exam’rs, 192 Cal. Rptr. 455, 457 (Ct. App.

1983); Shea v. Bd. of Med. Exam’rs, 146 Cal. Rptr. 653,

659–60 (Ct. App. 1978). History thus squarely weighs in

favor of finding government speech in this case.

7

Dr. Khatibi’s clarifies that her qualm with the implicit bias requirement

is not “the subject matter mandated by the state in its regulatory

capacity.” Rather, it is that she is “being compelled to include irrelevant,

controversial, and unhelpful speech” in the courses she teaches in her

own “personal expressive capacity.” But that puts the cart before the

horse. Such reasoning short-circuits the government speech inquiry and

assumes that CMEs are private speech from the get-go. Indeed, as

counsel for Dr. Khatibi clarified and emphasized at oral argument, the

“thorny issues” of compelled speech and viewpoint discrimination are

actually “not before this court.”

Setting aside that Dr. Khatibi is free to teach whatever she wishes in

her own “expressive capacity,” implicit bias is a “subject matter

mandated by the state in its regulatory capacity.” It is just like cultural

competence or geriatric care topics the Legislature has required and

content mandates with which Dr. Khatibi has admittedly complied. See

§§ 2190.3, 2190.1(c)(1). As the Board explains, Dr. Khatibi’s

disagreement “with the particular subject of implicit bias does not

change the nature of the expression.”

KHATIBI V. HAWKINS 23

B.

“Next, then, we consider whether the public would tend

to view the speech at issue as the government’s.” Shurtleff,

596 U.S. at 255. Unlike history, this factor presents a much

closer call. Dr. Khatibi alleges that “attendees treat her as

the person responsible for the content discussed.” She is the

sole organizer of her CMEs. Attendees often ask her

questions during and after class; they even debate with her.

They evaluate her as well, giving written feedback “about

the effectiveness of the course and whether the course

instructor possessed any bias.” Section 2190.1(e)’s

requirement that instructors provide examples or strategies

relating to implicit bias, as Dr. Khatibi claims, could also

lead attendees to further attribute CME content to her and

not the State.

On the other hand, the Board asserts that the entire CME

scheme exists for licensed medical professionals, not the

public. It is apparent that licensees know that their

profession is heavily regulated since they must comply with

myriad requirements, including various CME mandates, to

maintain their licenses. Dr. Khatibi’s own allegation that

“‘physicians are unlikely to take’ CMEs if they are not

eligible for credit” bolsters this conclusion. All this, in the

Board’s view, means that licensees perceive CMEs’ content

as coming from the State.

Dr. Khatibi counters that “just because individuals

understand that a CME course meets state requirements”

does not mean that they perceive the CME as coming from

the State. To so conclude, she cautions, risks equating

accreditation or a mere “government seal of approval” with

government speech, something deemed insufficient in

Matal. Dr. Khatibi also details how CMEs can meet

24 KHATIBI V. HAWKINS

requirements “so long as an individual course is first

approved by certain private organizations,” and how CMEs

are “largely unsupervised by the government except for the

broad standards and a few mandated inclusions.”

Both sides’ arguments have some merit. Though some

of Dr. Khatibi’s allegations border on conclusory, she has

plausibly alleged facts suggesting that attendees treat her as

the person responsible for CME content. She is also correct

that the State certainly expects, if not relies, on the

participation of private parties in executing the CME

scheme. See, e.g., CCR tit. 16, § 1337.5(a). At the same

time, however, “the fact that private parties take part in the

design and propagation of a message does not extinguish the

governmental nature of the message.” Walker, 276 U.S. at

217; see Johanns, 544 U.S. at 562. And private parties’

involvement alone, contrary to her contention, does not

resolve the government speech inquiry. Otherwise,

Shurtleff’s holistic inquiry would be a futile exercise, not a

vital mode of analysis designed to clarify the very “boundary

between government speech and private expression [that]

can blur.” 596 U.S. at 252. Moreover, “[t]hat Plaintiffs are

evaluated and asked questions by course attendees—like

most educators—and must come up with ‘examples’ and

‘strategies’ related to implicit bias—a pedagogical technique

applicable to virtually any educational topic—does not alter

the reasonable inference that CME curriculum itself, when

approved for credit, is ‘conveying some message on the

government’s behalf.’” Khatibi II, 2024 U.S. Dist. LEXIS

81485, at *18 (citation omitted).

