[00:00:02] Speaker 03: Good morning. [00:00:03] Speaker 01: Good morning. [00:00:04] Speaker 01: Thank you. [00:00:04] Speaker 01: May please the court. [00:00:05] Speaker 01: Joshua Thompson on behalf of plaintiffs Azadeh katibi and do no harm This case Azadeh katibi creates CMEs. [00:00:14] Speaker 01: She's a renowned ophthalmologist She has been for years She researches the CMEs [00:00:21] Speaker 01: She creates the content. [00:00:24] Speaker 01: She delivers them. [00:00:26] Speaker 01: At no time during the CME creation is the State of California involved. [00:00:30] Speaker 01: At no time is the Medical Board of California involved. [00:00:34] Speaker 01: This is Dr. Hold on. [00:00:36] Speaker 03: Just one minute, yeah. [00:00:39] Speaker 03: So her courses comply with all of the CME requirements? [00:00:44] Speaker 01: The courses that she has submitted, that she has performed, complied with all the CME requirements. [00:00:51] Speaker 01: Of course, she has not complied with the CME requirement that we are challenging the implicit bias mandate. [00:00:57] Speaker 01: She has chosen not to be compelled to speak contrary to her views. [00:01:02] Speaker 01: But up until that point, when she was giving CMEs, of course, yes, they all complied with all of the CME requirements. [00:01:08] Speaker 03: And she can put together courses and teach in whatever manner she likes. [00:01:13] Speaker 03: It's really the accreditation, the credit that's the issue here. [00:01:16] Speaker 01: It's not the credit that's the issue. [00:01:20] Speaker 01: The state of California offshoots the accreditation to private organizations, be it the American Medical Association or be it University, Stanford University. [00:01:31] Speaker 01: What is that issue? [00:01:32] Speaker 03: My question is, is there anything that prevents her from creating her own classes and teaching them? [00:01:37] Speaker 01: I think your honor's question goes to whether this is, in fact, compelled speech, not whether, in fact, this is government speech. [00:01:43] Speaker 01: No. [00:01:44] Speaker 01: Of course, she can go on the street corner and start talking about what she is an expert in. [00:01:49] Speaker 01: She can give that speech. [00:01:51] Speaker 01: She is not prohibited from speaking in that regard. [00:01:54] Speaker 01: But that doesn't make it government speech. [00:01:56] Speaker 00: I think the one question really goes to, she can still prepare and teach [00:02:04] Speaker 00: a continuing medical education classes, if anybody will come when it's not sanctioned by the state board, right? [00:02:13] Speaker 01: She can still go ahead and do that. [00:02:17] Speaker 01: She can stand up and give a continuing education course. [00:02:20] Speaker 01: It could even be credited by an American Medical Association. [00:02:24] Speaker 01: The only exertion that the state of California puts on is, [00:02:29] Speaker 01: if they in fact choose to audit it later and it doesn't include this implicit bias component, it could arguably not receive credit at that point. [00:02:36] Speaker 04: But this is wrong. [00:02:36] Speaker 04: Well, it's not arguably though, right? [00:02:38] Speaker 04: It's not arguably. [00:02:39] Speaker 04: If it's not including that, it would not get credit, correct? [00:02:43] Speaker 01: That's right. [00:02:44] Speaker 04: OK. [00:02:45] Speaker 04: So let's stop there for a second. [00:02:47] Speaker 04: Then if the state of California then is able to control what is and or is not able to get credit, then isn't that government speech? [00:02:57] Speaker 01: Of course not. [00:02:58] Speaker 01: The speech at issue is how to perform ocular tumor surgery, how to give appendectomies, or how to perform appendectomies. [00:03:09] Speaker 01: That is the speech. [00:03:10] Speaker 01: Whether it is credit or not has nothing to do with the speech that is provided. [00:03:14] Speaker 01: You may be saying it's not compelled because, as Judge Winn was noting, she can still talk about these things, and maybe it's not compelled, and those issues will certainly be raised down below, whether this is compelled speech, whether it is viewpoint neutral, whether it is content-based, whether it meets the tailoring that is required. [00:03:32] Speaker 03: But none of that- It's the analysis, because on the one hand, she can create whatever classes she wants, she can teach whatever classes she wants, wherever she wants. [00:03:40] Speaker 03: But it's only when she is seeking [00:03:43] Speaker 03: credit that she has to comply with all of these requirements that the state has set forth. [00:03:49] Speaker 03: So it's relevant to whether that's government speech in the context of speaking and complying with the statutory requirements. [00:03:58] Speaker 01: that what this may go towards, what this control, it may go to the extent of government control over the speech, the third factor in TAM in Sunim, in Walker, whether the government exerts enough control over the speech to transform, what is, I think everybody would concede, up until the point the government gives its stamp of approval, private speech, she created it, she spoke it, does the stamp of approval that gives it credit transform it into [00:04:27] Speaker 01: what is purely private speech into public speech. [00:04:30] Speaker 01: And I don't think Tam or Walker, Tam, which of course dealt with