Stockton v. Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN STOCKTON; RICHARD No. 24-3777

EGGLESTON, MD; THOMAS T.

D.C. No.

SILER, MD; DANIEL MOYNIHAN,

2:24-cv-00071-

MD; CHILDREN’S HEALTH

TOR

DEFENSE, not-for-profit

corporation; JOHN AND JANE

DOES, MDs 1-50,

OPINION

Plaintiffs - Appellants,

v.

NICK BROWN,* Attorney General

of the State of Washington; KYLE S.

KARINEN, Executive Director of the

Washington Medical Commission,

Defendants - Appellees.

Appeal from the United States District Court

for the Eastern District of Washington

Thomas O. Rice, District Judge, Presiding

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Nick Brown

is automatically substituted for his predecessor, Robert Ferguson, as the

Attorney General of the State of Washington. We accordingly grant the

Appellants’ motion to substitute (Dkt. 45).

2 STOCKTON V. BROWN

Argued and Submitted May 14, 2025

San Francisco, California

Filed September 17, 2025

Before: SIDNEY R. THOMAS, MILAN D. SMITH, JR.,

and DANIEL A. BRESS, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;

Partial Concurrence by Judge Bress

SUMMARY**

Younger Abstention/Ripeness

The panel affirmed the district court’s dismissal of an

action against the Attorney General of Washington and the

Executive Director of the Washington Medical Commission

challenging the Commission’s practice of disciplining

physicians for spreading COVID-19 “misinformation.”

Plaintiffs include physicians who have been charged

with unprofessional conduct, physicians who have not been

charged, and other advocates. Plaintiffs brought four claims

seeking declaratory judgments that: (1) future investigations,

prosecutions, and sanctioning of physicians for speaking out

about COVID-19 violate the First Amendment; (2) current

investigations, prosecutions, and sanctioning of physicians,

**

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

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

STOCKTON V. BROWN 3

including Drs. Eggleston and Siler, violate the First

Amendment; (3) two provisions of Washington’s Uniform

Disciplinary Act are facially unconstitutional, overbroad

and/or vague; and (4) the Commission proceedings violated

plaintiffs’ due process rights.

The panel held that Younger abstention barred Claims 2,

3, and 4 because they raise challenges to ongoing state civil

proceedings, the medical disciplinary proceedings at issue

qualify as quasi-criminal state enforcement proceedings

within the meaning of Younger, the proceedings implicate

important state interests, and the disciplinary process

contains an avenue for judicial review of federal claims.

Younger abstention also barred Claim 1 as to Dr. Eggleston

and Dr. Siler, who are subjects of ongoing state disciplinary

proceedings.

The panel held that Younger abstention did not foreclose

Claim 1 as to Dr. Moynihan, John Stockton, and Children’s

Health Defense (CHD) because Younger is inapplicable to

claims seeking prospective relief. Nevertheless, Claim 1

was constitutionally unripe because no injury has yet been

suffered. Claim 1 also was prudentially unripe because it

involved hypothetical future prosecutions against unnamed

and unknown doctors and required further factual

development.

Concurring in part and concurring in the judgment,

Judge Bress ultimately agreed with the majority that

plaintiffs’ claims cannot move forward, but he disagreed in

some respects with the majority’s reasoning and set forth a

separate analysis.

4 STOCKTON V. BROWN

COUNSEL

Richard Jaffe (argued), Sacramento, California; Todd S.

Richardson, Law Offices of Todd S. Richardson PLLC,

Clarkson, Washington; Robert F. Kennedy Jr., Hurley, New

York; for Plaintiffs-Appellants.

Andrew R.W. Hughes (argued), Jonathan J. Guss, and Sarah

E. Smith-Levy, Assistant Attorneys General; Robert W.

Ferguson, Attorney General; Office of the Washington

Attorney General, Seattle, Washington; for Defendants-

Appellees.

OPINION

M. SMITH, Circuit Judge:

After the outbreak of the COVID-19 pandemic, the

Washington Medical Commission investigated and brought

professional disciplinary charges against physicians who

had spread COVID-19 “misinformation.” This included

physicians who authored editorials on controversial issues

related to COVID-19, including the efficacy of vaccines and

alternative treatments. The plaintiffs in this case—

physicians who have been charged with unprofessional

conduct, physicians who have not been charged, and other

advocates (collectively, the Plaintiffs)—brought free-speech

and due-process challenges against this practice and raised

related facial challenges to Washington law. The district

court dismissed all the Plaintiffs’ claims.

We affirm. We appreciate that the Plaintiffs vigorously

disagree with the Washington Medical Commission’s

STOCKTON V. BROWN 5

practices and actions. For several reasons, though, we

cannot reach the merits of the Plaintiffs’ constitutional

challenges. The district court properly dismissed all the

Plaintiffs’ claims.

BACKGROUND

I. Factual Background

In July 2021, the Board of Directors of the Federation of

State Medical Boards—a non-profit organization purporting

to represent state medical boards throughout the United

States—issued a statement in response to what it perceived

as “a dramatic increase in the dissemination of COVID-19

vaccine misinformation and disinformation by physicians

and other health care professionals on social media

platforms, online and in the media[.]” According to the

statement, “[p]hysicians who generate and spread COVID-

19 vaccine misinformation or disinformation” were “risking

disciplinary action by state medical boards” because

spreading inaccurate information about the COVID-19

vaccine contradicts physicians’ responsibilities to practice

medicine in the best interest of their patients and to rely on

scientifically grounded public health information. The

statement also expressed concern that spreading inaccurate

information about COVID-19 vaccines “threatens to further

erode public trust in the medical profession and puts all

patients at risk.”

Afterwards, the Washington Medical Commission (the

Commission) voted to adopt a similar guidance policy

suggesting that the Commission would discipline physicians

licensed in Washington who spread COVID-19

misinformation. The policy stated that the Commission

supported the Federation of State Medical Boards’s

misinformation position—and that it would apply those

6 STOCKTON V. BROWN

principles more broadly, extending beyond vaccines to “all

misinformation regarding COVID-19 treatments and

preventive measures such as masking.” The Commission

emphasized that COVID-19 prevention and treatment

should be treated like any other disease response and, as

such, “[t]reatments and recommendations regarding

[COVID-19] that fall below [the] standard of care as

established by medical experts, federal authorities and

legitimate medical research are potentially subject to

disciplinary action,” and it encouraged the public and

physicians to file complaints if they knew of instances in

which the standard of care had been breached. The

Commission stated that, in determining the standard of care,

it relied on the FDA’s approved list of medications to treat

COVID-19, which did not include ivermectin or

hydroxychloroquine.

According to the Plaintiffs, since the issuance of that

policy, the Commission has investigated, prosecuted, and/or

sanctioned as many as sixty physicians for communications

related to COVID-19 under Washington’s Uniform

Disciplinary Act. See Wash. Rev. Code § 18.130.180.

One such physician is Dr. Richard Eggleston, a retired

ophthalmologist and one of the Plaintiffs in this case. Since

January 2021, Dr. Eggleston has been an opinion writer for

the Lewiston Tribune, a newspaper in the Pacific Northwest.

Dr. Eggleston often writes from what he deems to be a

“conservative-oriented” perspective about high-profile

issues—especially topics related to the COVID-19

pandemic. For example, Dr. Eggleston published an

editorial entitled “When it comes to COVID-19, dare to be a

free thinker” expounding on his views of the dangers of the

COVID-19 vaccine and his belief that ivermectin would

STOCKTON V. BROWN 7

soon be the standard of care for preventing and treating

COVID-19.

In late 2021, the Commission began an investigation into

Dr. Eggleston based on his articles. The Commission

eventually charged him with professional misconduct based

on his writings, contending that he had committed

unprofessional conduct within the meaning of the

Washington Uniform Disciplinary Act, namely an act of

“moral turpitude, dishonesty, or corruption relating to the

practice of [his] profession,” as well as “[m]isrepresentation

or fraud in any aspect of the conduct of the . . . profession.”

See Wash. Rev. Code § 18.130.180(1), (13). The

prosecution of Dr. Eggleston remains ongoing. Dr.

Eggleston contends that the investigation and prosecution

has chilled his willingness to speak out about COVID-19

issues, in part because it motivated him to only write

rebuttals to other editorials about COVID-19 rather than

authoring his own opinions.

The Commission also took action against another

plaintiff, Dr. Thomas T. Siler. Dr. Siler is a retired physician

who wrote a series of posts for AmericanThinker.com about

COVID-19, the safety and efficacy of the mRNA vaccine for

the disease, and the CDC’s recommendations. Based on

these posts, he was investigated and charged with

professional misconduct in the same manner as Dr.

Eggleston. According to a declaration, after the

investigation began, Dr. Siler wrote only one more article

because he was not sure what the outcome of the

investigation would be.1

1 In our recitation of the facts and our analysis, we rely on information

contained in articles and declarations attached to the parties’

8 STOCKTON V. BROWN

A third physician, Dr. Daniel Moynihan, is also one of

the Plaintiffs here. Dr. Moynihan is a retired family

medicine physician who volunteers for Children’s Health

Defense (CHD). Although he has not been prosecuted by

the Commission, Dr. Moynihan states that his willingness to

publicly speak out about COVID-19 issues has been chilled

by the Commission’s investigations and prosecutions. A

Commission representative explained that it had received a

complaint that Dr. Moynihan had been disseminating

misinformation about COVID-19 vaccines but that it had

investigated the complaint and closed it without taking

action.

