California’s broad telehealth restrictions violate the First Amendment because telehealth communications are primarily speech, not conduct.

Too often, public officials mischaracterize protected expression as illegal conduct. For example, California law makes it a crime for out-of-state doctors—even those fully licensed elsewhere—to discuss diagnoses or share medical information with patients in California unless they are also licensed in the state. These vague rules create serious legal uncertainty, especially for telehealth consultations. As a result, many doctors self-censor rather than risk enforcement by California’s licensing board.

In this case, Dr. Sean McBride, a nationally recognized oncologist licensed and practicing in New York, and Shellye Horowitz, a California resident with a rare blood disorder, are challenging California’s speech-chilling licensing regime. Dr. McBride fears that consulting or following up virtually with patients in California could subject him to criminal penalties. Ms. Horowitz, meanwhile, must often travel 14 hours round-trip to consult with her Oregon-based specialists because the law discourages them from speaking with her by phone or video.

Dr. McBride and Ms. Horowitz sued the California Medical Board, arguing that the state’s restrictions violate their constitutional rights, including their right to free speech. But the district court held that California may criminalize virtual patient-doctor communications on the grounds that they constitute “treatment, not protected speech.”

Now Cato has filed an amicus brief in support of Dr. McBride’s and Ms. Horowitz’s appeal to the U.S. Court of Appeals for the Ninth Circuit.

Our brief argues that the district court erred in holding that the law regulates professional conduct and only incidentally regulates speech. The telehealth communications Dr. McBride and Ms. Horowitz wish to engage in are speech, not conduct. Dr. McBride is an oncologist; Ms. Horowitz has a severe blood disorder. Leaving aside whether some types of medical treatment can be administered virtually, the court below clearly erred in deeming their patient-doctor consultations and communications “treatment” for cancer or blood disorders.

Moreover, California’s law should have triggered heightened First Amendment scrutiny because it imposes both speaker-based and content-based restrictions. The licensing law applies only to certain speakers—physicians—and criminalizes speech only on particular subjects. Doctors are free to discuss the weather or sports with patients, for instance, but not diagnoses or medical information.

The Ninth Circuit should reverse the lower court’s decision and allow Dr. McBride’s and Ms. Horowitz’s First Amendment claims to move forward. Patients and doctors should not face criminal penalties simply for speaking to each other about medical subjects.