What changed

The licensure requirements for out-of-state physicians seeking to provide telemedicine and telehealth services to patients in New Jersey allegedly were relaxed during the COVID-19 pandemic. Those physicians could engage in any kind of telemedicine without a New Jersey license if they had a preexisting doctor-patient relationship with the recipient, and they could undertake COVID-19-specific telemedicine regardless of whether there was a preexisting relationship. New Jersey also “waived application fees and allowed qualified applicants to become licensed within 24 hours of applying” under a “Temporary Emergency Reciprocity Licensure program.” App. 53.

As Plaintiffs rightly note, laws that “target[] speech based on its communicative content” are usually subject to strict scrutiny. City of Austin, Texas v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 69 (2022) (citation modified). The most “egregious form” of content-based laws are those that discriminate based on a speaker’s viewpoint, i.e., those that “dictate what particular opinion or perspective individuals may express on [a] subject.” Chiles, 146 S. Ct. at 1021 (citation modified). All agree that the New Jersey law is not a viewpoint-based restriction. But while less inimical to the free speech right than viewpoint-based laws, a law whose application turns on “the topic discussed or the idea or message expressed” still threatens free speech and is normally subject to strict scrutiny. City of Austin, 596 U.S. at 69 (citation modified).

Of course, there are other necessary conditions for a violation of the telemedicine law, most obviously that the speaker not be licensed in New Jersey. But that fact does not alter the content-based nature of the law. Indeed, many if not most content-based laws have conditions other than speech content that are necessary for a violation. Take, for example, “a law banning the use of sound trucks for political speech.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 169 (2015). Undoubtedly that law is content-based even though speech with political content is a necessary but not sufficient condition of a violation. Or take a recently considered law that prohibited robocalls unless made to collect a debt owed to the United States. See Barr v. Am. Ass’n of Pol. Consultants, Inc., 591 U.S. 610, 619 (2020) (plurality opinion). That law is contentbased even though the robocall modality is required for a violation, in addition to non-debt-collection content. See id.; see also id. at 636–37 (Sotomayor, J., concurring) (agreeing the law is content based); id. at 639–44 (Breyer, J., with whom Ginsburg, J. and Kagan, J. join, concurring in part and dissenting in part) (same); Id. at 650–51 (Gorsuch, J., concurring in part and dissenting in part) (same). Or, of particular relevance here, take laws that restrict speech with certain content by certain speakers—like a law restricting political speech by corporations, see Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340–41 (2010), or a law “limiting the content of newspapers,” see Reed, 576 U.S. at 170 (considering that example). Those laws, like New Jersey’s here, are content-based even though they might also “be characterized as speaker-based.” Id.2

In any event, even had we held in Castille that licensure requirements for the speech aspects of professions always receive mere rational-basis scrutiny, the Supreme Court’s intervening decision in NIFLA would require us to revisit it. NIFLA held that there is no category of speech called “professional speech” that receives diminished First Amendment protection. 585 U.S. at 767–68; see also Chiles, 146 S. Ct. at 1024 (reiterating that principle). So we generally must treat speech uttered in the course of professional practice the same as any other speech. NIFLA, 585 U.S. at 767–68; see also Veterans Guardian, 133 F.4th at 220 (“With few exceptions, the same First Amendment principles apply when professionals speak to clients as when anyone else talks.”). And ordinarily, strict scrutiny applies to content-based restrictions on speech like the one here.

Our determination that New Jersey’s law is contentbased 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. Chiles, 146 S. Ct. at 1026 (citation modified); see also Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 474–75 (2022) (“‘[A] regular course of practice’ can illuminate or ‘liquidate’ our founding document’s ‘terms and phrases’” (quoting Letter from J. Madison to S. Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908)).

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. Chiles, 146 S. Ct. at 1021; see also Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 472–73 (2025) (summarizing obscenity prohibitions’ historical pedigree). 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. See Houston Cmty. Coll. Syst., 595 U.S. at 474–77 (historical use of censures by assemblies against members for their speech suggested such censures do not constitute First Amendment retaliation); City of Austin, 596 U.S. at 75 (tradition of regulating on- and offpremises signs differently counseled against conclusion that such distinctions were really content-based regulations); Vidal v. Elster, 602 U.S. 286, 301 (2024) (collecting cases where the Supreme Court has “consider[ed] [a restriction’s] history and tradition”). See also Williams-Yulee v. Fla. Bar, 575 U.S. 433, 462 (2015) (Scalia, J., dissenting) (“Our cases hold that speech enjoys the full protection of the First Amendment unless a widespread and longstanding tradition ratifies its regulation.”); Chiles, 146 S. Ct. at 1031 (Kagan, J., concurring) (opining that “experience and reason alike” might show that content-based and viewpoint-neutral restrictions on speech in the medical field do not warrant strict scrutiny)