It also does not seem unreasonable to infer that licensees

perceive the content of accredited CMEs as coming from the

State based on Dr. Khatibi’s own allegations. If physicians

are cognizant that their profession is heavily regulated (in

KHATIBI V. HAWKINS 25

light of Dr. Khatibi’s recognition of the multifaceted legal

and regulatory scheme in place); that they attend CMEs,

primarily to secure credits to maintain their licenses (given

Dr. Khatibi’s allegation that licensees will not attend her

courses if they do not comply with state requirements); that

the Board requires licensees to take certain classes with

specific content (like about implicit bias); and only

compliant CMEs get credit (the very concern of

Dr. Khatibi’s lawsuit), then “common sense” commands that

licensees could attribute approved CMEs’ content to

California. See Iqbal, 556 U.S. at 679 (“Determining

whether a complaint states a plausible claim for relief . . .

requires . . . judicial experience and common sense.”).

The Board’s argument that the entire CME scheme was

created for licensees also has considerable force. As we

explained in the historical analysis, California created the

CME scheme “to ensure the continuing competence of

licensed physicians and surgeons.” § 2190. This is far from

an effort to “intentionally open[] a nontraditional forum for

public discourse.” Cornelius, 473 U.S. at 802. It is also a

far cry from Shurtleff, for example, where Boston generously

offered its flagpole “to the public for events” and

“accommodate[d] all applicants seeking to take advantage.”

See 596 U.S. at 249. 8 Nor does the participation of private

8

That only CMEs on qualifying topics and by approved providers can

receive credit is also evidence that they are not a traditional public

forum. See Summum, 555 U.S. at 478 (“The forum doctrine has been

applied in situations in which … government program was capable of

accommodating a large number of public speakers without defeating the

essential function of the … program.”). “The obvious truth of the matter

is that if [CMEs] were considered to be traditional public forums,” then

California would have to accommodate and accredit any CME taught by

26 KHATIBI V. HAWKINS

parties change the analysis. “[P]ermitting limited

discourse,” much like “inaction,” is insufficient to create a

public forum. Cornelius, 473 U.S. at 802.

Considering the above, we conclude that, on balance,

this factor tilts in California’s favor. 9

C.

We next consider “the extent to which the government

has actively shaped or controlled the expression,” which is

fundamental to the government speech inquiry. Shurtleff,

596 U.S. at 252. Alongside history, California’s

extraordinary control over accredited CMEs is the “most

salient feature of this case.” Id. at 256. Contrary to Dr.

Khatibi’s claims, California not only shapes the content of

CMEs, but it also imposes several restrictions on their form

and delivery. In short, it controls accredited CMEs “from

beginning to end.” See Johanns, 544 U.S. at 560–61.

We begin with the State’s multifaceted CME statutory

and regulatory scheme. See Delano Farms Co. v. Cal. Table

Grape Comm’n, 586 F.3d 1219, 1230 (9th Cir. 2009) (“Our

focus in this case . . . is the statutorily-authorized control the

State has . . . and not the actual level of control evidenced in

the record.” (citing Paramount Land Co. Ltd. P’ship v. Cal.

Pistachio Comm’n, 491 F.3d 1003, 1011 (9th Cir. 2007))).

As discussed, section 2190 orders the Board to set and

anyone. Id. at 480. This would deprive California of the ability to select

which courses are necessary to ensure licensees’ competence, effectively

“defeating the essential function of the … program.” Id. at 478.

9

Even assuming that the public perception factor favors Dr. Khatibi, our

ultimate conclusion would remain the same. Consideration of the

remaining factors of history and extent of state control decisively

resolves the holistic government speech inquiry in favor of California.

KHATIBI V. HAWKINS 27

enforce CME requirements on licensees. It also authorizes

the Board to “set content standards for any educational

activity concerning a chronic disease that includes

appropriate information on prevention of the chronic

disease, and on treatment of patients with the chronic

disease, by the application of changes in nutrition and

lifestyle behavior.” Id. Section 2191, meanwhile, orders the

Board to consider a plethora of subjects for accredited

CMEs. These include, for instance, “human sexuality,

defined as the study of a human being as a sexual being and

how they function with respect thereto, and nutrition to be

taken by those licensees whose practices may require

knowledge in those areas;” child and elder abuse; “signs

exhibited by abused women” in health settings; “special care

needs of drug-addicted infants;” and “psychosocial

dynamics of death.” See id. § 2191(a)–(i). Other statutory

provisions order the consideration of additional topics

ranging from HIV prevention, mental health and trauma in

children to chronic diseases, spousal abuse, and COVID-19.

See generally id. §§ 2191.4–2191.6.

