*1 (D.Mass.2013) (find- 304, F.Supp.2d 323-24 United States court for violations of in- displaced was ing presumption that by ternational law committed United the defendant was a resident of because States citizens while on United States soil. provided assistance United States Certainly, these extraterritorial claims campaign persecution to an overseas “touch and territory concern the of the States); Laden, v. from the United Mwani United great By States” with force. fail- (D.D.C.2013) 1, F.Supp.2d (holding ing to enforce the ATS under these cir- (1) plotted that a terrorist attack that was cumstances, I fear we disarm innocents (2) States, in part within the United against American corporations engage at a Embassy was directed United States rights in human violations abroad. I un- employees displaced presump- and its derstand the ATS to have been deliberate- tion); Rajaratnam, Krishanti v. 2014 WL ly crafted regrettable to avoid this result. (D.N.J. 2014) 1669873, 28, at *10 Apr. reasons, For I respectfully these dissent. (“The Rajaratnam Defendants focus on the fact all of the harm to Plaintiffs oc- argument
curred in Sri Lanka. This weight
would hold if the Plaintiffs were
suing the LTTE for the actions it took in However,
Sri Lanka. Plaintiffs are in- suing Rajaratnam
stead Defendants alleged
for their actions that occurred States.”);
within the United see also Du Inc., Sys.,
Daobin v. 2 F.Supp.3d Cisco (D.Md. 717, 728, 2014 WL at *9 WOLLSCHLAEGER, Dr. Bernd Dr. Ju 2014) (observing Feb. Kiobel Schaechter, Tommy dith Dr. Schecht (1) distinguishable because “Cisco is an man, Academy American of Pedia (2) company”; plaintiffs American al- trics, Chapter, Florida American leged that place pre- Cisco’s actions “took Academy Family Physicians, Flori dominantly, entirely, if not within the Unit- Chapter, College Phy da American States”). courts, ed I Like these conclude sicians, Inc., Chapter, Florida Roland plaintiffs’ sufficiently claims here Gutierrez, Stanley Sack, Shannon “touch and concern” the territory of the Fox-Levine, Plaintiffs-Appellees, they allege United States because Chiquita violated international law from v. by offering within United States sub- GOVERNOR OF State FLORI campaign stantial assistance to a of vio- DA, Secretary, Florida, State of Sur lence abroad.
geon Florida, General State III. Secretary, Health Care Administra Florida, sum, In tion of the State Division I do not read Kiobel to be an Director, Department Florida impediment remedy to providing a to civil- Health, Quality Division of Medical decades-long campaign ians harmed Assurance, George Thomas, they plainly allege of terror to have been Jason Rosenberg, Zachariah, sponsored by an Zachariah P. corporation. American Tucker, Espinola, Again, plaintiffs these do not Trina seek relief Elisabeth Orr, Gary foreign for the offenses of a defendant on Merle Stringer, James Win Sanadi, Nuss, foreign plaintiffs soil. These seek relief in chester, Nabil El Robert *2 Bearison, Lage, Donald Fred Onelia Goersch,
Mullins, Brigette Rivera Levine, Defendants-Appel-
Bradley
lants. County Association, Medical
Broward Society, County Pediatric
Broward Society, County Medical
Palm Beach Association, Health
Florida Public
University Miami of Law of School Clinic, Health- Children’s
and Youth Duty, Inc., Early Legal
care is Foundation, Initiative
Childhood Pediatrics, Academy
American Academy and Ado-
American of Child Psychiatry, American Acade-
lescent
my Family Physicians, American Surgeons,
Academy Orthopaedic Surgeons, College Ameri-
American Medicine, College
can of Preventive College
American of Obstetricians Gynecologist, Congress American Gynecologists,
of Obstetricians Association, Psychiatric
American Jurispru-
Center for Constitutional
dence, Responsible Gun Doctors
Ownership, Rifle National Association America, American Medical Associ- Florida,
ation, Aclu Foundation County Society,
Alachua Medical Association,
American Public Health Suicidology,
American Association of of Edu-
Suicide Awareness Voices
cation, Law Center to Prevent Gun
Violence, Amicus Curiae.