Against this backdrop, we consider the history and tradition of medical licensing. Medical-licensing laws have a lengthy pedigree in the Anglo-American legal tradition, appearing in England at least as early as 1518. That year, Henry VIII granted the Royal College of Physicians a charter to license those qualified to practice “physick” in London and to prosecute those who practiced without a license. Jeffrey Lionel Berlant, Profession and Monopoly: A Study of Medicine in the United States and Great Britain 134–35 (1975); see also Harold J. Cook, Policing the Health of London: the College of Physicians and the Early Stuart Monarchy, 2 Soc. Hist. Med. No. 1 at 6–7 (April 1989) (tracing the expansion of the College’s regulatory ambit). An Act of England’s Parliament confirmed the charter a few years later. See B. Abbott Goldberg, Horseshoers, Doctors and Judges and the Law on Medical Competence, 9 Pac. L.J. 107, 122 (1978). See also Dr. Bonham’s Case, 8 Co. Rep. 107a, 108a–109a, 77 Eng. Rep. 638, 639–41 (C.P. 1610) (describing the charter and statute). The practice of physicians in England at that time consisted almost exclusively of speech with specified content: “[a]s gentlemen,” they “declined to work with their hands and only observed, speculated, and prescribed.” Paul Starr, The Social Transformation of American Medicine: The Rise of a Sovereign Profession and the Making of a Vast Industry 37–38 (1982). Manual tasks were left to surgeons and apothecaries. Id. So prohibiting the unlicensed practice of “physick” was a content-based regulation of speech.

To be sure, these early English and American laws did not represent enduring consensus on medical licensure. In London, the scope of the Royal College’s authority was narrowed by exemptions from licensing for domestic practitioners, and apothecaries infringed physicians’ monopoly on medical advice with impunity. See Kett at 3–4; Berlant at 144. In the United States, the founding-era licensing laws were often weak on their own terms, merely prohibiting unlicensed practitioners from suing to recover payment. William G.

Rothstein, American Physicians in the Nineteenth Century: From Sects to Science 76 (1972). Unlicensed practitioners could circumvent that restriction by demanding payment up front. Lewis A Grossman, Choose Your Medicine: Freedom of Therapeutic Choice in America 16 (2021). And even the laws that provided for substantial punishment like fines or imprisonment were rarely enforced. Rothstein at 76–79. Most American licensing laws were then repealed altogether during the Jacksonian era. John Duffy, From Humors to Medical Science: A History of American Medicine 218 (2d ed. 1993).

This temporary swing in momentum was probably attributable to various factors. For one, the practice of medicine was so inadequate (and often harmful) that the American people were perhaps reluctant to authorize states to declare who could practice. See Starr at 56, 58. For another, medicine was still viewed by many as more like religion than science, so religious-freedom sentiment often colored debates about licensing. See Grossman at 38–40. Licensure requirements in general also were inconsistent with the prevailing egalitarian attitudes of the Jacksonian era. See id. at 32–38. Finally, most Americans could not afford professional medical services, and the nature of travel presented serious impediments, so domestic practitioners were often the only realistic option. Starr at 65– 66.

First, the law does not violate the so-called “dormant” Commerce Clause because it neither discriminates against outof-state commercial actors, see Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 369 (2023), nor imposes burdens on interstate commerce that are “clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); see Nat’l Pork Producers, 598 U.S. at 379–80.

Plaintiffs also contend that the law has a protectionist “leveling effect” like the law challenged in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977). Pls. Br. 44. Not so. Hunt involved a state law mandating use of an inferior apple-grading system that in-state growers were already using and out-of-state growers were not. Id. at 340, 350–52. The so-called “leveling effect,” id. at 351, resulted from the requirement that out-of-state growers conform to what in-state growers were already doing, see id. at 340, 351– 52. Here, Plaintiffs have identified nothing in the New Jersey law that favors practices unique to physicians based in New Jersey. To the contrary, they spend other parts of their brief explaining that competency standards are nationally uniform.