Date: Sep 3, 2026

Historically Rooted Medical-Licensing Laws for Telemedicine Speech Survive Heightened First Amendment Review

I. Introduction

In Shannon MacDonald v. President NJ State Board of Medical Examiners (3d Cir. Aug. 31, 2026), the Third Circuit addressed whether New Jersey’s requirement that physicians be licensed in New Jersey before providing telemedicine/telehealth services to patients located in New Jersey violates the First Amendment and other constitutional provisions.

The plaintiffs were two out-of-state specialists—Shannon MacDonald, M.D. (Massachusetts) and Paul Gardner, M.D. (Pennsylvania)—and several New Jersey residents who wanted to receive follow-up consultations remotely. They brought an as-applied challenge to N.J. Stat. Ann. § 45:1-62(b), arguing that New Jersey’s in-state licensure prerequisite unlawfully restricts physician-patient communications (diagnoses and treatment advice) via telemedicine.

The key issues were: (1) whether the telemedicine licensure requirement regulates “speech” and, if so, what level of First Amendment scrutiny applies given the law’s content-based character; (2) whether the law violates the dormant Commerce Clause or Article IV Privileges and Immunities Clause; and (3) whether a parent had standing to assert a substantive due process claim about directing a child’s medical care.

II. Summary of the Opinion

First Amendment: The court held the law is a content-based regulation of speech because it conditions a doctor’s ability to communicate diagnoses and treatment recommendations on holding a New Jersey license. Nonetheless, strict scrutiny was deemed inappropriate in light of the long historical tradition of medical licensing (a tradition that has “always” encompassed advice-giving, i.e., speech). The court applied (at most) intermediate scrutiny and upheld the statute because the added burdens on already-licensed out-of-state physicians were not plausibly “substantial,” and the law served New Jersey’s important interest in patient health and safety.
Dormant Commerce Clause: No discrimination against out-of-state actors and no clearly excessive burden under Pike.
Privileges and Immunities: No discrimination based on residency because everyone must hold a New Jersey license to treat New Jersey patients.
Substantive Due Process (standing): The parent’s alleged injury was too speculative; claim dismissed for lack of jurisdiction and therefore without prejudice.

III. Analysis

A. Precedents Cited

1. Identifying speech and content-based regulation

Veterans Guardian VA Claim Consulting LLC v. Platkin, 133 F.4th 213 (3d Cir. 2025): Used for the threshold inquiry whether a law regulates speech; the court relied on it to recognize that advice communicated through words is speech.
Chiles v. Salazar, 146 S. Ct. 1010 (2026): Quoted for (i) the centrality of the spoken word and (ii) the limits of “incident-to-conduct” reasoning; also invoked for the Court’s insistence that “professional speech” is not a lower-protection category, and for its distinction between viewpoint-discriminatory medical speech restrictions and traditional licensing laws addressing qualifications.
Riley v. Nat'l Fed'n of the Blind of N. Carolina, Inc., 487 U.S. 781 (1988), and Billups v. City of Charleston, S.C., 961 F.3d 673 (4th Cir. 2020): Cited for the proposition that licensing requirements can be regulations of speech.
City of Austin, Texas v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61 (2022), and Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640 (1981): Used to explain that some regulations requiring examination of content are nonetheless content-neutral when content is only a proxy for neutral criteria (location, solicitation function). The Third Circuit distinguished New Jersey’s law because it directly targets particular messages (diagnose, treat, prescribe).
Brokamp v. James, 66 F.4th 374 (2d Cir. 2023): Discussed as an example where a licensing regime was treated as content-neutral because it turned on purpose/context rather than message. The Third Circuit found New Jersey’s medical practice definition different: the relevant criterion is the communicative content itself.
Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015), Barr v. Am. Ass'n of Pol. Consultants, Inc., 591 U.S. 610 (2020), and Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010): Used to illustrate why a law can be content-based even if other conditions (medium, speaker status, context) also matter.
New Jersey cases Pinkus v. MacMahon, 29 A.2d 885 (N.J. 1943), and State v. Jeannotte-Rodriguez, 261 A.3d 1005 (N.J. App. Div. 2021): Cited to show New Jersey historically treats diagnosing and recommending treatment as the practice of medicine—supporting the court’s conclusion that plaintiffs sought to engage in covered speech.

2. Rejecting categorical deference for “professional speech”

Nat'l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755 (2018) (“NIFLA”): Central to the court’s refusal to treat professional speech as a diminished-protection category; also used to reject the idea that a compelled or restricted communication is “incidental” to conduct simply because it occurs in a regulated profession.
National Association for the Advancement of Multijurisdiction Practice v. Castille, 799 F.3d 216 (3d Cir. 2015): New Jersey invoked Castille to argue licensing laws for traditional professions avoid heightened scrutiny. The Third Circuit narrowed Castille to its facts (bar exam requirement not keyed to speech content) and noted that any broader “professional speech” deference would be in tension with NIFLA.

