In Conant v. Walters, the Ninth Circuit affirmed an injunction prohibiting federal officials from revoking a physician's registration, or even investigating a physician's conduct, based on the physician's recommendation that a patient use marijuana. 309 F.3d 629, 639 (9th Cir. 2002) (indicating rejection of government's argument that a doctor's "recommendation" of marijuana encourages illegal conduct by the patient), cert. denied Walters v. Conant, 540 U.S. 946 (2003); see also Thomas v. Collins, 323 U.S. 516, 535 (1945) (on First Amendment grounds, striking down a statute criminalizing solicitation of union membership without state license because the statute did not distinguish between solicitation and advocacy and so "put[ ] the speaker . . . wholly at the mercy . . . of his hearers and consequently of whatever inference may be drawn as to his intent and meaning"); White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000) ("We need not decide whether the plaintiffs' primary objective . . . would have involved an unlawful act. The mere fact that citizens urge their government to adopt measures that may be unlawful does not deprive the speech involved of its First Amendment protection.").
Plaintiff, maintains that a physician-patient relationship has protection under the First Amendment and state action may be enjoined where it places barriers to the full disclosure of all facts needed between these two parties. See Conant v. Walters, 309 F.3d 629 (9th Cir.2002), cert. denied, Walters v. Conant, 540 U.S. 946, 124 S.Ct. 387, 157 L.Ed.2d 276 (2003) (state regulation that threatened to punish physicians who spoke to their patients about the use of medical marijuana struck at core of First Amendment because recommendation itself did not constitute illegal conduct). As Defendants observe, there are two types of associations protected by the Constitution: expressive and intimate.