This case also involves three plaintiffs who are not

physicians: (1) CHD, a non-profit corporation whose

mission is to advocate for child medical welfare and medical

freedom; (2) John Stockton, a former NBA player for the

Utah Jazz, who considers himself “a vocal advocate against

the mainstream Covid narrative” and hosts a podcast that

deals with issues such as the COVID-19 pandemic and

medical freedom; and (3) John and Jane Does (the Doe

Doctors), unknown doctors who are the subject of

Commission investigations and prosecutions for speaking

out on COVID-19 issues.

preliminary-injunction filings. Although we ordinarily refrain from

looking at evidence extrinsic to the complaint when ruling on a motion

to dismiss, we may do so when ruling on a jurisdictional challenge, as

here. See Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1141

n.5 (9th Cir. 2003). Additionally, both parties rely on material outside

their complaint; indeed, the Defendants suggest that this material has

been incorporated into the pleadings.

STOCKTON V. BROWN 9

II. Procedural History

The Plaintiffs filed the operative First Amended

Complaint on April 9, 2024. The First Amended Complaint

named as Defendants the Attorney General of Washington

and the Executive Director of the Commission, in their

official capacities.

The First Amended Complaint challenged the

Commission’s investigation and prosecution of Dr.

Eggleston and Dr. Siler, as well as the Commission’s overall

practice of disciplining physicians for COVID-19

misinformation. The Plaintiffs requested (1) a declaratory

judgment that future investigations, prosecutions, and

sanctioning of physicians for speaking out about COVID-19

violates the First Amendment (Claim I); (2) a declaratory

judgment that current investigations, prosecutions, and

sanctioning of physicians, including Dr. Eggleston and Dr.

Siler, for speaking out about COVID-19 violates the First

Amendment (Claim II); (3) a declaratory judgment that two

provisions of the Washington Uniform Disciplinary Act,

Wash. Rev. Code § 18.130.180(1) and (13), are facially

unconstitutional, overbroad, and/or vague (Claim III); and

(4) a declaratory judgment that the Commission proceedings

violated the Plaintiffs’ due process rights (Claim IV). The

Plaintiffs sought injunctive relief on all four claims.

The district court dismissed the First Amended

Complaint on the Defendant’s motion. The district court

granted the motion to dismiss because (1) the Plaintiffs’

claims were constitutionally unripe; (2) the Plaintiffs’ claims

were prudentially unripe; and (3) the district court was

required under Younger v. Harris, 401 U.S. 37 (1971), to

abstain from exercising jurisdiction because the Plaintiffs’

claims challenged ongoing state disciplinary proceedings.

10 STOCKTON V. BROWN

The district court further ruled, on the merits, that (1) the

Plaintiffs failed to state an as-applied First Amendment

claim; (2) even if the Plaintiffs’ claim was plausible, the

State could regulate the physicians’ professional misconduct

without regulating speech; and (3) the Plaintiffs’ due process

challenges failed.2

The Plaintiffs timely appeal. See Fed. R. App. P.

4(a)(1)(A).

JURISDICTION AND STANDARD OF REVIEW

We have appellate jurisdiction pursuant to 28 U.S.C.

§ 1291. We review abstention, standing, and ripeness issues

de novo. See 50 Exch. Terrace LLC v. Mount Vernon

Specialty Ins. Co., 129 F.4th 1186, 1187 (9th Cir. 2025)

(ripeness and standing); Betschart v. Oregon, 103 F.4th 607,

616 (9th Cir. 2024) (abstention).

ANALYSIS

The district court dismissed the Plaintiffs’ claims on

abstention and ripeness grounds, as well as on the merits.

We begin—and end—our analysis on the first two grounds.

Because we conclude that all of the Plaintiffs’ claims are

barred based on the doctrines of abstention and ripeness, we

lack jurisdiction to address the merits of the Plaintiffs’

constitutional challenges. In the course of our de novo

review, we will address abstention and ripeness on a claim-

by-claim basis. See Murthy v. Missouri, 603 U.S. 43, 61

(2024) (“‘[S]tanding is not dispensed in gross.’ That is,

‘plaintiffs must demonstrate standing for each claim that

2 The district court also concluded that the Plaintiffs were not entitled to

amend their pleadings for a second time. The Plaintiffs raise no

challenge to this aspect of the district court’s ruling, so we will not

discuss it further.

STOCKTON V. BROWN 11

they press’ against each defendant, ‘and for each form of

relief that they seek.’” (citation omitted) (quoting

TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021)));

Pizzuto v. Tewalt, 997 F.3d 893, 903 (9th Cir. 2021)

(applying “principles of ripeness . . . to each of the plaintiffs’

specific claims”); Herrera v. City of Palmdale, 918 F.3d

1037, 1048–49 (9th Cir. 2019) (considering Younger

abstention on a claim-by-claim basis).

I. Abstention

We begin with abstention.3 The district court concluded

that the doctrine of Younger abstention required it to abstain

from considering any of the Plaintiffs’ claims. We agree in

part—Claims II, III, and IV are indeed barred. So is Claim

I as asserted by Dr. Eggleston and Dr. Siler. But abstention

is inapplicable as to Claim I as asserted by Dr. Moynihan,

Stockton, and CHD.

A. Principles of Younger Abstention

“Federal courts have a presumptive, or what is

sometimes said to be ‘virtually unflagging,’ obligation to

decide cases within their jurisdiction.” Yelp Inc. v. Paxton,

137 F.4th 944, 950 (9th Cir. 2025) (quoting Sprint

Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013)).

“Younger abstention is an exception to that rule, reflecting a

3 The parties and the district court discussed ripeness before reaching

Younger abstention. However, we have discretion to begin with the

Younger abstention issue. See Sinochem Int’l Co. Ltd. v. Malaysia Int’l

Shipping Corp., 549 U.S. 422, 431 (2007) (“Nor must a federal court

decide whether the parties present an Article III case or controversy

before abstaining under Younger[.]”); Ruhrgas AG v. Marathon Oil Co.,

526 U.S. 574, 585 (1999) (“[C]ourts do not overstep Article III limits

when they . . . abstain under Younger . . . without deciding whether the

parties present a case or controversy.” (citations omitted)).

12 STOCKTON V. BROWN

‘national policy forbidding federal courts to stay or enjoin

pending state court proceedings except under special

circumstances.’” Id. (quoting Younger, 401 U.S. at 41).

“This doctrine is based on ‘a strong federal policy against

federal-court interference with pending state judicial

proceedings,’ and on the recognition that ‘[c]ourts have long

had discretion not to exercise equity jurisdiction when

alternatives are available.’” Id. (alteration in original) (first

quoting Middlesex Cnty. Ethics Comm. v. Garden State Bar

Ass’n, 457 U.S. 423, 431 (1982); then quoting Gilbertson v.

Albright, 381 F.3d 965, 970 (9th Cir. 2004) (en banc)). The

doctrine is “[r]ooted in overlapping principles of equity,

comity, and federalism.” Roshan v. McCauley, 130 F.4th

780, 782 (9th Cir. 2025) (quoting Arevalo v. Hennessy, 882

F.3d 763, 765 (9th Cir. 2018)).

Although Younger itself involved criminal proceedings,

the abstention doctrine has since “been extended to prevent

federal court injunctions of certain ongoing state civil

proceedings.” Yelp, 137 F.4th at 950; see also Bristol-Myers

Squibb Co. v. Connors, 979 F.3d 732, 735 (9th Cir. 2020)

(observing that a “concern for comity and federalism” led

the Supreme Court to “expand the protection of Younger

beyond state criminal prosecutions, to civil enforcement

proceedings” (quoting New Orleans Pub. Serv., Inc. v.

Council of New Orleans, 491 U.S. 350, 367–68 (1989))).

“For civil cases, ‘Younger abstention is appropriate only

when the state proceedings: (1) are ongoing, (2) are quasi-

criminal enforcement actions or involve a state’s interest in

enforcing the orders and judgments of its courts,

(3) implicate an important state interest, and (4) allow

litigants to raise federal challenges.’” Yelp, 137 F.4th at 950

(quoting ReadyLink Healthcare, Inc. v. State Comp. Ins.

Fund, 754 F.3d 754, 759 (9th Cir. 2014)). “If these

STOCKTON V. BROWN 13

requirements are met, ‘we then consider whether the federal

action would have the practical effect of enjoining the state

proceedings and whether an exception to Younger applies.’”

Id. (quoting ReadyLink Healthcare, 754 F.3d at 759).

B. Application

Reviewing the issues de novo, we conclude that

abstention under Younger is required for Claims II, III, and

IV, which relate to ongoing investigations and prosecutions

of physicians. But, at least with respect to some of the

Plaintiffs, abstention is inappropriate as to Claim I, which

seeks to enjoin future investigations and prosecutions.4

1. Claims II, III, and IV

We turn first to whether Younger abstention was proper

with respect to the claims that challenge the ongoing

investigation and prosecution of Dr. Eggleston, Dr. Siler,

and the Doe Doctors (Claims II, III, and IV). See supra n.4.

For the reasons given below, abstention is proper, so we

cannot reach the merits of these claims.