No. 12-14009. Appeals,
United States Court
Eleventh Circuit.
July *7 Hallward-Driemeier, Bruce S.
Douglas Manheim, Jr., Lewis, Augustine Julia LLP, Gray E. Ripa, Ropes & Jonathan Vice, DC, Lowy, Washington, Daniel R. Kainen, Mark, Kainen Weisberg Dennis G. Lucas, P.A., PL, Lucas, Hal M. Hal M. Davis, Mullins, Astigarraga M. Edward Miami, FL, Plaintiffs-Appellees. Winsor, Bondi, Vail, Pam Jason Allen C. Osterhaus, Timothy David Office of the General, Tallahassee, FL, Attorney for De- fendants-Appellants. Caso,
Anthony T. Univ. School Chapman Law, CA, Orange, Bryan H. Heckenlive- Olsen, LLP, ly, San Munger Tolies & Francisco, CA, Levenstein, Harry Richard PA, Stuart, Sopko Kramer & Levenstein FL, Patterson, A. Cooper, Charles J. Peter Kirk, Thompson, Cooper David H. & Julin, DC, Washington, Thomas Richard Isani, Williams, Zysk & Jamie Hunton LLP, Greenberg, Edward Gelber Gerald *8 PA, Greenberg, & Gordon Schachter Mead, Jr., Stearns Miller McRae Weaver Sitterson, PA, Miami, Alhadeff & Weissler FL, Marshall, Randall American Civil C. Union, AL, Montgomery, for Liberties Amicus Curiae. simply good
The Act codifies that medical require care does not inquiry or record- keeping regarding firearms when unneces- sary patient’s to a care. It is uncontrover- WILSON, may police Before TJOFLAT and Circuit sial that a state the boundaries COOGLER,* Judges, Judge. good practice by and District of routinely sub- jecting physicians malpractice liability TJOFLAT, Judge: Circuit discipline administrative for all manner Florida, activity of of that the state deems The Governor State bad medi- cine, officials, necessarily much of which other Florida and members of the involves physicians speaking to Depart- patients. Although Board of Medicine of the Florida “State”), the Act (collectively, singles particular ment of Health out a subset of grant physician activity trigger from District of as a for appeal Court’s disci- summary injunction pline, an this does little to alter judgment analysis. and Any group physicians physi- places physician favor of a of and burden speech is advocacy groups (collectively, entirely cian “Plain- thus incidental. Plain- tiffs”) enjoining physicians always enforcement of Florida’s tiffs remain free—as (the “Act”) Privacy Firearm Act1 have been—to assert their First Owners Amend- rights on First and Fourteenth Amendment ment as an affirmative defense brought against actions grounds. them. But we not, by striking will down the effec- protect patients’ priva- The Act seeks to tively hand Plaintiffs a declaration that cy by restricting inquiry irrelevant such defense will be successful. Fur- record-keeping by physicians regarding thermore, when the Act properly under- recognizes firearms. The Act that when a regulation of physician stood as conduct patient physician’s enters a examination to protect patient privacy intended room, patient position is in a of rela- physician-patient curtail abuses of the rela- powerlessness. tive must tionship, readily it becomes apparent place physician’s his or her trust in the language type of the Act the of con- guidance, physician’s and submit to the prohibits. Accordingly, duct the Act we In authority. protect patients, order to grant reverse the District Court’s of sum- subject physicians have for millennia been Plaintiffs, mary judgment favor practice to codes conduct define the injunction against enforcement vacate the good responsi- medicine and affirm the of Act. bility physicians keeping bear. In these traditional codes conduct—which I. universally respect pa-
almost mandate privacy simply tient acknowl- —the 2, 2011, Florida Rick On June Governor edges that practice good medicine Act into The Act signed Scott law. require interrogation does not about irrel- 790.338, § Fla. created Stat. entitled evant, private matters. firearms; concerning privacy “Medical such, legiti- prohibitions; penalties; exceptions,” As we find that the Act is Bill professional mate conduct. amended the Florida Patient’s * April Coogler, L. United 1. Act of 2011 Fla. Laws 112 Honorable Scott States 381.026, 456.072, (codified Judge §§ District for the Northern District of at Fla. Stat. Alabama, 790.338). sitting by designation. *9 concerning ownership a patient’s mation Responsibilities, Fla. Stat.
