Wollschlaeger v. Farmer
2011 U.S. Dist. LEXIS 104034
S.D. Fla.2011Background
- Governor Scott signed Firearm Owners’ Privacy Act, creating Fla. Stat. § 790.338 restricting recording, inquiries, discrimination, and harassment regarding firearm ownership in medical settings.
- The Act subjects violations to disciplinary action under Fla. Stat. §§ 456.072, 395.1055; it centers on protecting patients’ firearm ownership privacy within medical care.
- Legislative history shows the law was framed to address physicians asking about firearms, based on anecdotes rather than studies, and to rectify perceived gaps in existing law.
- Plaintiffs—physicians and physician groups—allege the Act burdens First Amendment rights and impairs preventive medicine practices aimed at safety counseling.
- Plaintiffs filed a First Amended Complaint (June 24, 2011) seeking a preliminary injunction to enjoin enforcement of the Act.
- Judge conducted a hearing on July 13, 2011, and found a substantial likelihood of success on the facial First Amendment challenge, justifying injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 790.338 is facially unconstitutional. | Plaintiffs contend the Act burdens protected speech and is content-based, warranting strict scrutiny. | State argues the law regulates professional speech, not protected speech, and is hortatory in parts. | Yes; the Act is facially unconstitutional under strict scrutiny. |
| Whether Plaintiffs have standing to challenge the Act. | Plaintiffs allege ongoing self-censorship and injury-in-fact from chilled speech. | State argues no concrete injury beyond speculative concerns. | Plaintiffs have standing; injury is actual due to self-censorship. |
| Whether the least restrictive means test supports the Act. | Least restrictive alternative is patient-only consent to answer questions, or neutral, content-neutral harassment rules. | State asserts no less restrictive alternative exists or is less effective. | Not satisfied; least restrictive alternatives exist and the Act is not narrowly tailored. |
| Whether the Act survives strict scrutiny given compelling interests. | Protecting privacy is not sufficiently compelling to justify content-based speech restrictions on physicians. | State asserts compelling interest in protecting patient privacy and preventing harassment and discrimination. | Not sustained; interests not shown to be compelling or served least restrictively. |
Key Cases Cited
- Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (U.S. 2011) (strict scrutiny for content-based restrictions; details on least restrictive means)
- United States v. Playboy Entm't Grp., Inc., 529 U.S. 803 (U.S. 2000) (content-based burdens presumed invalid; high scrutiny when restricting protected speech)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (U.S. 1992) (content-based harassment prohibitions subject to strict scrutiny; selectivity improper)
- Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (U.S. 1984) (freedom of speech essential to truth and societal vitality)
- Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (speech within the doctor-patient context central to medical practice)
- Trammel v. United States, 445 U.S. 40 (U.S. 1980) (communication essential to diagnosis and treatment within medical care)
- Heller v. District of Columbia, 554 U.S. 570 (U.S. 2008) (keeps arms meaning; contextual reference to firearm rights)