Section 2190.1(a), meanwhile, requires that all credit-

eligible CMEs must “(1) have a scientific or clinical content

with a direct bearing on the quality or cost-effective

provision of patient care, community or public health, or

preventive medicine, (2) concern quality assurance or

improvement, risk management, health facility standards, or

the legal aspects of clinical medicine, (3) concern bioethics

or professional ethics, (4) are designed to improve the

physician-patient relationship and quality of physician-

patient communication,” or otherwise “serve to maintain,

develop, or increase the knowledge, skills, and professional

performance that a physician and surgeon uses to provide

care, or to improve the quality of care provided to patients.”

28 KHATIBI V. HAWKINS

See § 2190.1(a) (cleaned up); CCR tit. 16, § 1337.5(a)(3)

(imposing similar content requirements).

All accredited CMEs must also address cultural and

linguistic competence. Section 2190.1(c) meticulously lists

topics that CMEs “shall address at least one or a combination

of:”

(A) Applying linguistic skills to

communicate effectively with the target

population.

(B) Utilizing cultural information to establish

therapeutic relationships.

(C) Eliciting and incorporating pertinent

cultural data in diagnosis and treatment.

(D)(i) Understanding and applying

culturally, ethnically, and sociologically

inclusive data to the process of clinical care,

including, as appropriate, information and

evidence-based cultural competency training

pertinent to the treatment of, and provision of

care to, individuals who identify as lesbian,

gay, bisexual, transgender, queer or

questioning, asexual, intersex, or gender

diverse. This includes processes specific to

those seeking gender-affirming care services.

(D)(ii) An evidence-based cultural

competency training implemented pursuant

to clause (i) may include all of the following:

(I) Information about the effects,

including, but not limited to, ongoing

personal effects of historical and

KHATIBI V. HAWKINS 29

contemporary exclusion and oppression

of transgender, gender diverse, or

intersex (TGI) communities.

(II) Information about communicating

more effectively across gender identities,

including TGI-inclusive terminology,

using people’s correct names and

pronouns, even when they are not

reflected in records or legal documents,

avoiding language, whether verbal or

nonverbal, that demeans, ridicules, or

condemns TGI individuals, and avoiding

making assumptions about gender

identity by using gender-neutral language

and avoiding language that presumes all

individuals are heterosexual, cisgender,

or gender conforming, or nonintersex.

(III) Discussion on health inequities

within the TGI community, including

family and community acceptance.

(IV) Perspectives of diverse, local

constituency groups and TGI-serving

organizations including, but not limited

to, the California Transgender Advisory

Council.

(V) Recognition of the difference

between personal values and professional

responsibilities with regard to serving

TGI people.

30 KHATIBI V. HAWKINS

(VI) Recommendations on administrative

changes to make health care facilities

more inclusive.

The Legislature has also designated geriatric care as a

mandatory CME topic for specific licensees. § 2190.3. So,

too, are CMEs for pain management, treatment of terminally

ill patients, and drug dependency. Id. § 2190.5; see also id.

§ 2190.6 (providing alternative means of fulfilling

§ 2190.5’s requirements). Conversely, the statutory scheme

delineates which CMEs are exempt from requirements or

accreditation. See, e.g., id. § 2190.1(b)(2) (excluding CMEs

“dedicated solely to research or other issues that does not

include a direct patient care” and CMEs by out-of-state

providers from cultural and linguistic competency

requirements).

All these content-related requirements are in addition to

the myriad other mandates imposed by the regulations.

Section 1337.5(a)(1) of title 16 of the regulations require

CME instructors to possess specific qualifications, such as

“a faculty appointment . . . directly related to the practice of

medicine” in an approved institution. The regulations

dictate, too, that the “need for the course and how the need

was determined shall be clearly stated and maintained on

file;” that the content of the course address a list of specified

topics; that each program “shall clearly state educational

objectives that can be realistically accomplished within the

framework of the course;” that the “teaching methods” be

“described;” that each course shall include an evaluation;

and that course organizers “maintain a record of attendance

of each participant.” CCR tit. 16, § 1337.5(a)(2)–(5).

The regulations also provide that the “following

programs are approved by the division for continuing

KHATIBI V. HAWKINS 31

education credit: (1) Programs which qualify for Category I

credit from the California Medical Association or the

American Medical Association; (2) Programs which qualify

for prescribed credit from the American Academy of Family

Physicians; (3) Programs offered by other organizations and

institutions acceptable to the division.” CCR tit. 16,

§ 1337(a). “Only those courses and other educational

activities that meet the requirements of Section 2190.1 of the

code which are offered by these organizations shall be

acceptable for credit under this section.” Id. § 1337(b); id.