Rights patient’s the same into the medical record 381.026, several of firearms § to include amended Fla. “not relevant practitioner The Act also that the knows is provisions. 456.072, “Grounds for dis- safety, § entitled medical care or or patient’s Stat. enforcement,” (ii) others,” 790.338(1); penalties; § cipline; safety measures for violation disciplinary privacy vide respect patient’s right a “shall legislature passed Florida of the Act. The inquiring from as to and should refrain” complaints from response family patient a or his or her whether personnel that medical were constituents firearms, practitioner unless the or owns regarding asking questions unwelcome “in- good faith that facility believes and that constituents ownership, firearm patient’s is relevant to the medi- formation on ac- or discrimination faced harassment others,” safety of safety, cal care or or the ques- to answer such count of their refusal (iii) 790.338(2); “may § not discriminate” fire- to their status as simply tions or due of firearm against patient a on the basis arm owners.2 (iv) 790.338(5); § “should ownership, unnecessarily harassing pa- a refrain from part, relevant provides,
The ownership,” tient firearm and facil- practitioners care licensed health 790.338(6).3 (i) § intentionally enter” infor- “may not ities challenged provisions leading up passage 3. The full text of the During the debates Act, legislators cited several incidents. as follows: widely publicized incident example, For in a (1) practitioner A health care licensed un- Ocala, pediatrician, place in a dur- that took chapter or a [of Statutes] der Florida visit, patient’s ing a mother a asked routine facility chapter health licensed under care any kept firearms in her home. whether she may the Florida not inten- [of Statutes] question constituted Because she felt that tionally enter disclosed information con- privacy, the mother refused an invasion of her cerning ownership patient’s firearm into pediatrician then terminated to answer. practitioner medical record if the knows that relationship the mother that and advised pa- relevant to the such information thirty days had to find a new doctor. she safety, safety medical care or or the tient’s incident, separat- a mother was In another others. while medical staff ed from her children (2) practitioner A health care licensed un- the mother asked the children whether owned chapter facility der 456 or a health care li- another, physicians refused to firearms. In chapter respect pa- censed under 395 shall a provide nine-year-old "be- care to medical right privacy refrain tient’s and should [the wanted to know if child's cause making inquiry asking ques- from a written or family] Doc. had a firearm in their home.” concerning ownership a firearm tions example, legislator a at 3. In another by patient by family or ammunition a that, during appointment an with his stated patient, presence member of the or the of a legis- daughter, pediatrician asked that the private in a home or other domicile of gun his home. lator remove his patient. patient family or a member of reported complaint legislator Another Notwithstanding provision, a health care provider that a health care from a constituent facility practitioner or health care disclosing falsely firearm owner- told him that good faith believes that this information is requirement. ship At a was a Medicaid patient’s care 8, 2011, relevant to the or safe- hearing held the Florida March others, ty, safety Subcommittee, or the make such a Mar- House Criminal Justice inquiry.... verbal or written the National Rifle Association ion Hammer of (5) incidents, practitioner A health care licensed un- including reported several similar chapter facility der 456 or a health care li- family falsely involving a that had been one chapter may not censed under discrimi- by pediatrician’s office that Medic- advised against solely upon family based pay did not nate aid would not claims if patient’s questions regarding exercise of the constitutional answer firearm owner- possess ship. firearms or ammunition. own and