4 In dividing Claim I from Claims II, III, and IV for purposes of the

Younger analysis, we follow the Plaintiffs’ own framing. The Plaintiffs

cast Claim I as focusing on future investigations and thus falling outside

the ambit of Younger abstention. However, they do not raise that

argument as to Claims II, III, and IV, instead relying on other arguments

as to why Younger abstention does not apply to those claims. That

delineation makes sense in light of the First Amended Complaint. Claim

II clearly relates to “current” ongoing investigations. And although it is

less clear from the face of the First Amended Complaint whether Claims

III and IV seek relief from current enforcement proceedings or are

wholly prospective, we will follow the Plaintiffs’ framing and treat only

Claim I as prospective.

14 STOCKTON V. BROWN

a. Elements for Younger Abstention

As indicated above, Younger abstention is appropriate in

cases involving state civil proceedings if (1) the state civil

proceedings are ongoing; (2) the state civil proceedings are,

inter alia, quasi-criminal enforcement actions; (3) the

proceedings implicate an important state interest; and (4) the

litigants have an opportunity to raise federal challenges to

the state proceedings. See Yelp, 137 F.4th at 950. All of

these elements are present here.

First, this case clearly involves ongoing state civil

proceedings—the disciplinary proceedings against Dr. Siler,

Dr. Eggleston, and the Doe Doctors. The Plaintiffs concede

as much, describing the proceedings as “ongoing” and

insisting that Dr. Eggleston and Dr. Siler are “actively

defending against” disciplinary charges. Likewise, the First

Amended Complaint expressly challenges “current”

investigations and prosecutions.

Second, the medical disciplinary proceedings at issue

qualify as quasi-criminal state enforcement proceedings

within the meaning of Younger. See Middlesex Cnty. Ethics

Comm., 457 U.S. at 433–35 (concluding that Younger

abstention was appropriate in bar disciplinary proceedings);

Roshan, 130 F.4th at 783 (concluding that a disciplinary

procedure that could result in revocation of a real estate

license was a quasi-criminal proceeding); Alsager v. Bd. of

Osteopathic Med. & Surgery, 573 F. App’x 619, 620 (9th

Cir. 2014) (abstaining under Younger from hearing a

challenge to disciplinary proceedings conducted by

Washington’s Board of Osteopathic Medicine and

STOCKTON V. BROWN 15

Surgery); 5 accord Amanatullah v. Colo. Bd. of Med.

Exam’rs, 187 F.3d 1160, 1163–65 (10th Cir. 1999)

(abstaining under Younger from reviewing administrative

proceedings conducted by the Colorado Board of Medical

Examiners). The Plaintiffs raise no argument to the

contrary.

Third, the proceedings also implicate important state

interests—namely, the State of Washington’s interest in

regulating the practice of medicine to ensure that patients

receive quality health care. See Buckwalter v. Nev. Bd. of

Med. Exam’rs, 678 F.3d 737, 747 (9th Cir. 2012) (“It is self-

evident that the Board’s disciplinary proceedings implicate

the important state interest of ensuring quality health care.”);

see also Alsager, 573 F. App’x at 620; accord Amanatullah,

187 F.3d at 1164–65 (“[T]here is no question that the

licensing and discipline of physicians involves important

state interests . . . .”).

The Plaintiffs suggest that the State lacks a legitimate (let

alone an important) interest in regulating speech. But the

Plaintiffs did not argue to the district court that this element

was not met, so they have forfeited any challenge on this

point. See Lui v. DeJoy, 129 F.4th 770, 780 (9th Cir. 2025).

In any event, the Plaintiffs’ argument is unavailing; such a

cribbed view of the interest at issue would necessarily

foreclose Younger abstention in all cases involving an

alleged deprivation of free-speech rights. Additionally,

“[t]he importance of the interest is measured by considering

its significance broadly, rather than by focusing on the

state’s interest in the resolution of an individual case.”

Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 618 (9th Cir.

5 Although it is not binding, the panel’s decision in Alsager is persuasive

and well-reasoned, so we rely on it here.

16 STOCKTON V. BROWN

2003). Thus, the inquiry is not whether the state has an

interest in these specific disciplinary decisions but whether

it has a legitimate interest in medical disciplinary

proceedings generally. See id.; see also Bristol-Myers

Squibb, 979 F.3d at 738 (looking to “the general class of

cases of which this state proceeding is a member” to

determine whether there is a legitimate interest). It clearly

does.

Fourth, the disciplinary process contains an avenue for

judicial review of federal claims—that is, physicians who

are disciplined by the Commission have a right to appeal to

state court and may raise claims that the Commission’s

disciplinary order “is in violation of constitutional

provisions on its face or as applied[.]” Wash. Rev. Code

§ 34.05.570(3)(a). As a panel of our Court explained in

Alsager, this process affords litigants an “adequate

opportunity to raise [their] constitutional claims.”6 573 F.

App’x at 620–21; see also Buckwalter, 678 F.3d at 748

(“Should he lose in the disciplinary hearing, Buckwalter will

6 In their reply brief, Plaintiffs argue that the fourth element is not met

because they cannot raise constitutional challenges before the

Commission and must wait until an appeal is taken to state court. This

argument is doubly forfeited, as it was not raised in the Plaintiffs’ district

court briefing or in their opening brief. See Lui, 129 F.4th at 780.

Regardless, this argument fails under binding precedent. See

Buckwalter, 678 F.3d at 747 (“The . . . factor is satisfied by the fact that

Nevada courts may entertain federal questions when they review the

Board’s judgments.”); Kenneally v. Lungren, 967 F.2d 329, 332 (9th Cir.

1992) (“‘[E]ven if a federal plaintiff cannot raise his constitutional

claims in state administrative proceedings that implicate important state

interests, his ability to raise the claims via state judicial review of the

administrative proceedings suffices.’” (quoting Partington v. Gedan,

880 F.2d 116, 124 (9th Cir. 1989), rev’d on other grounds, 497 U.S. 1020

(1990) (mem.))).

STOCKTON V. BROWN 17

have an adequate opportunity to raise his federal

constitutional challenges on appeal to the Nevada courts.”).

With the four threshold elements of Younger satisfied for

Claims II, III, and IV, the inquiry becomes “whether the

federal action would have the practical effect of enjoining

the state proceedings and whether an exception to Younger

applies.” Yelp, 137 F.4th at 951 (quoting ReadyLink

Healthcare, 754 F.3d at 759). The first of these questions is

easily resolved because the Plaintiffs expressly requested

“permanent injunctive relief barring the Defendants from

continuing all current investigations and prosecutions[] of

physicians” that are allegedly based on protected speech.

We thus turn to the exceptions to Younger abstention.

b. Exceptions to Younger abstention

“Younger indicated that abstention would not be

warranted upon a ‘showing of bad faith, harassment, or any

other unusual circumstance that would call for equitable

relief.’” Yelp, 137 F.4th at 951 (quoting Younger, 401 U.S.

at 54); see also Arevalo, 882 F.3d at 765–66 (“[E]ven if

Younger abstention is appropriate, federal courts do not

invoke it if there is a ‘showing of bad faith, harassment, or

some other extraordinary circumstance that would make

abstention inappropriate.’” (quoting Middlesex Cnty. Ethics

Comm., 457 U.S. at 435)).

The Plaintiffs argue that this case falls within these

exceptions for several reasons. They first argue that the state

enforcement proceedings were brought in bad faith because

they were intended to deter unpopular speech in violation of

the First Amendment. This argument is insufficient for

avoiding Younger.

18 STOCKTON V. BROWN

“‘[I]n the Younger abstention context, bad faith

“generally means that a prosecution has been brought

without a reasonable expectation of obtaining a valid

conviction.”’” Yelp, 137 F.4th at 951 (quoting Baffert, 332

F.3d at 621). Such bad faith might be shown by repeated

harassment, bias, or when the proceeding is brought with no

legitimate purpose. See id. at 951–52; see also Bristol-

Myers Squibb, 979 F.3d at 738; Krahm v. Graham, 461 F.2d

703, 707 (9th Cir. 1972). But a mere allegation of bad faith

or unconstitutionality is not a get-out-of-abstention-free

card. See Yelp, 137 F.4th at 952–53. Otherwise, “every state

court defendant could become a federal court plaintiff

seeking an injunction of the state proceedings in which its

defenses could properly be interposed.” Id. at 952. Under

this standard, we are unconvinced that this is one of the rare

cases where the proceedings were “brought without a

reasonable expectation of obtaining a valid judgment”

against the physicians. Id.

The Plaintiffs point to cases indicating that the bad faith

exception can apply “when a state commences a prosecution

or proceeding to retaliate for” constitutionally protected

conduct. See, e.g., Bishop v. State Bar of Tex., 736 F.2d 292,

294 (5th Cir. 1984). According to the Plaintiffs, because the

disciplinary proceedings were brought in retaliation for

protected speech—and to deter unpopular speech—Younger

abstention does not apply. But this rule does not help the

Plaintiffs escape abstention.

As with an allegation of bad faith, an allegation of a

retaliatory motive is not a “talisman sufficient to overcome

an otherwise proper exercise of abstention.” Yelp, 137 F.4th

at 953 (quoting Applied Underwriters, Inc. v. Lara, 37 F.4th

579, 597 (9th Cir. 2022)). Because Younger abstention is

based on concerns of federalism and comity, we intervene in

STOCKTON V. BROWN 19

pending state proceedings only when the “retaliatory motive

or harassment [is] sufficiently severe or pervasive to

legitimize our halt of state court proceedings in which these

same constitutional objections could be raised.” Id. at 954.

Although the Plaintiffs insist that this is one of those

cases given the volume of purportedly unconstitutional

charges brought against physicians, we are unpersuaded.

