Dr. Bernd Wollschlaeger v. Governor of the State of Florida
2017 U.S. App. LEXIS 2747
| 11th Cir. | 2017Background
- Florida enacted the Firearms Owners’ Privacy Act (FOPA) in 2011, restricting doctors and medical professionals from asking about, recording, harassing patients about, or discriminating based solely on firearm ownership; violations could trigger discipline by state medical boards.
- Plaintiffs (physicians and medical organizations) sued, seeking pre-enforcement relief; the district court enjoined record-keeping, inquiry, anti-harassment, and anti-discrimination provisions; Eleventh Circuit panels split on standards and outcomes; case reheard en banc.
- Key challenged provisions: (1) record-keeping ban on entering firearm information unless relevant to care; (2) inquiry rule advising practitioners to refrain from asking about firearms unless they in good faith believe it’s relevant; (3) anti-discrimination rule barring discrimination solely for firearm ownership; (4) anti-harassment admonition to refrain from “unnecessarily harassing” a patient about firearms.
- Plaintiffs showed self-censorship: doctors stopped asking, stopped using intake questions, or stopped recording firearm-related information citing fear of discipline, and thus alleged a credible pre-enforcement injury.
- The en banc Court agreed the record-keeping, inquiry, and anti-harassment provisions are speaker‑focused, content‑based restrictions on speech and subjected them to heightened scrutiny (Sorrell); those three provisions were held unconstitutional and severed from the Act. The anti-discrimination provision was construed to cover non‑expressive conduct and upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs have Article III standing / ripeness to bring a pre‑enforcement challenge | Doctors face a credible threat of discipline and have curtailed speech (self‑censorship) | State points to lack of enforcement history and non‑binding board letters to argue no credible threat | Standing and ripeness found: credible threat exists given statutory discipline scheme and Board actions/inconsistencies |
| Whether FOPA provisions regulate protected speech or mere professional conduct | Record‑keeping, inquiry, and anti‑harassment restrict doctors’ speech about firearms (content‑ and speaker‑based) | State argues regulation concerns professional conduct and privacy, not speech | Court: provisions regulate speech (speaker‑focused, content‑based) and trigger First Amendment scrutiny |
| Appropriate level of scrutiny for content‑based professional speech | Plaintiffs: heightened or strict scrutiny applies because law is content/speaker‑based and burdens speech | State: professional‑speech deference (rational basis) applies; law targets conduct and protects privacy/Second Amendment rights | Court applied heightened scrutiny (Sorrell) and concluded provisions fail even that standard; plurality/concurrences debate but rational basis rejected |
| Whether anti‑discrimination provision violates the First Amendment | Plaintiffs argued it could reach questions/records and chill speech | State argued it prevents discriminatory conduct and preserves access to care | Court construed provision to apply to non‑expressive conduct (scheduling, fees, access) and upheld it as constitutional |
Key Cases Cited
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (content‑based speech restrictions are presumptively invalid)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (heightened scrutiny for speaker‑ and content‑based burdens on speech)
- Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251 (S.D. Fla. 2012) (district court opinion enjoining multiple FOPA provisions)
- Wollschlaeger v. Governor of Fla., 814 F.3d 1159 (11th Cir. 2015) (panel opinion addressing FOPA; vacated and considered en banc)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (defining content‑based regulation as regulation that depends on topic or message)
- Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) (invalidating federal policy that chilled doctors’ recommendations about medical marijuana)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (content/speaker‑based burdens on advocacy implicated heightened scrutiny)
- Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988) (pre‑enforcement chill and self‑censorship can establish standing)
- Edenfield v. Fane, 507 U.S. 761 (1993) (government must show adequate evidence to justify restrictions on solicitation/speech)
- Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994) (fit between legislative ends and means required under heightened review)
- Planned Parenthood v. Casey, 505 U.S. 833 (1992) (discussing limits on professional‑context speech regulations)