1205 provisions of the of the teenth Amendments of the United Violation States Constitution, for ac- grounds disciplinary Act constitutes seeking declaratory and and 456.072(2). 456.072(l)(nn). § § tion under injunctive relief. Plaintiffs contended that Furthermore, provi- of the “[violations the Act imposes unconstitutional, an con- (l)-(4) sions of subsections constitute tent-based restriction on speech, is over- disciplinary for action under grounds [Fla. broad, and unconstitutionally vague. 456.072(2) §§ Stat. and 395.1055.” ] September 14, 2011, On finding that 790.338(8). Thus, § if the Board of Medi- Plaintiffs likely were to succeed on the Department cine of the Florida of Health merits, the District preliminarily Court en (the “Board”) a practitioner finds that has joined enforcement inquiry, of the record- Act, practitioner violated the faces dis- discrimination, keeping, and harassment fines, including measures ciplinary restric- provisions Act, together of the with the fees, practice, probation, tion of return of provisions providing for discipline prac suspension and or revocation of his or her titioners who violate the Act. Wollschlae 456.072(2). § medical license. An investi- Farmer, ger 1367, v. F.Supp.2d gation culminating disciplinary action (S.D.Fla.2011) 456.072(1)(nn), §§ (citing may against practitioner by be initiated a (8)). (2), 790.338(1),(2), (5), (6), Department trig- of Health or 2, 2012, On June per District Court gered by complaint. § a citizen’s 456.073. manently enjoined enforcement of in 2, 2011, The minutes of a meeting June quiry, record-keeping, discrimination, and Rules/Legislative Committee of the provisions harassment togeth of the Board indicate that the Board is Act— prepared er disciplinary with the related provi to initiate disciplinary proceedings against holding, on cross motions for sum practitioner stating a who violates the sions— mary judgment, that all four provisions that “the Committee [has] determined Amendment, facially violated the First violation of [that] [the Act] falls under inquiry, record-keeping, comply legal obligation failure to with a provisions harassment were void disciplinary guidelines and the current for Farmer, vagueness. Wollschlaeger v. this violation apply.” would Doc. at 5. (S.D.Fla. F.Supp.2d 1267-69 6, 2011, days On June four after Gover- 2012) 456.072(1)(nn), (2), §§ (citing law, signed nor Scott the Act into Plaintiffs (8)). 790.338(1), (2), (5), (6), § filed a 42 against U.S.C. 1983 action The District found that State the United States District Court Plaintiffs Court Florida, standing for the had alleg- Southern District of sue because Plaintiffs ing inquiry, engaging that the were record-keeping, self-censorship dis- to avoid crimination, action, provisions potential disciplinary and harassment which consti- facially cognizable injury-in-fact violate the First and Four- tuted a that was (6) practitioner A care physician ques- health licensed un- decline answer chapter facility tions, der 456 or health care li- affirming that the-Act does not alter chapter respect pa- censed under 395 shall existing regarding physician’s law authori- legal right possess
tient’s to own or a firearm 790.338(3), (4), patients. § zation to choose unnecessarily and should refrain from harass- (7). appear challenge Plaintiffs do not ing patient ownership during about firearm and, provisions, these as the District Court an examination.... held, provisions apply because these do not § Fla. Stat. 790.338. practitioners regulate any or do not conduct provisions The Act also contains related by practitioners, standing Plaintiffs lack concerning emergency personnel challenge them. companies, affirming insurance ownership or vacy regarding their firearm Act and redressable
fairly traceable professions. and in the The Dis- use” Id. at 1258-59. by injunction. *11 claims Id. at 1265. held that Plaintiffs’ trict also Court delayed finding that review ripe, were Balancing physicians’ speech rights free Plaintiffs, who hardship would “cause interests in against legitimate the State’s engage self-censor- continue to would patient privacy regulating and protecting development factual that further ship,” and the District Court held professions, unnecessary. Id. at was of the issues scrutiny strict regardless of whether that — 1259. in- applied or some lesser standard —the discrimination, merits, record-keeping, quiry, the District Court Turning to the of the Act could not imposed provisions a content- harassment the Act found muster. Id. at 1265-67. speech pass constitutional practitioners’ based restriction found that the State Id. at 1261. The District Court subject of firearms. on the provide any