trademarks, extensive government control over the regulation of trademarks, there was a stamp of approval, there was editing going on. [00:04:44] Speaker 01: The Supreme Court said, no, that's not enough control. [00:04:46] Speaker 01: to transform what is purely private speech into government speech. [00:04:49] Speaker 01: What was different in Walker, Walker, where the Supreme Court did find there was significant control, was that there was editorial control. [00:04:57] Speaker 01: The Department of Motor Vehicles of Texas could go in and say, no, we don't want you to say this. [00:05:02] Speaker 01: We want you to say that. [00:05:04] Speaker 01: We're not going to approve this. [00:05:05] Speaker 01: We're going to approve that. [00:05:06] Speaker 01: None of that editorial control is here. [00:05:08] Speaker 01: California doesn't even know what she's saying. [00:05:11] Speaker 01: They may not ever edit it. [00:05:12] Speaker 01: They may not ever audit it. [00:05:13] Speaker 04: I'm sorry. [00:05:16] Speaker 04: when and if they do, they can control it though. [00:05:19] Speaker 04: Isn't that the point? [00:05:21] Speaker 01: They cannot control the speech. [00:05:22] Speaker 01: They can give it credit. [00:05:24] Speaker 01: But that doesn't change the speech. [00:05:25] Speaker 01: The speech would still be there. [00:05:26] Speaker 01: The speech happened. [00:05:28] Speaker 01: Her speech existed. [00:05:29] Speaker 01: It's out there in the world. [00:05:31] Speaker 01: Whether it gets credit or not. [00:05:33] Speaker 03: Every single requirement that would lead to accreditation is compelled speech? [00:05:38] Speaker 01: Of course not. [00:05:39] Speaker 01: There are certain regulatory requirements that are not speech. [00:05:42] Speaker 03: The requirement is cultural competency. [00:05:46] Speaker 03: She has to teach about cultural competency. [00:05:48] Speaker 03: Is that compelled speech? [00:05:49] Speaker 01: That may be compelled, but it's not being challenged here. [00:05:52] Speaker 01: It's certainly not government speech. [00:05:55] Speaker 01: It would still be her speech that she created. [00:05:57] Speaker 01: It may not be compelled, and Your Honor, I want to reiterate that. [00:06:00] Speaker 01: We're not here on whether this is compelled speech. [00:06:02] Speaker 01: All of those issues, those really thorny issues of whether this is compelled speech, whether this is viewpoint-based, whether it is content-based, whether she's compelled to say these things, the very bare bones of what a compelled speech claims, none of that is before this Court today. [00:06:15] Speaker 01: The only thing that is before this Court is whether her words that she created, she came up with, she delivered, she imagined, she researched, whether those are government speech, and of course they're not. [00:06:26] Speaker 01: We have all attended CLEs. [00:06:29] Speaker 01: Maybe your honors have given CLEs. [00:06:30] Speaker 01: Those are things that you have thought up, that I, as a lawyer, I have given CLEs. [00:06:35] Speaker 01: I certainly don't think the California State Bar thinks when I, as a Pacific Legal Foundation attorney, is speaking at a CLE, that I'm speaking on behalf of the state, that that is government speech. [00:06:45] Speaker 01: It is not. [00:06:46] Speaker 01: It is purely private speech that we create as creators, as speakers, and the fact that it gets credit, or doesn't get credit, doesn't transform into government, that is precisely what Tam talked about when it talked about a stamp of approval after the fact. [00:06:59] Speaker 01: If a stamp of approval is sufficient to transform what is purely private speech into government speech, that has drastic consequences. [00:07:06] Speaker 04: I'm sorry, but Walker, Schertfeld, Matal, all of these cases seem to suggest to us that it's the level of control and what you're saying, and I'm trying to make sure I understand your argument. [00:07:17] Speaker 04: Your argument is that [00:07:19] Speaker 04: that all we're talking about here is that they're giving credit versus they're not telling the doctor what to say specifically and therefore it's not government speech. [00:07:30] Speaker 04: But if they can control what she says in line of giving the specific credit, then aren't they in fact, isn't that exactly government speech? [00:07:45] Speaker 01: Your Honor, I don't understand the line you could draw from TAM. [00:07:48] Speaker 01: The government in TAM was saying, we can say yes or no to this trademark. [00:07:53] Speaker 01: The government in Shurtleff was saying, we can say yes or no to this flag, whether it gets raised. [00:07:59] Speaker 01: That is the seal of approval. [00:08:00] Speaker 01: That is what is not sufficient. [00:08:03] Speaker 01: What has to be sufficient for control is not after the fact stamps of approval. [00:08:07] Speaker 01: The Supreme Court is crystal clear on that fact. [00:08:10] Speaker 01: What they mean by extent of control, the third Tam Factor, the third Walker Factor, is editorial control. [00:08:15] Speaker 01: Are you exerting editorial control over the content of the message? [00:08:19] Speaker 01: They repeat that over and over. [00:08:20] Speaker 01: It's the message that you have to show control over. [00:08:23] Speaker 01: And at no time here has California exerted any control over the message. [00:08:27] Speaker 