§ 1337(c)–(f) (detailing other limitations related to CMEs

provided by these private organizations).

Additionally, the Board exercises final approval

authority over the entire CME scheme. The Board “shall

audit during each year a random sample of physicians who

have reported compliance with the continuing education

requirement.” CCR tit. 16, § 1338(a); id. § 1338(b)–(e)

(detailing related auditing, recordkeeping, and disciplinary

processes). “When reviewing a physician’s documentation

for completed continuing education,” as Dr. Khatibi notes,

“the Medical Board will randomly audit CME courses to

determine whether the course is approved for credit.”

“[A]ny course deemed unacceptable by” the Board receives

no credit. Id. § 1337.5(c). The Board “in its discretion” may

also waive the CME requirements for various reasons,

including undue hardship. Id. § 1339(a).

What we have catalogued—perhaps painstakingly—

reveals that California has not only provided a “general

description” of CMEs but also “detail[ed] the themes to be

emphasized, the actors to be used, the demographics to be

targeted, and the media to be employed.” Paramount Land,

491 F.3d at 1011 (finding government speech). It has also

provided the starting and endpoint for any CME provider.

32 KHATIBI V. HAWKINS

The State dictates who may teach the courses. CCR tit. 16,

§ 1337.5(a)(1); id. § 1337(a). It tells those qualified

instructors to record their courses’ purpose and teaching

methodology as well as ensure that their courses address

specific topics. Id. §§ 1337.5(a)(2)–(4). It also sets

guidelines related to attendance and evaluation. Id.

§§ 1337.5(a)(4)–(6). The Board may then audit, accredit, or

reject the CME; it may also waive licensees’ compliance

obligations. Id. §§ 1337.5–1339. California therefore

controls accredited CMEs “from beginning to end.” 10 See

Johanns, 544 U.S. at 560–61.

Dr. Khatibi resists this conclusion, but none of her

arguments is persuasive. She first disputes California’s

control over the content of CMEs, emphasizing the role of

private parties in the scheme. She also argues that unlike in

Summum, where the city exercised “editorial control” of the

monuments’ messages, 555 U.S. at 472, and Walker, where

Texas had “sole control” over license plates, 576 U.S. at 213,

the Board’s role of accreditation is one of “mere approval.”

But as the Supreme Court explained, California’s

reliance on private organizations “does not extinguish the

governmental nature of the message.” See Walker, 276 U.S.

at 202 (citing Summum, 555 U.S. at 470–471). California is

10

Just as not all states share California’s longstanding history with CME

regulation, see supra note 5, many also do not appear to exercise a

comparable level of control over CMEs. Compare California’s § 2190–

2190.6; id. §§ 2191–2191.6; id. §§ 2196–2196.9; CCR tit. 16, §§ 1336–

1339.5, with MD. CODE ANN., HEALTH OCC. § 15-307 (imposing no

comparable specific content requirements); MD. CODE REGS.

§ 10.32.01.10 (2025) (same); IND. CODE ANN. § 25-22.5-3-1 (2025)

(imposing no CME requirements on physician-licensees); MONT. CODE

ANN. § 37-1-141 (2023) (same); S.D. CODIFIED LAWS § 36-4-24.1

(2025) (same).

KHATIBI V. HAWKINS 33

free to “le[ave] the development of the remaining details to

an entity . . . answerable to the” Board, which is precisely

what it has done. See Johanns, 544 U.S at 561. The State

has outlined the topics that CMEs must cover. See, e.g.,

§ 2190.1. It has set who may and how to teach them. See,

e.g., CCR tit. 16, § 1337.5. It has also designated specific

private organizations to deliver accredited CMEs, provided

that the courses meet specific criteria. See, e.g., id. § 1337.

And the Board may ultimately audit and reject any CME as

unacceptable. See id. § 1337.5(c). As in Johanns, this is

sufficient, “effective[] control[].” 544 U.S at 560.

Relatedly, Dr. Khatibi’s role as the “sole organizer” of a

course does not mean that the State has exercised no control

over content. To the contrary, Dr. Khatibi admits that her

courses have complied with all CME requirements apart

from the implicit bias one at issue in this case. Compliance

presupposes a rule; without rules, there can be no

compliance. Put another way, Dr. Khatibi has conceded that

her CMEs have been shaped by California. They have

aligned with the “overarching message” set by the State,

even as California has “left the development of the

remaining details” to her and other private parties. See

Johanns, 544 U.S. at 561. Combined with the Board’s

auditing and ultimate approval authority, this is editorial

control. See id. at 560–62.