evidence that the rejected the State’s had failed The District Court regarding per- confidentiality of information that the Act argument “constitute^] risk, ownership was at professional speech patients’ regulation missible imposed noting patient may simply that a decline to occupational conduct or information, provide at such and that state speech.” burden on Id. mere incidental that, pertaining un- federal laws to the confi- District Court noted 1262. The regu- dentiality provide of medical records ade- of the provisions “[s]uch like the quate protection patients. Id. at 1267 govern practice the access or lations Portability (citing Health Insurance profession; they prohibit do not burden or truthful, Accountability No. non-misleading speech within the Act of Pub.L. 104-191, (providing, among Id. 110 Stat.1936 scope profession.” things, confidentiality other of medical rec- then assessed the The District Court (same)). ords); § Fla. Stat. 456.057 With passing interests in State’s asserted regard professions, to the acknowledged that Act. The District Court District found that the Act lacked Court its protecting has an interest the State (internal specificity,” “narrow id. at right keep citizens’ Second Amendment omitted), marks the Act quotation because arms, found that such a and bear but directly targets speech merely rather than to the Act and therefore is is “irrelevant” imposing speech. an incidental burden on legitimate compelling not “a or interest for reasons, the Id. at 1266-67. For similar it.” Id. at 1264. District Court that the Act is District Court further found that, the State acted on the found because achieving not least restrictive means of anecdotal information and purely basis Thus, the State’s interests. Id. at 1267. provided no evidence that discrimination the District Court held that “balance ownership or harassment based on firearm tip significantly interests favor of safe- pervasive, the State does not have le- guarding practitioners’ ability speak gitimate compelling protect- interest freely patients.” to their Id. ing its citizens “from barriers to the re- The District also held that ceipt arising of medical care from Court [such] (inter- inquiry, record-keeping, and harassment discrimination or harassment.” Id. omitted). However, quotation provisions nal of the Act were unconstitution- marks regard ally vague. the District found that Florida has Id. at 1267-69. With Court inquiry record-keeping provi- to the legitimate “perhaps” compel- —but sions, District Court found that ling protecting patients’ pri- “in —interests relevant, suf- even when not provide merely standard” failed “relevance suggests physicians to what conduct the Act “should refrain” guidance ficient regard inquiring at 1268. With as to firearm prohibits. ownership. Id. 790.338(2). § provision, hortatory language, the District Court Such harassment argues, that the term “harass” has an ordi- the State does not constitute a noted clear, id., readily nary meaning physicians inquire. that is but mandate that must not ‘unnecessary argues, constitutes State because the Act “[w]hat anyone’s guess,” actually prohibit is left to id. does not in fact con- harassment’ in, that it engage at 1269. The District Court noted duct Plaintiffs wish to Plaintiffs *12 argu- standing challenge to address Plaintiffs’ lack did not need the Act because injury-in-faet. ment that the Act is overbroad because have not demonstrated Moreover, doing change argues, would not the outcome. an so State we have obligation at 1270 n. 7. Id. read as a mere rec- ommendation that physicians refrain from Thus, finding the District Court— inquiry record-keeping irrelevant and remaining provisions of the Act severa- firearms, in order to construe the granted Plaintiffs motion for sum- ble— Act as valid. mary judgment, granted part and in and part argues motion for sum- The denied State’s State also the District mary According- Id. at 1270. judgment.4 holding impos- Court erred that the Act ly, permanently facially en- District Court es unconstitutional content-based restriction, joined enforcing from the State the record- because the Act is a harassment, keeping, inquiry, professional and discrim- conduct that im- act, 790.838(1), § provisions poses ination speech, incidental burdens on (2), (5), (6), enforcing and from and because the discrimination and harass- 790.338(8), § provided