Pierre Kory, et al. v. Rob Bonta, Attorney General of California, et al.

Should this Court grant this petition to resolve the widening conflict between the Ninth Circuit, which started in Tingley v. Ferguson, 47 F.4th 1055 (9th Cir. 2022), reh den., 57 F.4th 1072 (9th Cir. 2023) (with vigorous dissents), cert den. 144 S. Ct. 33 (2023) (dis. opns. of. Thomas, J. & Alito, J.) and the Eleventh Circuit in Otto v. City of Boca Ratan, 981 F.3d 854 (11th Cir. 2020), reh. den., 41 F.4th 1271 (11th Cir.

(with vigorous dissents). The conflict originally was whether physicians’ speech which is the treatment is fully First Amendment protected per Otto, or categorically excluded from protection per Tingley. The conflict has been expanded by the Ninth Circuit in this case which stated that no speech by physicians to patients is protected because it is all incidental to medical care.

Is the lower courts’ rule of law that all physician communications with patients are unprotected by the First Amendment consistent with or foreclosed by Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755 (2018) (“NIFLA”) and standard First Amendment content and viewpoint analysis. If foreclosed, does that make Respondents’ interpretation of Business and Professions Code Section 2234(c) unconstitutionally overbroad?

If the speech in this case is fully protected, have the Respondents satisfied their strict scrutiny burden?