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Free Speech

Traditional Medical Licensing Requirements Don't Generally Violate First Amendment Rights of Doctors Providing Advice

So the Third Circuit held yesterday, though it left room for challenges to laws that make it too hard to get cross-licensed from one state to another.

Eugene Volokh | 9.1.2026 8:33 AM

From MacDonald v. President of N.J. State Bd. of Med. Examiners, decided yesterday by Judge Thomas Hardiman, joined by Justice Thomas Ambro:

New Jersey requires any doctor who wishes to practice telemedicine with a patient located in the state to first obtain a license from its Board of Medical Examiners….

Shannon MacDonald, M.D., is a radiation oncologist at Massachusetts General Hospital who specializes in treating rare pediatric cancers. She lives in Massachusetts and is licensed to practice medicine there. Dr. MacDonald used proton therapy to treat her patient J.A. for a rare childhood cancer when he was 18 months old. J.A. requires annual scans to monitor for anomalies, as the cancer often recurs. An anomaly was detected previously when J.A. lived in New York, and Dr. MacDonald was able to provide a telemedicine consultation to address the matter. J.A. is now a teenager living in New Jersey. He and his father, Michael Abell, would like to consult virtually with Dr. MacDonald in the future if any new anomalies appear on his annual scans.

Paul Gardner, M.D., is a neurosurgeon at the University of Pittsburgh Medical Center and an expert in skull base surgery. He lives in Pennsylvania and is licensed there. He too would like to speak with his patients located in New Jersey to "discuss treatment options" without requiring them to incur travel expenses. Hank Jennings is a New Jersey resident who underwent surgery and treatment by specialists in Pittsburgh when he was nineteen. Like J.A., Jennings needs periodic follow-up consultations and would like to do them via telemedicine to mitigate financial and time burdens….

The court concluded that the law was a content-based speech restriction, citing the Supreme Court's decision earlier this year in Chiles v. Salazar (which struck down the Colorado ban on conversion therapy, as applied to therapy that consists entirely of speech). But it concluded that such laws nonetheless didn't have to pass the "strict scrutiny" usually required for such content-based speech restrictions, because they were "consistent with a long and robust regulatory tradition" of professional licensing:

01

Our determination that New Jersey's law is content-based is not the end of the story, however. The Supreme Court has consistently instructed that "a long (if heretofore unrecognized) tradition" of a particular kind of speech restriction can show that the traditionally restricted speech warrants "diminished" protection.

For example, the First Amendment permits wholesale proscriptions of certain "exceptional categories" of speech that "share a long and well-recognized historical pedigree" like fraud and defamation. And even when those categories aren't implicated, evidence of a long tradition of a particular kind of speech regulation might tell a court to relax its guard when evaluating First Amendment challenges to similar regulations.

The Supreme Court's recent opinion in Vidal v. Elster is particularly instructive. There, the Court reasoned that the........

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