01: At most, they are aware, they're not even aware of the message sometimes. [00:08:31] Speaker 01: You could give CMEs, and in fact, the allegations in the complaint, our Dr. Katibi's CMEs have never been audited. [00:08:37] Speaker 01: That means that California has no idea what is being said. [00:08:40] Speaker 01: How can the government know? [00:08:42] Speaker 03: How can it be the- So she can't say just whatever. [00:08:45] Speaker 03: She has to say, for example, like she has to teach something about opioid addiction, geriatric care, cultural competence, implicit bias, and so [00:08:56] Speaker 03: The statute lays out quite a few topics that it has to get covered before a credit is given, right? [00:09:04] Speaker 01: That's not right, Your Honor. [00:09:05] Speaker 01: She does not have to speak about opiate care. [00:09:07] Speaker 01: She does not have to speak about geriatric care. [00:09:09] Speaker 01: Those are standalone courses that she can choose or not choose whether to teach or not. [00:09:14] Speaker 01: She is not being compelled to speak those things. [00:09:17] Speaker 01: That is different. [00:09:17] Speaker 01: When she gives a CME on, say, ocular tumors, she is being compelled to include in that discussion. [00:09:26] Speaker 01: Implicit bias. [00:09:27] Speaker 01: That is the compulsion. [00:09:29] Speaker 01: That is changing. [00:09:31] Speaker 03: Can she include implicit bias, but then say, I don't agree with any of it? [00:09:36] Speaker 03: I don't think that's even a thing. [00:09:37] Speaker 01: I think what your honor is asking is... Is that preventing her from saying that? [00:09:41] Speaker 01: Nothing is preventing her from saying that, which just underscores why this isn't government speech. [00:09:45] Speaker 01: Now, maybe it's not compelled speech, but it isn't... If she can say that, then how could it be government speech? [00:09:51] Speaker 01: If you can get up there and say, I don't agree with any of this. [00:09:53] Speaker 01: This is all nonsense. [00:09:54] Speaker 01: That's the government speech and that's what the state of California thinks is being said? [00:09:58] Speaker 01: I don't think so. [00:09:59] Speaker 01: What is government speech is when the government is speaking. [00:10:01] Speaker 01: That's what the government speech doctrine exists to do. [00:10:04] Speaker 01: It's to allow the government to speak when it has something to say. [00:10:08] Speaker 01: The government isn't co-opting the things that doctors say 3,000 or so CMEs that are available for credit by the American Medical Association. [00:10:18] Speaker 03: That's why we're asking a lot of questions about the extent of the government control, because we're trying to figure out, even though she's a private individual, whether that's enough to constitute government speech. [00:10:30] Speaker 01: I understand why you're asking the extent of the government control, Your Honor. [00:10:33] Speaker 01: What I'm trying to explain is the extent of the control is non-existent over the message that she's delivering. [00:10:39] Speaker 01: It's after the fact regulatory control that is run-of-the-mill regulation, but nothing. [00:10:44] Speaker 01: I don't even think California would get up here, maybe I'm wrong, and they will say that when doctors are talking about things that the state of California knows nothing about, that that is all of a sudden government speech. [00:10:54] Speaker 04: Do you agree that some of the other factors, and I'm thinking right now of sort of the history of expression, that this is something where there's been a historical control and regulation by the government in terms of licensing. [00:11:12] Speaker 04: Don't you think that that's a factor that weighs against your position? [00:11:16] Speaker 01: I don't think so, Your Honor. [00:11:17] Speaker 01: I think the history of government expression here weighs strongly in our favor, and I would caution the Court not to view it as history of government control over the message. [00:11:26] Speaker 01: That's conflating the first factor and the second and third factor. [00:11:29] Speaker 04: Government regulation over medical licenses is what I mean. [00:11:33] Speaker 01: Yeah, the standard, the first factor is the history of the government control over the message, the history of the government using that forum as a message body, history of the government in the message. [00:11:43] Speaker 01: There is no history of the government speaking through CMEs. [00:11:47] Speaker 01: There is certainly a history of the government regulating continuing medical education courses, much like there is a history of the government regulating patents. [00:11:55] Speaker 01: There's a history of the government regulating license. [00:11:58] Speaker 01: There's certainly a history of the government putting up flags on flagpoles. [00:12:02] Speaker 01: What's different about those cases is that in our case, there is no history of the government delivering a message through CMEs. [00:12:11] Speaker 03: Well, I'm looking at 2190.1 that sets forth numerous components, numerous standards that educational activities must meet. [00:12:24] Speaker 03: That's control, right? [00:12:26] Speaker 03: We look to the standards set by the state in determining whether the government has exerted control. [00:12:32] Speaker 01: That is, with respect, Your Honor, that