For this reason, it is also of no moment that the Board

normally accredits CMEs without an audit, see CCR tit. 16,

§ 1337.5(b), or that it has not yet chosen to audit Dr.

Khatibi’s courses. No one disputes that the Board may audit

any course and deem it ineligible for credit. This, combined

with the State’s requirement that any accredited CME

(which must be provided by specified, qualified providers)

relate to at least a few, if broad, topics, see, e.g., § 2190.1(a),

34 KHATIBI V. HAWKINS

means that California shapes or controls CMEs “from

beginning to end.” See Johanns, 544 U.S. at 560–61 (finding

sufficient governmental control where content was

“specified, in general terms” by Congress and where

Secretary had “final approval authority” (emphasis added)).

Neither would California’s “passivity” have precluded a

finding of government speech here, in light of the relevant

expansive history and statutory and regulatory regime. In

Paramount Land, we applied Johanns and found

government speech even where California “ha[d] not

rejected or edited proposals, or taken a particularly active

role.” See 491 F.3d at 1011–12. What is “dispositive” is

“the government’s ability to control speech, even when it

declined to do so.” See Ranchers Cattlemen Action Legal

Fund United Stockgrowers of Am. v. Vilsack, 6 F.4th 983,

990 (9th Cir. 2021) (emphasis in original) (citing Paramount

Land, 491 F.3d at 1011–12).

Dr. Khatibi’s remaining arguments fare no better. Her

claim that the sheer volume of accredited CMEs dilutes

California’s control over them collapses under Walker’s

wisdom. Walker made clear that the “desire to communicate

numerous messages does not mean that the messages

conveyed are not” the government’s. 576 U.S. at 217; see

also id. at 221–22 (Alito, J., dissenting) (noting that there are

over 350 varieties of specialty plates). It is the state’s right,

Walker stressed, to convey “many more messages” if it

wished. Id. at 217. Citing Summum, the Court declared that

the government speech analysis was “not dependent on the

precise number of” expression or messages at issue. Id.

(citing 555 U.S. at 471–72).

Shurtleff reaffirmed this reasoning. There, the court

clarified that it did “not settle [the] dispute by counting

KHATIBI V. HAWKINS 35

noses—or, rather, counting flags. That is so for several

reasons,” including the more salient importance of focusing

on Boston’s policies, which were unwritten, and whether

Boston “wished to speak for itself by raising flags.” See 596

U.S. at 256–57. The fact that there may be numerous

accredited CMEs, therefore, “does not mean that the

messages conveyed are not [the government]’s own.”

Walker, 576 U.S. at 217.

More to the point, Dr. Khatibi makes no allegation of

noncompliance. She does not allege that any accredited

CME has somehow deviated from the Board’s “overarching

message,” see Johanns, 544 U.S. at 561, of what is necessary

to “ensure the continuing competence of licensed physicians

and surgeons,” see § 2190. In fact, all the sample CMEs Dr.

Khatibi references align with state-mandated topics. 11 She

accordingly fails to show that California has been “babbling

prodigiously and incoherently” or “expressing contradictory

views” through accredited CMEs—something that could

have counseled toward finding private speech. See Matal,

582 U.S. at 235–36.

11

Compare Opening Brief (“OB”) 32 (“efficacy of endoscopic

endonasal surgical navigation”), with § 2190.1(a)(2) (CMEs must

“concern quality assurance or improvement … of clinical medicine”);

OB 32 (“sexual orientation and gender identity in cardiovascular care”),

with § 2191 (ordering the Board to consider “human sexuality” in

licensees’ practices) and § 2190.1(c) (listing cultural competency

requirements touching on sexuality and gender); OB 26 (providing

allegedly private speech example of CME called “Association Between

the Relaxation of Public Health and Social Measures and Transmission

of the SARS-CoV-2 Omicron Variant in South Korea”), with

§ 2190.1(a)(1) (CMEs must “have a scientific or clinical content with a

direct bearing on the quality … of patient care, community or public

health).

36 KHATIBI V. HAWKINS

Second, Dr. Khatibi’s comparisons of the Board to the

governmental bodies in Matal, Shurtleff, Summum, and

Walker are unpersuasive. The Board exercises far more

control than the PTO in Matal. Indeed, the Board designates

specific private organizations or qualified faculty to teach

accredited CMEs. See CCR tit. 16, §§ 1337(a), 1337.5(a).