Even leaving aside the fact that the record lacks details about

any proceedings except for those against Dr. Eggleston and

Dr. Siler, the Plaintiffs have failed to show why their free-

speech rights could not be adequately protected by the state

courts. This is a far cry from the extreme circumstances in

which courts have applied this aspect of the bad faith

exception, which have involved charges clearly filed for

harassment or some other improper purpose. Cf. Krahm, 461

F.2d at 707 (concluding that abstention was inappropriate in

a case involving over a hundred prosecutions and where

successful defense against some prosecutions just led to the

filing of additional charges); Cullen v. Fliegner, 18 F.3d 96,

104 (2d Cir. 1994) (concluding that abstention was

inappropriate where the proceedings were instituted due to

personal conflicts and animus). 7 These cases set forth a

strikingly “narrow” exception to Younger. See Yelp, 137

F.4th at 953–56.

7 That was also the case in Dombrowski v. Pfister, a pre-Younger case

relied on heavily by the Plaintiffs. See 380 U.S. 479, 483–86 (1965)

(concluding that irreparable injury was shown when statutes were

threatened to be enforced in a racially discriminatory manner and to

harass Black citizens). The Plaintiffs also fail to reckon with the fact that

the general principles set forth in Dombrowski were limited by Younger

itself. See Younger, 401 U.S. at 50–53 (making clear that a chilling effect

on speech alone is not sufficient to justify federal interference in state

proceedings).

20 STOCKTON V. BROWN

This is not one of the cases that fall within that narrow

exception, notwithstanding the First Amendment interests at

play. See id. at 955 (concluding that a plaintiff had not

shown harassment or retaliation when it failed to show bias

by the tribunal, a serial pattern of litigation against the

plaintiff, or a history of personal conflict or animus). By the

allegations of the operative complaint, there was no

concerted bad-faith campaign against any of the physicians;

to the contrary, there is only a bald assertion that the

Commission is infringing the First Amendment rights of the

physicians by disciplining them.

The Plaintiffs further insist that the bad-faith exception

applies because this case involves “censorship” in violation

of the First Amendment. This argument fails:

notwithstanding the importance of free speech rights in our

democratic society, there is no free-speech exception to

Younger abstention. See Yelp, 137 F.4th at 953; Bristol-

Myers Squibb, 979 F.3d at 738 (rejecting the argument that

because “First Amendment interests are at stake,” greater

scrutiny of Younger abstention was warranted because

“Younger abstention routinely applies even when important

rights are at stake”); accord Younger, 401 U.S. at 50

(rejecting the argument that a chilling effect on speech can,

alone, be sufficient to justify federal intervention into a state

proceeding). As we reasoned in Yelp, “[m]any cases

applying Younger—and Younger itself—abstained from

enjoining state court proceedings in the face of arguments

that applying a state statute would be unconstitutional,

including under the First Amendment.” 137 F.4th at 953. In

short, free-speech rights are treated like other constitutional

rights in the Younger analysis—in the interest of comity, we

generally rely on state courts to vindicate those rights in state

proceedings.

STOCKTON V. BROWN 21

Finally, “[f]ederal courts will not abstain under Younger

in ‘extraordinary circumstances where irreparable injury can

be shown.’” Page v. King, 932 F.3d 898, 902 (9th Cir. 2019)

(quoting Brown v. Ahern, 676 F.3d 899, 903 (9th Cir. 2012)).

Mirroring their argument on bad faith, the Plaintiffs insist

that this exception applies because of the importance of the

free-speech rights involved and the scope of the

Commission’s purportedly unlawful activities.

We are unpersuaded. The fact that a case involves “First

Amendment concerns” is not enough to “bring [that] case

within the scope of the [extraordinary-circumstances]

exception.” Bristol-Myers Squibb, 979 F.3d at 738. This is

not a situation where the Plaintiffs’ rights cannot be

vindicated in due course in state court. Cf. Bean v.

Matteucci, 986 F.3d 1128, 1134–35 (9th Cir. 2021)

(concluding that the extraordinary-circumstances exception

applied because a plaintiff could not later vindicate his right

to be free from forcible medication). Thus, the exception is

inapplicable.

2. Claim I

We agree with the district court’s decision that Younger

abstention forecloses consideration of Claim I for Dr.

Eggleston and Dr. Siler but disagree with that conclusion as

to the remaining Plaintiffs.

Dr. Eggleston and Dr. Siler are the subjects of ongoing

state disciplinary proceedings. Yet through Claim I they

would purport to obtain a court order declaring future

proceedings of the same kind unlawful under the First

Amendment. Such a shortcut around Younger is not

permissible. It takes little imagination to see that such an

order would have the practical effect of enjoining Dr.

22 STOCKTON V. BROWN

Eggleston’s and Dr. Siler’s own ongoing state proceedings.

See Yelp, 137 F.4th at 951.

As a leading treatise explains, if a Younger-qualifying

state proceeding is pending, “the defendant in that action

cannot escape the bar of Younger by suing in federal court

only to enjoin future state prosecutions, since there would be

a risk that a federal court judgment would influence the

pending state court prosecution.” 17B WRIGHT & MILLER’S

FEDERAL PRACTICE & PROCEDURE § 4252 (3d ed. 2025); see

also, e.g., Ballard v. Wilson, 856 F.2d 1568, 1570 (5th Cir.

1988) (“Although Ballard confines his request to future

prosecutions, we cannot ignore the fact that any injunction

or declaratory judgment issued by a federal court would

affect the course and outcome of the pending state

proceedings. . . . This is precisely the sort of interference

condemned by the Supreme Court in Younger . . . .”); Suggs

v. Brannon, 804 F.2d 274, 279 (4th Cir. 1986) (concluding

that the district court “did not err by denying injunctive relief

against future searches and seizures” because such an

injunction “would intrude upon the pending state

prosecutions where the appellants can question the

constitutionality of the searches and seizures”); United

Books, Inc. v. Conte, 739 F.2d 30, 33 (1st Cir. 1984)

(affirming the district court’s decision to decline an

injunction enjoining future prosecutions because such an

injunction would interfere with an ongoing prosecution of

the plaintiff).

Younger abstention does not foreclose Claim I as to Dr.

Moynihan, Stockton, and CHD, however. As the Plaintiffs

accurately observe, Younger abstention generally applies

only when a party seeks to interfere with “ongoing” state

proceedings—not future proceedings. In other words, when

a party who is not otherwise the subject of ongoing state

STOCKTON V. BROWN 23

proceedings seeks “wholly prospective” relief, Younger

abstention is inapplicable. Wooley v. Maynard, 430 U.S.

705, 711 (1977). That is precisely the case here. In Claim

I, the Plaintiffs requested declaratory and injunctive relief

prohibiting “future investigations, prosecutions, and

sanctioning of physicians” based on their COVID-19-related

speech. Thus, at least for some of the Plaintiffs—namely,

Dr. Moynihan, Stockton, and CHD, who are not the subject

of ongoing disciplinary proceedings—Younger abstention

poses no bar to our consideration of Claim I. See id.; see

also Seattle Pac. Univ. v. Ferguson, 104 F.4th 50, 63–65 (9th

Cir. 2024) (concluding that Younger abstention was

inapplicable when the state attorney general had not yet

initiated enforcement actions).

In short, Claims II, III, and IV, as asserted by all of the

Plaintiffs, are barred by Younger abstention because, as the

Plaintiffs have framed them, they challenge ongoing state

proceedings.8 So is Claim I as asserted by Dr. Eggleston and

8 The concurring opinion concludes that Claims III and IV as asserted

by Dr. Moynihan are not barred by Younger abstention. Under the

unique circumstances of this case, we disagree for two reasons. First,

the Plaintiffs themselves expressly frame Claims III and IV as

challenging “current enforcement activities,” see supra n.4, rather than

the more abstract legal challenge present in the case which the

concurring opinion cites, Green v. City of Tucson, 255 F.3d 1086, 1099–

1100 (9th Cir. 2001). These claims thus run headlong into Younger

abstention. Second, the concurring opinion is certainly correct that

“when the federal plaintiff is not a party to the state court action, a mere

commonality of interest with a party to the state litigation is not sufficient

to justify abstention.” Id. at 1100. But Younger will “oust a district court

of jurisdiction over a case where the plaintiff is not a party to an ongoing

state proceeding” when the plaintiff’s “interest is so intertwined with

those of the state court party that direct interference with the state court

proceeding is inevitable[.]” Id. By framing Dr. Moynihan’s Claims III

and IV as challenges to ongoing proceedings against Dr. Siler, the

24 STOCKTON V. BROWN

Dr. Siler. We accordingly conclude that the district court

properly dismissed these claims. It will be up to the state

courts to address the constitutional questions raised in those

claims. But Younger abstention is inapplicable to Claim I as

asserted by the remaining Plaintiffs.

II. Ripeness

“‘The ripeness doctrine is “drawn both from Article III

limitations on judicial power and from prudential reasons for

refusing to exercise jurisdiction . . . .”’” Project Veritas v.

Schmidt, 125 F.4th 929, 941 (9th Cir. 2025) (en banc)

(quoting Nat’l Parks Hosp. Ass’n v. Dep’t of Interior, 538

U.S. 803, 808 (2003)) (omission in original). “The ripeness

doctrine ‘is peculiarly a question of timing,’ designed ‘to

separate matters that are premature for review because the

injury is speculative and may never occur from those cases

that are appropriate for federal court action.’” Wolfson v.