are the guardrails in which the government sets the speech can happen. [00:12:37] Speaker 01: It's essentially the forum. [00:12:39] Speaker 01: If you comply with these things, you can say whatever you want. [00:12:42] Speaker 01: But it's still the private speaker who is speaking. [00:12:44] Speaker 03: It's certainly provided... So you can say whatever you want so long as it relates to these requirements that are set, the standards that are set within the statute. [00:12:53] Speaker 01: Right. [00:12:53] Speaker 01: And you can imagine 10,000 different things that you can say that fall within those standards. [00:12:57] Speaker 01: Those 10,000 different things may be contradictory. [00:13:00] Speaker 01: They may go against each other. [00:13:01] Speaker 03: They may be... And what's different about implicit bias? [00:13:05] Speaker 03: She can say 10,000 different things about implicit bias. [00:13:07] Speaker 03: If that's the standard, she can say whatever she wants within those guidelines under your argument. [00:13:13] Speaker 01: Again your honor that would be a great defense on the compelled speech claim, but that doesn't make it government speech I don't understand how the fact that 10,000 contradictory different things can be said Make it government speech it may be that it's not compelled it may be that the government has a Compelling interest in it it may be that it's not view pointer or or content-based But none of those issues are before the court today the only issue is whether it is government speech and if you're saying your honor that [00:13:42] Speaker 01: The speaker, the physician, can give contradictory views, and both of those are the government speech, and the government speech doctrine has lost all meaning. [00:13:54] Speaker 01: The government speech doctrine exists to let the government express its opinion, its message. [00:14:00] Speaker 01: Nothing in the fact that it can't. [00:14:01] Speaker 04: Haven't they done this through their regulation that the medical board is putting into place? [00:14:10] Speaker 01: You're right. [00:14:11] Speaker 01: It is true that the medical or the state of California legislature has a view that implicit bias ought to be taught. [00:14:16] Speaker 01: But that doesn't make CME courses government speech. [00:14:21] Speaker 01: It's similar to NIFLA. [00:14:23] Speaker 01: NIFLA is the legislature says to all pregnancy centers, you have to slap on your wall. [00:14:28] Speaker 04: I'm sorry. [00:14:29] Speaker 04: You're talking about something else. [00:14:29] Speaker 04: I asked you a different question. [00:14:31] Speaker 04: Can you answer my question, though? [00:14:32] Speaker 01: Could you repeat your question? [00:14:33] Speaker 01: I'm sorry. [00:14:35] Speaker 04: So the legislature made this particular regulation, made this particular requirement. [00:14:40] Speaker 04: They've delegated that to the medical board, state medical board. [00:14:44] Speaker 04: Why isn't it the case that that is a regulation that the government has laid upon this medical profession and in fact a requirement and in fact government speech? [00:14:59] Speaker 01: The regulation itself, maybe the text of the statute is certainly could be classified as government speech. [00:15:03] Speaker 01: I don't know if it's speech, but I would be willing to allow for that to be speech. [00:15:09] Speaker 01: What is not speech is the CMEs that Dr. Katibi gives. [00:15:13] Speaker 01: And now what you have is you have something that arguably is government speech, the implicit bias mandate. [00:15:18] Speaker 01: being injected into what is private speech. [00:15:22] Speaker 01: Now you have a quintessential prima facie case of compelled speech. [00:15:26] Speaker 01: You have a government speech injected into private speech. [00:15:28] Speaker 01: That's what compelled speech is. [00:15:30] Speaker 01: That is what the doctrine is. [00:15:33] Speaker 01: And let me just explain. [00:15:34] Speaker 01: I do see I'm running into my rebuttal time. [00:15:36] Speaker 01: I will reserve the remainder of my time. [00:15:38] Speaker 03: Thank you. [00:15:56] Speaker 02: Good morning, your honors. [00:15:57] Speaker 02: May it please the court, Kristin Luska, on behalf of the defendants in this matter. [00:16:01] Speaker 02: I think I'd like to start with plaintiffs in this case are clearly trying to frame what's happening here as the government giving a stamp of approval on private speech, trying to bring this within the scope of MATAL. [00:16:13] Speaker 02: But I think that it's important to take a step back and look at this entire regulatory scheme. [00:16:17] Speaker 02: And first and foremost, it's important to remember that CME courses exist for the purpose of fulfilling a CME requirement. [00:16:24] Speaker 02: We're not talking about any training, any class out there. [00:16:27] Speaker 02: We're talking about specifically courses doctors take to fulfill a regulatory requirement. [00:16:32] Speaker 04: Well, he's saying, hey, she's never been audited. [00:16:36] Speaker 04: She can teach, and she's not going to teach this particular thing. [00:16:41] Speaker 04: Why isn't that just purely private speech? [00:16:44] Speaker 02: So I think you see, you know, if you're applying the factors from Sheryl, if I do think that the level of control the government has to exercise, and it's the existence, not