3. History-and-tradition as a First Amendment “fit” principle

Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468 (2022): Used for the proposition that longstanding practice can “liquidate” constitutional meaning and inform First Amendment analysis.
Vidal v. Elster, 602 U.S. 286 (2024): The opinion’s key methodological analogue. The Third Circuit relied on Vidal to show that some “inherently content-based” regulatory regimes with longstanding pedigrees can be compatible with the First Amendment without defaulting to strict scrutiny.
Free Speech Coal., Inc. v. Paxton, 606 U.S. 461 (2025): Cited regarding baseline scrutiny concepts (including rational-basis review for wholly proscribable speech categories) and to frame where intermediate scrutiny fits.
Williams-Yulee v. Fla. Bar, 575 U.S. 433 (2015) (Scalia, J., dissenting): Quoted for the idea that longstanding tradition can “ratify” certain regulations of speech.
New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022): Cited to caution that post-ratification practice cannot override original meaning—though the court ultimately found the medical-licensing tradition consistent with speech protections.

4. The chosen scrutiny and its application

TikTok Inc. v. Garland, 604 U.S. 56 (2025): Provided the intermediate scrutiny formulation used by the court.
Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016): Used for the “not burden substantially more speech than necessary” concept, including the idea that “slight” burdens and de minimis administrative constraints are unlikely to fail intermediate scrutiny.
West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), and Abrams v. United States, 250 U.S. 616 (1919) (Holmes, J., dissenting): Invoked to explain why licensing laws do not typically threaten core First Amendment values (no orthodoxy, no exclusion from the broader marketplace of ideas).

5. Non-First-Amendment doctrines

Nat'l Pork Producers Council v. Ross, 598 U.S. 356 (2023), and Pike v. Bruce Church, Inc., 397 U.S. 137 (1970): Framework for dormant Commerce Clause discrimination and balancing.
Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977): Plaintiffs’ “leveling effect” analogy—rejected because New Jersey did not force out-of-state doctors to adopt an in-state unique system.
Tolchin v. Sup. Ct. of N.J., 111 F.3d 1099 (3d Cir. 1997): Used to show the relevant “discrimination” (if any) was against multi-state practitioners rather than out-of-state residents.
Zahl v. Harper, 282 F.3d 204 (3d Cir. 2002), Kassel v. Consol. Freightways Corp. of Delaware, 450 U.S. 662 (1981), and Edgar v. MITE Corp., 457 U.S. 624 (1982): Used to emphasize deference to states in traditionally local health/safety regulation and to reject claims of impermissible extraterritorial reach.
United Bldg. & Constr. Trades Council of Camden Cnty. & Vicinity v. Mayor & Council of Camden, 465 U.S. 208 (1984): Privileges and Immunities standard—discrimination against nonresidents in matters of fundamental concern.
Cook v. GameStop, Inc., 148 F.4th 153 (3d Cir. 2025), Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992), and Clemens v. ExecuPharm Inc., 48 F.4th 146 (3d Cir. 2022): Standing doctrine requiring actual/imminent injury; used to dismiss the substantive due process claim without prejudice.

B. Legal Reasoning

1. The court’s core First Amendment move: “content-based,” but not strict scrutiny

The opinion begins from a strong First Amendment premise: telemedicine consultations consist of “spoken words” conveying “diagnoses” and “expert advice,” and conditioning that communication on licensure is a regulation of speech. The court then makes an equally consequential classification: New Jersey’s statute is content-based because it applies when a doctor “diagnose[s], treat[s], operate[s] or prescribe[s]” (N.J. Stat. Ann. § 45:9-18)—i.e., it turns on what is being communicated, not merely where, when, or for a neutral regulatory purpose.

Ordinarily, that classification would trigger strict scrutiny. But the court emphasized a second, competing First Amendment strand—history and tradition—as articulated in Chiles, Houston Cmty. Coll. Sys., and especially Vidal v. Elster. The court treated medical licensing as a historically entrenched regulatory domain that has long restricted speech-as-practice (advice and diagnosis) in a viewpoint-neutral manner. Because such licensing has existed since at least 1518 in England and became uniformly entrenched across U.S. states by the late 19th century, the court concluded strict scrutiny was “inapt,” even if the law is content-based.

2. Why “incident to conduct” did not resolve the case

New Jersey argued the law regulates professional conduct and burdens speech only incidentally. The court rejected that argument using Chiles and NIFLA: “incidental” does not mean “mostly conduct, sometimes speech.” It means speech restricted because it is integrally related to unlawful conduct, or because government is regulating expressive conduct for reasons unrelated to content. Here, the doctors sought to engage in advice-only telemedicine without any physical treatment in New Jersey, and any physical treatment would occur only where they were licensed; therefore the speech was not “integrally related” to unlawful conduct.

3. The selected test and its “minimal burden” finding

The court declined to choose definitively between rational-basis review and intermediate scrutiny, holding the statute survives even under intermediate scrutiny. Under that standard (TikTok Inc. v. Garland), New Jersey needed an important interest unrelated to suppressing expression, and the law could not burden substantially more speech than necessary.