Brammer, 616 F.3d 1045, 1057 (9th Cir. 2010) (first quoting

Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102,

140 (1974); then quoting Portman v. Cnty. of Santa Clara,

995 F.2d 898, 902 (9th Cir. 1993)). “There are two ripeness

considerations: constitutional and prudential.”

Stavrianoudakis v. U.S. Fish & Wildlife Serv., 108 F.4th

1128, 1139 (9th Cir. 2024).

A. Constitutional Ripeness

Plaintiffs have entangled Dr. Moynihan’s Claims III and IV with those

of Dr. Eggleston and Dr. Siler. We could not reach Dr. Moynihan’s

challenge to those enforcement activities without directly interfering

with the ongoing disciplinary proceedings of Dr. Eggleston and Dr.

Siler. Indeed, Plaintiffs make no effort to argue that Dr. Moynihan’s

Claim III and Claim IV are different from those of the other Plaintiffs for

purposes of Younger. Seen through that lens, we see Claims III and IV

as barred by Younger abstention across the board.

STOCKTON V. BROWN 25

For a claim to be justiciable, it must be constitutionally

ripe. See Twitter, Inc. v. Paxton, 56 F.4th 1170, 1173 (9th

Cir. 2022), as amended (Dec. 14, 2022). “[T]he

constitutional component of ripeness is synonymous with

the injury-in-fact prong of the standing inquiry.” Id.

(quoting Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d

1088, 1094 n.2 (9th Cir. 2003)). “Whether framed as an

issue of standing or ripeness, an injury must involve ‘an

invasion of a legally protected interest that is (a) concrete

and particularized, and (b) actual or imminent, not

conjectural or hypothetical.’” Id. (quoting Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560 (1992)) (alteration omitted); see

also Stavrianoudakis, 108 F.4th at 1139 (“Constitutional

ripeness overlaps with the injury-in-fact element of Article

III standing, and ‘therefore the inquiry is largely the same:

whether the issues presented are definite and concrete, not

hypothetical or abstract.’” (quoting Ass’n of Irritated

Residents v. EPA, 10 F.4th 937, 944 (9th Cir. 2021))). “But

‘[w]hile standing is primarily concerned with who is a proper

party to litigate a particular matter, ripeness addresses when

that litigation may occur.’” Planned Parenthood Great Nw.,

Haw., Alaska, Ind., Ky. v. Labrador, 122 F.4th 825, 839 (9th

Cir. 2024) (quoting Lee v. Oregon, 107 F.3d 1382, 1387 (9th

Cir. 1997)) (alteration in original).

The district court concluded that the Plaintiffs’ claims

were constitutionally unripe because they failed to allege a

cognizable injury to any Plaintiff with concreteness and

particularity. That included the claims of Dr. Moynihan,

Stockton, and CHD, as the district court found the injuries to

those Plaintiffs to be based solely on “speculation and

conjecture.”

As with Younger abstention, we will undertake the

claim-by-claim analysis that the district court did not. In

26 STOCKTON V. BROWN

doing so, we are guided by the Plaintiffs’ own framing of the

ripeness issue.9

We begin with Claims II, III, and IV. The Plaintiffs

argue at length that Dr. Eggleston and Dr. Siler have suffered

the requisite injury-in-fact to make Claims II, III, and IV

ripe. They also argue that Dr. Moynihan has suffered the

requisite injury-in-fact for purposes of Claims II and III. But

we need not reach these arguments in light of our conclusion

that Younger abstention bars our consideration of Claims II,

III, and IV as asserted by all Plaintiffs. See Sinochem Int’l

Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431

(2007); Potter v. Hughes, 546 F.3d 1051, 1055 (9th Cir.

2008). In light of our conclusion regarding Younger

abstention, we also do not reach the question of whether

Claim I, as asserted by Dr. Eggleston and Dr. Siler, is

constitutionally ripe.

We are thus left with the question of whether Claim I as

asserted by the remaining Plaintiffs is constitutionally ripe.

At oral argument, the Plaintiffs asserted that they had

suffered the requisite injury-in-fact for Claim I because

(1) Dr. Moynihan’s speech had been chilled due to his fear

of disciplinary proceedings being brought against him and

(2) the Plaintiffs suffered an injury to their right to listen to

views about COVID-19 that fall outside the “mainstream”

narrative. As explained below, the Plaintiffs have waived

the former argument, and the latter argument is unavailing.

9 The Plaintiffs cast the constitutional-ripeness inquiry as one of

standing. In this context, the constitutional ripeness and standing

inquiries are “substantively similar,” and we will treat the Plaintiffs’

standing arguments as bearing on the constitutional ripeness issue. See

Twitter, 56 F.4th at 1173–74.

STOCKTON V. BROWN 27

1. Purported Chilling of Dr. Moynihan’s Speech

At oral argument, the Plaintiffs suggested that the

concrete injury for purposes of Claim I could be based on a

chilling of Dr. Moynihan’s speech—that is, that Dr.

Moynihan feared to express his opinions about COVID-19

out of fear of being investigated and disciplined by the

Commission, so he has suffered the necessary injury to bring

a general challenge to future investigations and prosecutions.

However, we deem this argument waived.

“We review only issues which are argued specifically

and distinctly in a party’s opening brief. We will not

manufacture arguments for an appellant, and a bare assertion

does not preserve a claim, particularly when, as here, a host

of other issues are presented for review.” Brownfield v. City

of Yakima, 612 F.3d 1140, 1149 n.4 (9th Cir. 2010) (quoting

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)).

Likewise, arguments that are raised for the first time at oral

argument are deemed waived, and we will not reach them.

See McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir.

2009); Wood v. Hall, 130 F.3d 373, 377 (9th Cir. 1997).

In their appellate briefing, the Plaintiffs argue only that

the alleged chilling of Dr. Moynihan’s speech qualified as

the requisite injury-in-fact for purposes of challenging

ongoing, as opposed to future, proceedings through Claims

II and III—claims that are, as explained above, barred by the

doctrine of Younger abstention. In contrast, when arguing

that they had suffered a cognizable injury-in-fact for

purposes of Claim I, the Plaintiffs argue only that they had

suffered an injury to their right to hear and receive

information. Thus, there is no argument in the appellate

briefing that the concrete injury for purposes of Claim I

could be based on a chilling impact to Dr. Moynihan.

28 STOCKTON V. BROWN

Moreover, even where the Plaintiffs mention the alleged

chilling of Dr. Moynihan’s speech in their briefing with

respect to Claims II, III, and IV, their arguments do not

persuade.

We “appl[y] the requirements of ripeness and standing

less stringently in the context of First Amendment claims.”

Twitter, 56 F.4th at 1173–74 (quoting Wolfson, 616 F.3d at

1058). “This does not mean, however, that any plaintiff may

bring a First Amendment claim ‘by nakedly asserting that

his or her speech was chilled . . . .’” Id. (omission in

original) (quoting Getman, 328 F.3d at 1095). Our pre-

enforcement standing inquiry “focuses on (1) whether the

plaintiffs have articulated a concrete plan to violate the law

in question, (2) whether the prosecuting authorities have

communicated a specific warning or threat to initiate

proceedings, and (3) the history of past prosecution or

enforcement under the challenged statute.” Twitter, 56 F.4th

at 1174 (quoting Alaska Right to Life Pol. Action Comm. v.

Feldman, 504 F.3d 840, 849 (9th Cir. 2007)); see also

Tingley v. Ferguson, 47 F.4th 1055, 1067 (9th Cir. 2022).

The Plaintiffs’ briefing barely mentions this rubric and

does not even attempt to explain how the purported chilling

injury to Dr. Moynihan satisfies it. They raise only the “bare

assertion,” Brownfield, 612 F.3d at 1149 n.4, that

“Moynihan’s speaking out against the mainstream COVID

narrative appears to be prohibited by Appellees’ program”

and that “[t]his satisfies pre-enforcement standing.” Such

barebones briefing, which requires the court to perform all

of the analytical heavy lifting and fill in the blanks left empty

by the appellant, comes dangerously close to waiving the

issue.

STOCKTON V. BROWN 29

In any event, the Plaintiffs have failed to bear their

burden to show the requisite injury-in-fact to confer subject-

matter jurisdiction. See Bishop Paiute Tribe v. Inyo Cnty.,

863 F.3d 1144, 1151 (9th Cir. 2017). Notwithstanding the

relaxed standing principles in the context of the First

Amendment, “‘[t]he potential plaintiff must have an ‘actual

or well-founded fear that the law will be enforced against’

it.” Twitter, 56 F.4th at 1174 (quoting Feldman, 504 F.3d at

851). The potential plaintiff must thus “giv[e] details about

their future speech such as ‘when, to whom, where, or under

what circumstances’” they intend to violate the law in

question. Lopez v. Candaele, 630 F.3d 775, 787 (9th Cir.

2010), as amended (Dec. 16, 2010) (quoting Thomas v.

Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th

Cir. 2000) (en banc)).10

The First Amended Complaint contains no details about

Dr. Moynihan’s speech except for it falling outside the

10 This showing is relaxed if the plaintiff can show that he previously

violated the law in question. See Tingley, 47 F.4th at 1068 (“[W]e de not

require plaintiffs to specify ‘when, to whom, where, or under what

circumstances’ they plan to violate the law when they have already

violated the law in the past.”); see also Meinecke v. City of Seattle, 99

F.4th 514, 520 (9th Cir. 2024). Although Dr. Moynihan was previously

investigated by the Commission, it is hard to see how he could reap the

benefits of this rule. Dr. Moynihan was investigated by the Commission

after it received a complaint that he “had given informed consent about

the Covid vaccines” to a patient. According to the Commission, it

investigated the complaint, which was based on the allegation that Dr.