These instructors’ courses must at least adhere to the—in Dr.

Khatibi’s words—“broad parameters” set by California to be

accredited. See, e.g., § 2190.1. By contrast, the PTO

imposes no similar requirements. Any natural or juristic

person may create a mark, and they are able to do so from an

entirely blank canvas. 15 U.S.C. § 1127. The PTO also

“does not dream up” content standards, Matal, 582 U.S. at

235, whereas California has long done so, mandating that

CMEs address topics like the “legal aspects of clinical

medicine” and “health inequities within the TGI community,

including family and community acceptance.”. See, e.g.,

§§ 2190.1(a)(2), (c)(1)(D)(ii)(III)

The PTO normally “does not inquire whether any

viewpoint conveyed by a mark is consistent with

Government policy,” and it lacks authority to remove the

mark absent very specific and limited circumstances. Matal,

582 U.S. at 235. In contrast, the Board may audit and revoke

the accreditation of any CME that fails to comply with its

“acceptability” criteria, including content requirements. See

§ 1337.5(c). Also unlike the PTO, which “has made it clear

that registration does not constitute approval of a mark,”

Matal, 582 U.S. at 237, the Board’s accreditation reflects its

judgment that a CME’s content is essential to “ensure the

continuing competence” of licensees. § 2190.

California’s oversight over CMEs dwarfs the nominal

supervision by the cities in Shurtleff and Summum, too. In

Shurtleff, Boston “hadn’t spent a lot of time really thinking

KHATIBI V. HAWKINS 37

about” the flags it permitted to fly and “had nothing—no

written policies or clear internal guidance.” 596 U.S. at 257

(cleaned up). Similarly, in Summum, Pleasant Grove lacked

a written policy on monuments until a year after the plaintiffs

donated the monument at issue. 555 U.S. at 465. And even

then, the city’s eventual policy seemed limited in nature. Id.

(detailing the policy’s focus on historical ties to the

community). California’s CME regime, in contrast, has long

been embedded in and enforced through a complex web of

statute and regulation. See, e.g., § 2190.1; CCR tit. 16,

§ 1337.5. It is also significant that both the monument in

Summum and the flag in Shurtleff were entirely privately

designed, with no government input whatsoever. The

content of accredited CMEs, as we have detailed, is shaped

by the State from their inception.

Walker also undercuts, rather than reinforces, Dr.

Khatibi’s claims. It is true that Walker emphasized how

Texas had “sole control over the design, typeface color, and

alphanumeric pattern for all license plates.” 576 U.S. at 213.

But the Court also highlighted that its analysis—like ours—

was holistic. See id. at 210–13. The Board’s lack of the

same granular control over every element of accredited

CMEs is thus inconsequential. The Board need not

micromanage the drawing board or the classroom for

accredited CMEs to count as government speech. Much like

Texas, the Board, for decades, has “‘effectively controlled,’”

them “by exercising ‘final approval authority,’” id. at 213,

and by dictating content standards, pedagogical frameworks,

and instructor qualifications. See, e.g., § 2190.1; CCR tit.

16, § 1337.5. To otherwise hold “risks micro-managing

legislative and regulatory schemes, a task federal courts are

ill-equipped to undertake.” See Paramount Land, 491 F.3d

at 1012.

38 KHATIBI V. HAWKINS

* * *

We hold that CMEs eligible for credit under California

law constitute government speech. See Shurtleff, 596 U.S.

at 248. And because they constitute government speech,

CMEs eligible for credit are therefore immune from the

strictures of the Free Speech Clause. See Summum, 555 U.S.

at 464. 12

“If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can

prescribe what shall be orthodox….” W. Va. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 642 (1943). This star yet

shines. Just as California cannot compel Plaintiffs to teach

subjects against their beliefs in their private capacities,

Plaintiffs cannot compel California to speak against its own

in its official capacity as guardian against “quacks and

pretenders and from the mistakes of incapable practitioners.”

Gerino, 77 P. at 167.

AFFIRMED.

12

Accordingly, we need not reach Plaintiffs’ unconstitutional conditions

claim. See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570

U.S. 205, 214 (2013) (“[T]he Government may not deny a benefit to a

person on a basis that infringes his constitutionally protected freedom of

speech even if he has no entitlement to that benefit.” (cleaned up)); see

also Matal, 582 U.S. at 239–40 (suggesting that the doctrine only applies

to “cash subsidies or their equivalent”).