so much the exercise itself, of control that's relevant, you both see this on the front end and throughout the process. [00:16:59] Speaker 02: You know, the law specifies that CME courses must be educational activities that serve to maintain, develop, or increase the knowledge, skills, and professional performance of doctors. [00:17:09] Speaker 03: Right, I mean, I think Council is conceding. [00:17:10] Speaker 03: We talked about the provision 2198 point. [00:17:13] Speaker 03: Yes. [00:17:14] Speaker 03: one or two and I forget which. [00:17:16] Speaker 03: It does set forth certain requirements and as I hear his argument he's saying that's not enough to turn private speech into government speech because it's just these I guess guidelines and within those guidelines she can say whatever she wants. [00:17:34] Speaker 02: I think that's the front end and then on the back end you do still have the fact that the board retains authority to audit these classes. [00:17:40] Speaker 02: that comes through in two ways. [00:17:41] Speaker 02: There is in the regulations an annual audit that occur, a random audit, but the board of course can go and audit any course in response to concerns or investigations at any time. [00:17:52] Speaker 02: And if the board determines that the course does not meet the requirements, [00:17:55] Speaker 02: for credit, the board can take away the credit. [00:17:57] Speaker 02: And I think that that is exactly the kind of control, the existence of control, the government authority that you see, especially in like the controlled subsidy cases, that are sufficient to establish government speech. [00:18:07] Speaker 02: I think that what's going on here is really a situation where the government, you know, no one disputes that if the government, if the board itself taught these CME classes, [00:18:17] Speaker 02: That's government speech. [00:18:18] Speaker 02: No one disputes that if the board directly hired private instructors, that would be government speech. [00:18:23] Speaker 02: I don't think plaintiffs would dispute. [00:18:25] Speaker 02: This is essentially like in the controlled subsidy cases, where the government has gone to private entities and said, this is the message we want delivered, deliver our message for us if you want. [00:18:34] Speaker 02: So plaintiffs are making the choice to teach these classes for credit. [00:18:37] Speaker 02: They exist for purposes of this regulatory requirement. [00:18:40] Speaker 03: Is there at the end of the course some kind of certification form that the attending student doctors fill out? [00:18:48] Speaker 02: I am not sure on the nuances of that, Your Honor. [00:18:51] Speaker 02: I believe that there are required to be evaluations as part of the course. [00:18:57] Speaker 02: But I'm not sure if there's some sort of certification. [00:18:59] Speaker 02: I assume they have to submit their requirements the way lawyers have to certify that they've completed their [00:19:04] Speaker 02: CLE requirements as well. [00:19:06] Speaker 04: What if at the end of the course, last minute of the course, Dr. Katibi says, well, I am required to talk about this particular subject, which I think is phony and ridiculous and crazy, but here you go. [00:19:25] Speaker 04: I'm going to say these 30 seconds about this particular topic. [00:19:31] Speaker 04: Would that be OK? [00:19:33] Speaker 04: And would that be government speech? [00:19:36] Speaker 02: So I'm not sure if the 30 seconds is sufficient to meet the statutory requirement to cover all the elements. [00:19:42] Speaker 02: I'll caveat my response with that aspect. [00:19:46] Speaker 02: It seems that the board is allowing a professional, like the plaintiff, to say that they disagree with the implicit bias. [00:19:55] Speaker 02: They don't think that it needs to be taught, but they're teaching it anyway. [00:19:58] Speaker 02: We would say that that just reinforces that the implicit bias requirement is government speech. [00:20:02] Speaker 02: First, the board is allowing this to happen. [00:20:04] Speaker 02: The board could say, actually, no. [00:20:06] Speaker 02: If you do this, it does not meet the requirement, and your courses will not receive credit. [00:20:10] Speaker 02: The board can shut that down, which reinforces the control that exists over the message, which reinforces that it's government speech. [00:20:18] Speaker 02: And second, the fact that she can distinguish it also reinforces the way in which its government speaks. [00:20:22] Speaker 02: She can make clear that she's not the one saying anything about implicit bias. [00:20:26] Speaker 02: She's including it because she has to. [00:20:28] Speaker 02: The government is saying that this is information that doctors need to know in order to perform their job competently. [00:20:33] Speaker 02: And plaintiff can express her disagreement maybe in the CME courses, but at the very least in whatever other venue she wishes, including teaching classes that are not available for CME. [00:20:43] Speaker 03: So let me clarify what you're saying. [00:20:44] Speaker 03: Can she express her own personal disagreement with implicit bias, cultural competency or whatever else within the CME accredited? [00:20:55] Speaker 02: So I'm going to say generally yes. [00:20:57] Speaker 02: I think that there is a question as to how far she could go. [00:20:59] Speaker 02: At