Moynihan “was disseminating misinformation about COVID-19

vaccines,” and closed its investigation without taking action. In the

absence of more detailed allegations about this past investigation, we are

unpersuaded that this is a situation where Dr. Moynihan “already

violated the law [at issue] in the past.” Tingley, 47 F.4th at 1068.

Furthermore, the Plaintiffs make no effort to invoke this rule or explain

why Dr. Moynihan would fit within it.

30 STOCKTON V. BROWN

“mainstream COVID narrative.” Nor does Dr. Moynihan’s

declaration set forth enough for us to conclude that a chilling

injury is present. Dr. Moynihan’s declaration explains that

he “think[s]” that “continued COVID boosters are

unnecessary and even potentially dangerous” and that he

“believe[s] that . . . Ivermectin and [Hydroxychloroquine]

are highly effective.” But there is a dearth of information

about what Dr. Moynihan wishes to say on those topics,

whom he wants to speak to, and under what circumstances

he intends to speak. The Plaintiffs’ briefing is silent on how

these statements would be sufficient and whether they would

comport with our framework for pre-enforcement standing

and ripeness.

Our recent decision in Flaxman v. Ferguson, --- F.4th --

-- (9th Cir. Aug. 22, 2025), does not require a different result.

That case involved a pair of University of Washington

professors who moderated a campus listserv. Slip Op. at 5.

The professors alleged that they had previously been

retaliated against for their protected speech in moderating

the listserv, and they sought to challenge specific speech-

restricting policies and practices that allegedly chilled their

speech. Slip Op. at 11–12. Here, unlike the plaintiffs in

Flaxman, Dr. Moynihan was not previously disciplined for

his speech, and his challenge is comparably much less

specific.

“At bottom,” the Plaintiffs bear the burden of showing

federal subject-matter jurisdiction, “and we are not obliged

to take up their mantle” and flesh out perfunctory

justiciability arguments that the Plaintiffs failed to develop

or make with any specificity. Shields Law Grp., LLC v.

Stueve Siegel Hanson LLP, 95 F.4th 1251, 1292 (10th Cir.

2024). That is the situation here. Plaintiffs’ opening brief

never argued that Claim I was constitutionally ripe based on

STOCKTON V. BROWN 31

an injury to Dr. Moynihan’s right to speak. And even when

it did mention Dr. Moynihan’s right to speak (in respect to

other claims), it did so in an undeveloped and cursory

manner. Accordingly, we conclude that given the non-

specific allegations and the presentation of the issues before

us, Claim I cannot be constitutionally ripe based on a chilling

impact on Dr. Moynihan’s speech.

2. Listener Standing

We turn now to the Plaintiffs’ main argument: that, for

the purposes of Claim I, there has been an injury to Dr.

Moynihan, Stockton, and CHD, who have a right to hear

information about COVID-19 from physicians who want to

air their dissenting views. For the reasons below, we reject

this argument and conclude that the Plaintiffs have not

alleged the required injury-in-fact to make Claim I

constitutionally ripe as to these Plaintiffs.

“[T]he Constitution protects the right to receive

information and ideas. This right to receive information and

ideas, regardless of their social worth, is fundamental to our

free society.” Thunder Studios, Inc. v. Kazal, 13 F.4th 736,

743 (9th Cir. 2021) (quoting Stanley v. Georgia, 394 U.S.

557, 564 (1969)). But although the Supreme Court has

recognized a “‘First Amendment right to receive information

and ideas,’ [it has] identified a cognizable injury only where

the listener has a concrete, specific connection to the

speaker.” Murthy, 603 U.S. at 75 (quoting Kleindienst v.

Mandel, 408 U.S. 753, 762 (1972)). Thus, the Supreme

Court has held that a group of professors had a First

Amendment interest in challenging the visa denial of an

individual they had invited to speak and debate at a

conference. See Mandel, 408 U.S. at 762–75. And it

concluded that prescription-drug consumers could challenge

32 STOCKTON V. BROWN

prohibitions on advertising drug prices. See Va. State Bd. of

Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.

748, 756–57 (1972). In contrast, the plaintiffs in Murthy had

no standing to challenge the censorship of others on social

media. See 603 U.S. at 75. They had no freestanding interest

in hearing such information and they had failed to show the

requisite connection based on the theory that hearing

unfettered speech was crucial to their work and advocacy.

See id. The plaintiffs failed to identify specific speakers or

topics that they were unable to listen to. See id. at 74–76.

The Plaintiffs assert three different theories on which

they have listener standing. First, relying on Mandel and

Murthy, the Plaintiffs assert that Stockton has a sufficient

connection with Dr. Eggleston such that Stockton has

suffered a concrete injury from Dr. Eggleston’s prosecution

and investigation. We disagree. Even taking into account

the additional materials that Stockton has provided in his

motion to supplement,11 the record shows only that Stockton

is an avid reader of Dr. Eggleston’s work, has hosted Dr.

Eggleston on his podcast, and helped to connect Dr.

Eggleston with Robert F. Kennedy, Jr. and CHD to bring this

case. Although this evidence shows that Stockton had some

connection with Dr. Eggleston, this does not rise to the

requisite level for a constitutional injury-in-fact. See

Murthy, 603 U.S. at 75. This is a far cry from Mandel.

There, the plaintiffs had a First Amendment interest in

meeting with, hearing from, and debating a foreign national

that they had invited to a conference. See 408 U.S. at 762–

65. Here, in contrast, there is no such connection beyond an

avid interest in, and affection for, Dr. Eggleston and his

work; there is no suggestion, for example, that Stockton

11 Stockton’s motion to supplement is granted (Dkt. 22).

STOCKTON V. BROWN 33

wished to have Dr. Eggleston on his podcast again but was

prevented from doing so due to the proceedings against Dr.

Eggleston. On the continuum from Murthy to Mandel,

Stockton falls far closer to the insufficient showing in

Murthy. See 603 U.S. at 74–76.

The Plaintiffs’ theory of injury would seemingly give

any listener who has an interest in a speaker’s work standing

to challenge laws that purportedly restrict the speaker’s

speech. We refuse to countenance such a “startlingly broad”

theory of injury. See Murthy, 603 U.S. at 74–75 (rejecting

listeners’ argument that because of their “interest in reading

and engaging with the content of other speakers on social

media,” they had standing to challenge the alleged

censorship of those other speakers).

Furthermore, even if this connection was sufficient to

give Stockton an injury from the prosecution and

investigation of Dr. Eggleston’s speech, it would still not

help establish a sufficient injury-in-fact for purposes of

Claim I. Unlike Claims II, III, and IV, Claim I focuses on

the speech of future, hypothetical doctors. Any purported

injury to Stockton from the regulation of those other doctors

is, as the district court said, “based on speculation and

conjecture.”

Second, the Plaintiffs, again relying on Mandel, assert

that CHD has a personal connection with Dr. Moynihan,

who allegedly has had his COVID-19 speech chilled by the

Commission’s actions. 12 But, as explained above, the

12 To the extent that CHD intends to assert this claim on behalf of its

members—rather than on its own behalf—it has waived that argument.

To be sure, “[o]rganizations can assert standing on behalf of their own

members or in their own right.” E. Bay Sanctuary Covenant v. Biden,

993 F.3d 640, 662 (9th Cir. 2021), as amended (March 24, 2021)

34 STOCKTON V. BROWN

Plaintiffs have waived the argument that Dr. Moynihan has

suffered a concrete injury from the chilling of his speech for

purposes of Claim I. Even if the theory were not waived, the

Plaintiffs have failed to show a concrete injury to Dr.

Moynihan’s right to speak. There can thus be no injury to

CHD’s right to receive information from Dr. Moynihan—

after all, CHD’s theory depends on there actually being an

injury to Dr. Moynihan’s right to speak. See Murthy, 603

U.S. at 75 (explaining the limited circumstances in which an

individual could sue over “someone else’s censorship”);

Pennsylvania Fam. Inst., Inc. v. Black, 489 F.3d 156, 165

(3d Cir. 2007) (“[T]he right to receive speech is ‘entirely

derivative’ of the rights of the speaker.” (quoting In re

Application of Dow Jones & Co., Inc., 842 F.2d 603, 608 (2d

Cir. 1988)); see also Indiana Right to Life, Inc. v. Shepard,

507 F.3d 545, 549 (7th Cir. 2007) (explaining that there is

no listener standing “[i]f there is no willing speaker, or if no

speaker has been subjected to sanctions” (emphasis added)).

We note also that the Plaintiffs have made little effort to

explain how the listener—CHD—“has a concrete, specific

connection to the speaker,” Dr. Moynihan. Murthy, 603 U.S.

at 75. The Plaintiffs assert, generally, that they “have the

right to hear the views of any Washington licensed physician

who may choose to speak out against the public health Covid

narrative.” All that is alleged about the connection between

(citations omitted). The former is sometimes called associational

standing and carries its own set of requirements. See Hunt v. Wash. State

Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). Fatally, although the

Plaintiffs assert in passing that CHD has standing to sue on behalf of its

members, any argument that CHD has associational standing is waived

by being raised only in a footnote. See City of Emeryville v. Robinson,

621 F.3d 1251, 1262 n.10 (9th Cir. 2010). There is simply no assertion

that the Hunt requirements for associational standing have been met.