New Jersey’s interest in protecting patient health and safety was undisputed. The real dispute was tailoring: whether it was unconstitutionally burdensome to require already-licensed out-of-state specialists to obtain New Jersey licensure to speak to New Jersey patients. The court’s answer turned on the complaint’s pleaded facts: streamlined reciprocity for substantially equivalent states, a finite processing timeline, and fees in the hundreds—not prohibitive—and vague, undeveloped allegations of renewal/administrative burdens. Relying on Bruni v. City of Pittsburgh, the court treated these allegations as insufficient to plausibly show the law burdens “substantially more speech than necessary” compared with the plaintiffs’ proposed alternative (treating an out-of-state license as sufficient).

Notably, the court framed the plaintiffs’ case as a challenge to “duplicative” procedures, not to the substantive qualifications New Jersey demands (competence, background checks, etc.). That framing allowed the court to uphold the statute without deciding difficult questions about whether states must recognize equivalently rigorous out-of-state licensure for telemedicine.

4. Commerce Clause, Privileges & Immunities, and standing

On the dormant Commerce Clause, the court found no facial or practical discrimination against out-of-state doctors because in-state physicians with national practices are similarly burdened—this is a regulation of practice in New Jersey, not a residency classification. Under Pike, plaintiffs also failed to plead a burden “clearly excessive” in relation to health benefits, especially given deference in traditional health regulation (Zahl v. Harper; Kassel).

The Privileges and Immunities claim failed for the same structural reason: the licensing requirement applies to anyone who wants to treat New Jersey patients, regardless of where the physician resides.

Finally, the parent’s substantive due process claim was dismissed for lack of standing under Lujan and Clemens: the hoped-for future need for consultation was speculative rather than actual or imminent. Under Cook v. GameStop, Inc., the court modified the disposition to make the dismissal without prejudice for lack of jurisdiction.

C. Impact

First Amendment challenges to telemedicine licensing face a new hurdle in the Third Circuit: Even where a medical licensing rule is expressly deemed content-based, the court signaled that longstanding tradition can make strict scrutiny “inapt” and that intermediate scrutiny (at most) may apply.
Practical pleading consequences: The opinion is heavily driven by the complaint’s failure to allege concrete, substantial burdens (prohibitive fees, lengthy delays, onerous ongoing compliance obligations, or meaningful chilling of speech). Future litigants will likely respond with more granular factual showings about delay, costs, multi-state administrative friction, and patient harm from delayed specialist advice.
Federalism tailwind for state telemedicine borders: The dormant Commerce Clause and Privileges and Immunities analyses reaffirm that state “patient-location” rules (license required where the patient sits) are generally treated as evenhanded health-and-safety regulations rather than protectionism—absent features that uniquely advantage in-state actors.
Standing limits in anticipatory-care disputes: The standing holding underscores that “option value” (wanting access to a specialist if something happens) may not be enough without plausible allegations of substantial risk or impending need.

IV. Complex Concepts Simplified

Content-based regulation: A law is content-based when it applies because of what someone says (the message/topic), not merely because of where, when, or how they speak. Here, the statute applies when a physician communicates diagnoses or treatment recommendations—specific kinds of messages.
Strict scrutiny vs. intermediate scrutiny: Strict scrutiny is the toughest standard; the government must show the law is narrowly tailored to a compelling interest. Intermediate scrutiny is less demanding; the government must show an important interest and a reasonable fit that does not burden substantially more speech than necessary.
History-and-tradition method in First Amendment analysis: Even if a law looks suspicious under modern doctrinal categories (like “content-based”), a deep, longstanding regulatory tradition can indicate the restriction is compatible with the First Amendment, influencing the court’s choice of scrutiny and its assessment of constitutionality.
Dormant Commerce Clause: A doctrine that prevents states from protectionist rules that discriminate against interstate commerce or impose clearly excessive burdens compared to local benefits. A law that applies equally to in-state and out-of-state actors is harder to attack under this doctrine.
Article III standing: To sue in federal court, a plaintiff must show an actual or imminent injury—not a speculative future possibility. Wanting a future option for telemedicine, without facts showing the need is impending or highly likely, may be insufficient.

V. Conclusion

The Third Circuit’s central contribution is its synthesis of two First Amendment strands: it candidly classifies New Jersey’s telemedicine licensure rule as a content-based restriction on speech, yet uses the long historical tradition of medical licensing to reject strict scrutiny as the default lens. Applying at most intermediate scrutiny, it upheld the licensing requirement because the pleaded incremental burdens on already-licensed out-of-state specialists were slight relative to New Jersey’s important interest in protecting patient health and safety. The decision simultaneously strengthens states’ hands in maintaining patient-location licensing boundaries for telemedicine and raises the bar for future plaintiffs to plead concrete burdens and imminent harms—both for merits and for standing.