some point she may say things that undermine the point of including the requirement. [00:21:03] Speaker 02: In which case, the board may say that's too far. [00:21:05] Speaker 02: But at the very least, she can probably say, at least the board is allowing this for now. [00:21:09] Speaker 02: Of course, they can shut this down if they change their mind. [00:21:12] Speaker 02: But she can at least say, I don't agree with this, but I have to teach it. [00:21:15] Speaker 02: And here's the content I have to teach. [00:21:16] Speaker 02: And I do want to speak to this question about, does that make it private or public? [00:21:22] Speaker 02: And I think, look, we can drill down into each specific line set. [00:21:26] Speaker 02: Is this government? [00:21:27] Speaker 02: Is this public? [00:21:28] Speaker 02: Is this private? [00:21:28] Speaker 02: This is about the requirement to teach implicit bias. [00:21:32] Speaker 02: And that requirement, [00:21:33] Speaker 02: is self-government speech, but it has to be included, what is said about it. [00:21:37] Speaker 02: The regulation specifies how it should be taught that implicit bias needs to include one or both of two different things, examples or strategies generally. [00:21:46] Speaker 02: I don't feel like I need to read all the language. [00:21:48] Speaker 02: You have the statutes in front of you. [00:21:50] Speaker 02: So I think at the very least, that part is government speech, the inclusion requirement, you know, even if we don't want to quibble over specific lines here or there. [00:21:59] Speaker 04: When I asked your friend on the other side to talk about the history of the expression itself, he said, well, we have to look at the expression. [00:22:08] Speaker 04: We don't look at the history of regulating the medical licensure. [00:22:11] Speaker 04: How should we be looking at that? [00:22:13] Speaker 02: So I believe that the language from the cases is that you look at the historical context of the expression. [00:22:17] Speaker 02: I think that the general overall context of the fact that we're dealing with a very regulated field that has long been regulated by the government is helpful and informative. [00:22:27] Speaker 02: I think it's also salient that, again, CME courses exist because the law requires doctors to take CME courses. [00:22:34] Speaker 02: So if we're looking just at CME courses, that history itself, they've always existed because the government says, we think doctors need to take [00:22:42] Speaker 02: further information, they need to know certain subjects, such as requirements to take specific classes. [00:22:47] Speaker 02: like classes on geriatric care for doctors who treat a lot of geriatric patients, classes on opioid pain, on pain management or treating terminally ill patients. [00:22:58] Speaker 02: The state has from the beginning said you need to take certain types of courses for the purposes of being a good doctor and we think you need to know this information. [00:23:06] Speaker 02: So even if you just look at the historical context of the expression of CME classes distinct from the overall field, though we think that [00:23:14] Speaker 02: The overall history shapes the understanding of this and should be considered as well. [00:23:18] Speaker 02: That history reinforces that CME courses are government speech. [00:23:27] Speaker 02: If the court has no further questions, I'm happy to yield the rest of my time. [00:23:31] Speaker 03: Actually, you've got the extra time, so I'm interested to hear your argument on that second. [00:23:36] Speaker 03: Oh, the unconditioned of whether there's a perception. [00:23:42] Speaker 03: Oh, yes, the perception from the state. [00:23:44] Speaker 02: Yes. [00:23:45] Speaker 02: I mean, I think that if you look to a doctor, doctors understand when they take CME courses that they're taking a course to get their credit for CME. [00:23:52] Speaker 02: That's why they're there. [00:23:54] Speaker 02: So they would understand that the course complies with the requirements by the government. [00:23:57] Speaker 02: It includes the material that needs to be included. [00:23:59] Speaker 02: And they would understand that the aspects shaped by the government are government speech. [00:24:03] Speaker 03: I don't know if they would automatically understand, despite maybe being years in practice attending CMEs regularly, [00:24:11] Speaker 03: that they would perceive that the content is really controlled by the state or dictated by the state. [00:24:17] Speaker 03: Which is why I'm asking if there's some sort of certification. [00:24:19] Speaker 03: There are evaluations. [00:24:20] Speaker 03: I just don't know if the evaluations have to do with the usefulness of the material. [00:24:25] Speaker 03: Because when they show up, it's all taught by other doctors, private individuals. [00:24:30] Speaker 03: You wouldn't necessarily assume that the government has any control over that content. [00:24:35] Speaker 02: They would certainly know that the course they've walked into is for CME credit, that it's available for credit, and that they will obtain credit for it. [00:24:40] Speaker 02: So they would have that context and understanding of [00:24:43] Speaker 02: This is an event for which I can obtain CMU credit ergo it meets the requirements. [00:24:48] Speaker 02: I think you know. [00:24:49] Speaker 02: Even though if we