STOCKTON V. BROWN 35

Dr. Moynihan and CHD, though, is that Dr. Moynihan is a

member of and volunteers for CHD. There are no details

besides those indicating how CHD would be impacted by

purported restrictions on the speech of its members and

volunteers. Indeed, it is unclear what the role of such

members and volunteers is within CHD, so we cannot

conclude that CHD has shown that it is injured by

restrictions on Dr. Moynihan’s speech.

Plaintiffs cite no authority for the proposition that the

connection between an organization and a member is enough

to invoke listener standing under Mandel. Indeed, there is

far less of a concrete connection between CHD and Dr.

Moynihan’s speech than was present in Mandel. There, the

listeners specifically invited the third-party speaker to

conferences for the purpose of making speeches and

debating and thus suffered an injury when he was not

permitted to enter the United States to attend. See 408 U.S.

at 762–65. The conclusory statements here about the

connection between CHD and Dr. Moynihan do not rise to

that level.

Third, the Plaintiffs assert that they (especially CHD)

have been injured for purposes of Claim I because they have

an interest in consuming information about COVID-19 that

is being suppressed as a result of the Commission’s

investigations and prosecutions. According to them, such an

injury is cognizable based on Virginia State Board of

Pharmacy and Murthy.

We disagree. Murthy expressly rejected the argument

that it is sufficient for standing to “claim an interest in”

another’s speech. 603 U.S. at 74. It observed that Virginia

State Board of Pharmacy fell outside this general rule

because in that case “prescription-drug consumers had an

36 STOCKTON V. BROWN

interest in challenging the prohibition on advertising the

price of those drugs.” Id. at 75 (citing Va. State Bd. of

Pharmacy, 425 U.S. at 755–76). The Plaintiffs frame

themselves as “consumers of information” and insist that this

is sufficient. But, in doing so, the Plaintiffs overread

Virginia State Board of Pharmacy, which holds only that

consumers of a product can challenge restrictions on the

dissemination of information about that product. See

Murthy, 603 U.S. at 75; Va. State Bd. of Pharmacy, 425 U.S.

at 755–56.

Moreover, we cannot countenance the Plaintiffs’

sweeping theory that an interest in consuming content can

form the basis for an injury-in-fact. Accepting that argument

would water down the injury-in-fact requirement in First

Amendment cases beyond recognition. And it would be at

odds with the thrust of Murthy, which rejected a similarly

broad theory of listener standing. See 603 U.S. at 75.

Indeed, this case shows the importance of ensuring that

ripeness and standing provide guardrails, even in First

Amendment cases. At bottom, the Plaintiffs’ theory for

Claim I is that there is an injury to their right to listen to

discourse about COVID-19 from hypothetical future

speakers—speakers who may or may not speak, who may or

may not be disciplined, who may or may not have their

speech chilled, and who may or may not be connected with

the Plaintiffs. This is too speculative and non-concrete to

satisfy the injury-in-fact requirement.

For those reasons, Claim I is constitutionally unripe

because no injury has yet been suffered. It is thus

nonjusticiable and was properly dismissed.

B. Prudential Ripeness

STOCKTON V. BROWN 37

Finally, we turn to the prudential component of ripeness.

The district court concluded that none of the Plaintiffs’

claims are prudentially ripe and thus must be dismissed. In

light of our conclusion that we must abstain from reaching

the merits of Claims II, III, and IV as raised by all Plaintiffs

and Claim I as raised by Dr. Eggleston and Dr. Siler, we

express no opinion as to whether those claims are

prudentially ripe. See Sinochem Int’l, 549 U.S. at 431;

Potter, 546 F.3d at 1055. As to Claim I asserted by the

remaining Plaintiffs, we agree that that claim is not

prudentially ripe, which is an independent basis for

dismissal.

At the outset, we first address the Plaintiffs’ request that

we jettison the doctrine of prudential ripeness. We cannot

do as the Plaintiffs ask. The Plaintiffs are correct that “[t]he

Supreme Court has stated that the prudential ripeness

doctrine is ‘in some tension’ with ‘the principle that “a

federal court’s obligation to hear and decide” cases within

its jurisdiction “is virtually unflagging.”’” Planned

Parenthood Great Nw., 122 F.4th at 840 (quoting Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 167 (2014)). But,

as a three-judge panel, we remain bound by our prudential

ripeness precedents unless they are “clearly irreconcilable

with the reasoning or theory of intervening higher

authority.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.

2003) (en banc). That is a “high standard.” Lair v. Bullock,

697 F.3d 1200, 1207 (9th Cir. 2012) (quoting United States

v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011) (per

curiam)). “It is not enough for there to be ‘some tension’

between the intervening higher authority and prior circuit

precedent, or for the intervening higher authority to ‘cast

doubt’ on the prior circuit precedent[.]” Id. (first quoting

United States v. Orm Hieng, 679 F.3d 1131, 1140–41 (9th

38 STOCKTON V. BROWN

Cir. 2012); then quoting Delgado-Ramos, 635 F.3d at 1239

(citations omitted).

Under this standard, the Supreme Court’s observation in

Driehaus does not relieve us of our obligation, as a panel, to

follow our prudential ripeness precedents. Thus, “[b]ecause

the Supreme Court ‘has not yet had occasion to “resolve the

continuing vitality of the prudential ripeness doctrine,”’ we

apply it [] regardless of any uncertainty about its life

expectancy.” Skyline Wesleyan Church v. Cal. Dep’t of

Managed Health Care, 968 F.3d 738, 751 n.9 (9th Cir.

2020), as amended (July 21, 2020) (quoting Fowler v.

Guerin, 899 F.3d 1112, 1116–18, 1116 n.1 (9th Cir.

2018)).13

Having established that the prudential ripeness doctrine

remains viable, we turn to whether it is satisfied. “The

prudential ripeness inquiry is ‘guided by two overarching

considerations: the fitness of the issues for judicial decision

and the hardship to the parties of withholding court

consideration.’” Project Veritas, 125 F.4th at 941 (quoting

Bishop Paiute Tribe, 863 F.3d at 1154). “The prudential

considerations of ripeness are amplified where constitutional

issues are concerned.” Scott v. Pasadena Unified Sch. Dist.,

306 F.3d 646, 662 (9th Cir. 2002).

“The fitness prong is met when ‘the issues raised are

primarily legal, do not require further factual development,

and the challenged action is final.’” Tingley, 47 F.4th at

1070 (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109,

1126 (9th Cir. 2009)). “We consider whether the action ‘has

13 To be sure, considerations of prudential ripeness are discretionary,

and we are not obligated to apply them in every case. See Bishop Paiute

Tribe, 863 F.3d at 1154. That does not change the reality that we, as a

three-judge panel, lack the power to abolish the doctrine altogether.

STOCKTON V. BROWN 39

a direct and immediate effect on the complaining parties;

whether the action has the status of law; and whether the

action requires immediate compliance with its terms.’” Id.

(quoting Stormans, 586 F.3d at 1126).

“Evaluating whether withholding judicial review

presents a hardship requires looking at whether the

challenged law ‘requires an immediate and significant

change in the plaintiffs’ conduct of their affairs with serious

penalties attached to noncompliance.’” Id. at 1070–71

(quoting Stormans, 586 F.3d at 1126).

Applying these standards, we conclude that Claim I is

not prudentially ripe as to Dr. Moynihan, Stockton, or CHD.

“[W]e do not decide ‘“constitutional questions in a

vacuum.”’” Thomas, 220 F.3d at 1141 (quoting American-

Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d

501, 511 (9th Cir. 1992)). Unlike Claims II, III, and IV,

Claim I involves hypothetical, future prosecutions, largely

against unnamed and unknown doctors. In this

circumstance, further factual development would not just be

helpful; it would be necessary. We do not know what these

hypothetical doctors are alleged to have said. Nor do we

know what punishments they face. These are strong

indicators that the claim is not ripe. See Thomas, 220 F.3d

at 1141 (concluding that a case “devoid of any specific

factual context” and involving no identifiable plaintiffs, was

unripe for review).

The same is true with respect to Dr. Moynihan. At this

juncture, no proceedings are pending against him, and it is

unclear what speech such proceedings would be based upon.

Again, further factual development would be needed for us

to pass on Dr. Moynihan’s Claim I.

40 STOCKTON V. BROWN

Nor is this the kind of case that presents only legal

questions. “[B]ringing a First Amendment challenge to a

law does not necessarily mean that the issues presented are

‘purely legal.’” Tingley, 47 F.4th at 1070 (quoting Thomas,

220 F.3d at 1142). For instance, in Thomas, First

Amendment claims centering around hypothetical future

tenants were found to depend on further factual

development. 220 F.3d at 1142; accord Tingley, 47 F.4th at

1070 (suggesting that “claims concerning future clients rest

upon hypothetical situations with hypothetical clients” and

would require further factual development). So too here.

The Plaintiffs insist that strict scrutiny is the proper standard

to apply. But we cannot apply that standard in the absence

of factual context, such as the content of the speech and the

nature of the regulation.

Likewise, by its nature, Claim I involves future

proceedings that have not yet concluded—or even begun.

Thus, this case does not involve “final” action by the

Commission. Tingley, 47 F.4th at 1070 (quoting Stormans,

586 F.3d at 1126). No action has occurred that “has the

‘status of law’” and no immediate compliance is required.

See id. (quoting Stormans, 586 F.3d at 1126). In sum, the

fitness-of-the-issues prong weighs strongly against this case

being considered prudentially ripe.

The hardship issue points the same way. This inquiry

“dovetails” with the constitutional ripeness inquiry

discussed above. See Thomas, 220 F.3d at 1142. For the

reasons given above, this case is not constitutionally ripe.

And even if Dr. Moynihan had credibly argued that his

speech was chilled, see Wolfson, 616 F.3d at 1060

(recognizing that self-censorship can give rise to the

requisite hardship), that would not change the reality that

further factual development is necessary to pass on Claim I.

STOCKTON V. BROWN 41

In sum, even if we were to conclude that it is

constitutionally ripe, we would still affirm the dismissal of

Claim I as asserted by Dr. Moynihan, Stockton, and CHD,

on the ground that it is not prudentially ripe.

CONCLUSION

The Plaintiffs raise First Amendment and due process

challenges to the Washington Medical Commission’s

investigation and prosecution of doctors who spread

COVID-19 misinformation. But we do not resolve those

questions today. Claims II, III, and IV of the First Amended

Complaint raise challenges to ongoing state proceedings, so

Younger abstention bars our consideration of those claims.

So is Claim I as asserted by Dr. Eggleston and Dr. Siler. As

for the remainder of Claim I, which challenges future

investigations and prosecutions on behalf of Dr. Moynihan,

Stockton, and CHD, that claim is neither constitutionally nor

prudentially ripe. As such, the district court did not err in

dismissing the First Amended Complaint.

AFFIRMED.

BRESS, Circuit Judge, concurring in part and concurring in

the judgment:

This case involves various claims brought by various

plaintiffs concerning the Washington Medical

Commission’s efforts to discipline doctors for disseminating

alleged misinformation related to COVID-19. Part of the

difficulty in this case is that the plaintiffs are not all similarly

situated, yet all plaintiffs are purporting to bring roughly the

same claims. The lack of clear delineation between the

42 STOCKTON V. BROWN

different plaintiffs and claims has complicated the decisional

process. Ultimately, I agree with the majority that the

plaintiffs’ claims cannot move forward, but I disagree in

some respects with the majority’s reasoning.

The Commission has initiated disciplinary proceedings

against Dr. Richard Eggleston and Dr. Thomas T. Siler for

professional misconduct based on their writings about

COVID-19. These proceedings are taking place before the

Commission, but an aggrieved doctor can seek review of an

adverse Commission decision in state court. Wash. Rev.

Code § 18.130.140. Dr. Eggleston and Dr. Siler are both

plaintiffs in this federal lawsuit. Dr. Daniel Moynihan is also

a plaintiff in this case. He fears discipline from the

Commission for expressing his views on COVID-19, but the

Commission has not initiated proceedings against him. The

two other named plaintiffs are non-profit organization

Children’s Health Defense (CHD) and former NBA

basketball player John Stockton, who hosts a podcast about

COVID-19-related issues.

The operative complaint alleges four claims. The first

three claims are brought on behalf of all plaintiffs, and the

final claim is brought on behalf of the three doctors only. In

Claim 1, plaintiffs seek a declaratory judgment that the

Commission’s future investigations and “prosecutions” of

doctors for spreading alleged misinformation about COVID-

19 would violate the First Amendment. In Claim 2, plaintiffs

seek a declaratory judgment that the Commission’s current

investigations and “prosecutions” of doctors for spreading

alleged misinformation about COVID-19 violate the First

Amendment. In Claim 3, plaintiffs claim that Wash. Rev.

Code § 18.130.180(1) and (13), which allows the

Commission to punish “moral turpitude, dishonesty, or

corruption” of a person’s profession (including the medical

STOCKTON V. BROWN 43

profession), as well as fraud and misrepresentation in the

conduct of that profession, is overbroad and facially

unconstitutional under the First Amendment. Finally, in

Claim 4, the doctor plaintiffs allege that the Commission’s

procedures for disciplining doctors for professional

misconduct violate due process.

I agree with majority’s resolution of this case in some,

but not all, respects, as follows.

1. Dr. Eggleston and Dr. Siler

The majority holds that Younger abstention, see Younger

v. Harris, 401 U.S. 37 (1971), precludes Drs. Eggleston and

Siler from pursuing Claims 1–4 in federal court, and that no

exception to Younger applies. I agree. It is obvious why

Claim 2—seeking to enjoin ongoing state proceedings,

which would include Dr. Eggleston’s and Siler’s own

ongoing state disciplinary proceedings—contravenes

Younger. Dr. Eggleston’s and Dr. Siler’s Claim 1

contravenes Younger because in seeking to enjoin future

disciplinary proceedings against doctors, these plaintiffs

effectively seek a court ruling that would enjoin their own

ongoing disciplinary proceedings. See 17B Wright & Miller,

Federal Practice and Procedure § 4252 (3d ed. 2025). And

as the majority explains, as to Drs. Eggleston and Siler,

Claims 3 and 4 also run afoul of Younger because resolving

these claims “would have the practical effect of enjoining the

state proceedings” involving these same plaintiffs. Yelp Inc.

v. Paxton, 137 F.4th 944, 951 (9th Cir. 2025) (quoting

ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754

F.3d 754, 759 (9th Cir. 2014)).

44 STOCKTON V. BROWN

2. Dr. Moynihan

The majority concludes that Dr. Moynihan’s Claim 1

fails because he insufficiently preserved that claim on

appeal. I agree that is a sufficient basis for affirming on this

claim, and that Dr. Moynihan’s pre-enforcement allegations

are otherwise inadequately advanced. A more particularized

pre-enforcement challenge may lie in this area, but the one

before us is not sufficiently presented and is complicated by

the plaintiffs’ presentation of the issues, which involve

overlapping claims by various plaintiffs.

The majority further holds that Younger bars Dr.

Moynihan’s Claims 2–4. This is only partially correct.

Younger does bar Dr. Moynihan’s Claim 2, which purports

to seek a declaratory judgment that the Commission’s

current investigations and prosecutions of doctors for

spreading alleged misinformation about COVID-19 violate

the First Amendment. Although Dr. Moynihan is not the

subject of a pending state court proceeding, he would seek

to enjoin ongoing Commission proceedings brought against

other doctors (like Drs. Eggleston and Siler). That is not

proper under Younger. See Hicks v. Miranda, 422 U.S. 332,

349 (1975) (holding that “the same comity considerations

apply” under Younger “where the interference [with state

proceedings] is sought by” people who are “not parties to the

state case”) (quoting Allee v. Medrano, 416 U.S. 802, 831

(1974) (Burger, C.J., concurring)) (brackets omitted).

But I do not think that Dr. Moynihan’s Claims 3 and 4

are barred by Younger. As I noted above, Claim 3 seeks to

declare facially unconstitutional provisions of Washington

law allowing the Commission to punish moral turpitude,

dishonesty, corruption, and fraud relating the practice of

one’s profession. Wash. Rev. Code § 18.130.180(1) and

STOCKTON V. BROWN 45

(13). Claim 4 seeks to declare invalid certain Commission

practices at the administrative level. When brought by a

plaintiff who is not himself subject to state court

proceedings, I do not think these kinds of challenges run

afoul of Younger. We have explained that “when the federal

plaintiff is not a party to the state court action, a mere

commonality of interest with a party to the state litigation is

not sufficient to justify abstention.” Green v. City of Tucson,

255 F.3d 1086, 1100 (9th Cir. 2001). This is true even when

the parties are “represented by common counsel” and have

identical challenges to state law. Doran v. Salem Inn, Inc.,

422 U.S. 922, 928–29 (1975). In the case of claims brought

by a plaintiff who is not subject to ongoing state

proceedings, we have never held that the possible impact of

a successful facial challenge on other extant state

proceedings is sufficient to justify Younger abstention. Nor

do I see what the majority describes as “unique

circumstances” counseling a different approach in this case,

based on the way plaintiffs have framed Dr. Moynihan’s

allegations.

Because Dr. Moynihan’s Claims 3 and 4 are not barred

by Younger, I would resolve them on the merits. The

majority does not address the merits and so I will not address

the issue in any detail, except to note that in my view, the

facial constitutional challenges in Claims 3 and 4 would fail

as a matter of law.1

1 I would not resolve any of the claims based on prudential ripeness, a

discretionary doctrine that need not be invoked when there are other

valid bases for dismissal. See Bishop Paiute Tribe v. Inyo Cnty., 863

F.3d 1144, 1154 (9th Cir. 2017). It is not clear the majority needs to

reach prudential ripeness either, given that it resolves the various claims

on multiple other grounds.

46 STOCKTON V. BROWN

3. CHD and Stockton

These plaintiffs’ claims are based on a First Amendment

right to listen. I agree with the majority that as to Claim 1,

these plaintiffs lack standing because their claims are too

hypothetical, given that they concern unidentified doctors

and unidentified speech. Claim 2, which seeks to use a First

Amendment right to listen to enjoin ongoing state

disciplinary proceedings, fails under Younger, in the same

way that Dr. Moynihan’s Claim 2 fails. This makes it

unnecessary to evaluate whether the relationships between

Stockton and Dr. Eggleston, and CHD and Dr. Moynihan,

are sufficient to create standing under Murthy v. Missouri,

603 U.S. 43, 75 (2024). And as to Claim 3, the facial

challenge to Wash. Rev. Code § 18.130.180(1) and (13),

CHD and Stockton once again lack standing.

In sum, I concur in those portions of the majority opinion

consistent with my above analysis, and I otherwise concur in

the judgment.