kind of step back here short life is very clear that this is a holistic test this isn't a factor by factor case by case. [00:24:58] Speaker 02: And we think that doctors understand that what is taught in these courses complies with what the state requires. [00:25:05] Speaker 02: And to some extent, even things, for instance, look, under plaintiff's theory, doctors can say whatever they want. [00:25:11] Speaker 02: But obviously, if a doctor were to say something like, any time a patient has eye pain, you just take out the eyeball. [00:25:17] Speaker 02: Of course the board can shut that down and doctors understand that no one's going to walk into a class and have an instructor just teach them such blatantly problematic things like take out eyeballs anytime it hurts or lobotomize all mental health patients or even something maybe closer to what's going on here like people of color lie about how much pain they're in, don't trust them. [00:25:38] Speaker 02: If someone said one of those things, of course the board would shut that course down. [00:25:42] Speaker 02: audit it, get rid of it, no credit for those courses. [00:25:45] Speaker 02: And the board needs to be able to control that. [00:25:47] Speaker 02: So I do think there's this background understanding that they're not going to be taught things outside the standard of care. [00:25:51] Speaker 02: They're not going to be taught things that are deeply problematic because these are being regulated for credit. [00:25:56] Speaker 02: But I do want to step back again and say this is a holistic inquiry, not driven by rote application of rigid facts. [00:26:02] Speaker 02: That's the language from Shurtleff. [00:26:03] Speaker 02: And so even if this factor might be ambivalent, kind of cut both ways, I do think the first and third factors are so strong here [00:26:10] Speaker 02: that supportive finding on government speech, even if the second factor might lead in plaintiff's way, which of course we disagree with. [00:26:19] Speaker 02: There are no other questions. [00:26:20] Speaker 02: I think I've said all I wanted to say. [00:26:21] Speaker 02: Thank you. [00:26:24] Speaker 02: We would request that the court affirm the decision below. [00:26:35] Speaker 01: Thank you, Your Honors. [00:26:36] Speaker 01: A few responses to my friend's argument. [00:26:40] Speaker 01: I heard her say that generally, yes, she could go up there and say, I don't buy implicit bias. [00:26:47] Speaker 01: This is bunk and state which is still credited. [00:26:50] Speaker 01: Now, if we're still in the realm of thinking that's government speech, I don't know what the government speech doctrine means anymore. [00:26:55] Speaker 01: My understanding of the government speech doctrine is that it is the government speaking. [00:26:59] Speaker 01: If the state of California thought that this message was something that all doctors... Well, that's a clear case, right? [00:27:04] Speaker 03: If you've got an official standing out there speaking, okay, I don't think we'd be here debating it. [00:27:08] Speaker 03: Then the question is when the government is speaking through private individuals, you've got to have a way of assessing whether that falls within the government's speech realm or whether that's still private speech. [00:27:22] Speaker 03: And that's why we're talking about the level of the state's control [00:27:27] Speaker 03: over what has to be taught in these classes. [00:27:29] Speaker 03: And I asked you this question, but I want to make sure that I understand your answer because there is a statutory scheme here that does dictate quite extensively various standards or requirements that Dr. Kabeti has to teach in order for the class to be accredited. [00:27:52] Speaker 03: And what is your answer to that question of control? [00:27:56] Speaker 03: Are you saying that all of those issues are compelled speech, that she is being forced to carry those messages, but you're not challenging it? [00:28:06] Speaker 03: Or are you saying that that's not sufficient to constitute any sort of government control because they're too broad? [00:28:14] Speaker 01: Thank you for the question, Your Honor. [00:28:16] Speaker 01: Much like there is building codes that doesn't render the architecture plan's government speech, they have to work within the realm of the building codes in order to create architecture. [00:28:28] Speaker 01: You have to work within the parameters of the medical board when you're creating your own CME. [00:28:36] Speaker 01: So I do not think that it is government speech. [00:28:39] Speaker 03: So the parameters, though, do go to content. [00:28:42] Speaker 03: But you're saying it not enough. [00:28:44] Speaker 01: The parameter sets some boundaries upon which content can be spoken. [00:28:48] Speaker 01: Yes, but what I'm saying is that it doesn't exert control over the message of the CME. [00:28:55] Speaker 01: It sets the boundaries on which the CME can occur. [00:28:58] Speaker 01: Much like other regulation, regulations commonplace and CLEs are quite common and we are familiar with them in law. [00:29:06] Speaker 01: But the speakers that are delivering CLEs are not delivering government messages. [00:29:11] Speaker 01: They're delivering their own messages that they want lawyers to know. [00:29:14] Speaker 03: just because they're... Delivering their own messages related to specific content or topics set forth by the government, right? [00:29:22] Speaker 01: Of course, of course. [00:29:23] Speaker 03: The government wants... But that's not enough because the regulations don't set the content out with greater specificity? [00:29:30] Speaker 01: Precisely. [00:29:31] Speaker 01: In order for there to be control over the message, the government has to control the message. [00:29:35] Speaker 01: What the government's speech factors are going to prove [00:29:38] Speaker 01: They're going to prove whether or not this is the government speaking. [00:29:41] Speaker 01: And because the government sets parameters on something, it doesn't make it the government's speech. [00:29:46] Speaker 01: It just says that this is where we want the speech to occur. [00:29:48] Speaker 01: It's setting a forum, if you want to use that as an analogy. [00:29:51] Speaker 04: Council, if they wanted to teach these courses, as they've indicated, they just hire a bunch of people, here's the course, follow these different things. [00:29:59] Speaker 04: But what you're saying is that [00:30:00] Speaker 04: that that's what they would have to do in order for it to be government speech. [00:30:05] Speaker 04: Outside of that, there's no government speech. [00:30:07] Speaker 04: Is that your position? [00:30:09] Speaker 01: Well, I would agree that if the government hired individuals to give CMEs, that that would be government speech. [00:30:14] Speaker 01: That would be the government speaking, government employees. [00:30:16] Speaker 01: That is quintessential government speech. [00:30:18] Speaker 04: And what's your best case on that point? [00:30:22] Speaker 01: On the point that if the government were speaking itself, it would be government speech. [00:30:26] Speaker 04: On the point that you're saying that if it's something outside of the example that we just talked about, everything else is private speech. [00:30:37] Speaker 01: I'm not saying it's categorically so. [00:30:39] Speaker 01: In fact, we know for a fact that private speakers can be co-opted to deliver a government message. [00:30:45] Speaker 01: But the question is always going to be, is it the government's message? [00:30:49] Speaker 01: And a CME on appendicitis is not anything the government state of California cares about. [00:30:56] Speaker 01: It cares about that you stay within the parameters of the regulation. [00:31:00] Speaker 01: So what the factors are going towards, and I see my time is up. [00:31:04] Speaker 01: What the factors are going towards is to determine whether the government is speaking, and no instance that we've talked about today is the government speaking. [00:31:10] Speaker 03: Thank you. [00:31:11] Speaker 03: Would it be any different? [00:31:12] Speaker 03: I know that you're over time, but that's fine because I still have a question. [00:31:17] Speaker 03: Would it be any different if the government were more specific in the content that it requires Dr. Khabidi to speak? [00:31:26] Speaker 03: So, for example, in order to receive credit, [00:31:30] Speaker 03: I want you to teach about cultural competency, implicit bias, opioid addiction, and here are the resources from which you must teach and cover at least these five points in each of those areas. [00:31:44] Speaker 03: Otherwise, there's no credit. [00:31:45] Speaker 03: Would that make a difference in your analysis? [00:31:49] Speaker 01: I don't think it would make a difference, and let me explain why briefly. [00:31:52] Speaker 01: In NIFLA, the most recent Supreme Court case dealing with compelled speech, you had private pregnancy centers, heavily regulated by the state, much like doctors are heavily regulated by the state. [00:32:03] Speaker 01: The state of California put the precise words that they had to post on the wall [00:32:09] Speaker 01: verbatim, and the Supreme Court said, despite the heavily regulated nature, despite us telling you what you have to say verbatim, that is compelled speech because you are a private actor and we are requiring you as a private actor to deliver the government's message. [00:32:23] Speaker 01: That is what the government is doing here. [00:32:25] Speaker 01: They are co-opting private actors to deliver a government message. [00:32:29] Speaker 01: Whether it's compelled speech, those questions, we're on 12b6 here. [00:32:32] Speaker 03: Only if you get credit. [00:32:33] Speaker 03: Only if you want credit, right? [00:32:35] Speaker 03: Otherwise, you can say whatever you want in whatever setting you want to. [00:32:38] Speaker 01: Right. [00:32:38] Speaker 03: In this particular case, the CMEs. [00:32:40] Speaker 01: That's right, Your Honor, but that doesn't make it government speech. [00:32:44] Speaker 01: It may make it not compelled. [00:32:46] Speaker 01: It may make it not compelled speech. [00:32:48] Speaker 01: And we can litigate that, and maybe we'll be back up here before you, and you can tell me why it's not compelled speech in a year or two. [00:32:55] Speaker 01: But it doesn't make it government speech simply because the government comes over after the fact and puts a credit stamp on it. [00:33:00] Speaker 01: That is TAM verbatim. [00:33:03] Speaker 03: All right, any additional questions before it goes on? [00:33:06] Speaker 03: Thank you very much both sides for your helpful arguments today. [00:33:09] Speaker 03: The matter is submitted.