provisions regulate to the extent that it ment conduct and can- 790.338(1) (2) § challenged that violations of and con- not be speech grounds. free action, ground disciplinary imposes stitute for and Even if the Act than an more 456.072(l)(nn), § speech, to the extent that it incidental burden on ar- State (2), 790.338(1), § gues, upheld vided that violations of the Act should be as a valid (5) (6) grounds disciplin- and constitute for restriction on commercial because ary narrowly action. Id. the Act is to further tailored governmental pa- substantial interests in 30, 2012, July appealed On the State privacy, protecting tient Second Amend- judgment. District Court’s The State con- rights, preventing ment barriers for fire- tends that the District erred in hold- Court care, arm owners to receive medical and ing justiciable, Plaintiffs’ claims because preventing harassment and discrimination prohibit physicians the Act does not from firearm-owning patients. asking patients ownership, about firearm providing safety counseling, firearm or re- The further contends that the Dis- State cording concerning patients’ holding inquiry, information trict Court erred ownership. argues record-keeping, provisions and harassment State physicians may engage unconstitutionally vague in such conduct of the Act be- care, patients’ plain meaning reading when it is relevant to and cause a of the Act’s 790.338(3), (4), (7), finding § granted practitioners, 4. The District Court the State’s mo- standing challenge summary judgment respect lacked tion for with that Plaintiffs’ provisions apply provisions. Wollschlaeger, of the Act that neither these practitioners regulate any F.Supp.2d nor conduct at 1258. accomplishing the means of what con- restrictive reasonably clear terms makes objectives. argue Plaintiffs also State’s ar- Finally, the State prohibited. duct is unconstitutionally vague Act is because Act is not overbroad gues that the does not define “rele- because the statute record-keeping provisions and inquiry record-keeping inquiry vant” in unconstitutionally prohibit do not not define “unneces- provisions, and does and harass- discrimination and the speech, Fi- or “discrimination.” sarily harassing” indistinguishable ment provisions the Act is overbroad nally, argue, Plaintiffs such statutes antidiscrimination legitimate physi- a wide because it affects swath Rights Act of of the Civil as Title VII patients, daily cians’ interactions (1976), and §§ 2000e-2000e-17 42 U.S.C. in- even consented-to appears preclude Act of with Disabilities the Americans of information re- recordation quiries and (1994). §§ 12101-12213 42 U.S.C. Thus, Plaintiffs con- garding firearms. contends, the District the State tend, affirm the District Court’s we should summary judg- granting erred Court judgment Plaintiffs grant summary the en- enjoining for Plaintiffs ment injunction against en- of an issuance of the Act. forcement of the Act. forcement *13 the District Court argue Plaintiffs that justiciable. held Plaintiffs’ claims properly II. self-censorship that their contend Plaintiffs a court’s review district We injury-in-fact be- cognizable a constitutes summary judgment de novo. grant in that is they engage cause wish Inc., 506 F.3d Cooper Lighting, Thomas v. by the forbidden the arguably at least (11th Cir.2007). 1361, “Summary 1363 arguably provisions are least challenged no judgment appropriate when ‘there is probabil- is some minimal vague, and there ... of material fact and genuine issue if will enforced ity provisions that a is entitled to a moving judgment party ” Plaintiffs violated. contend (quoting matter of law.’ Id. Fed.R.Civ.P. in- language of Act’s “should refrain” 56(c)). fact genuine issue of material A may interpreted not be quiry provision is such that a rea exists “if the evidence physicians discipline hortatory when face could return a for the jury sonable verdict violation, provision and when the nonmoving party.” United States v. Four its 1428, Prop., that would be Real 941 F.2d 1437 a safe-harbor clause Parcels contains Cir.1991). (11th making “In determi if were read as provision irrelevant nation, record, drawing all review Thus, we argue Plaintiffs hortatory. light in most inferences reasonable standing. have nonmoving party.” Da favorable merits, argue Plaintiffs On the Fla., Fleming Supermarkets v. mon regula- as a properly Act is not understood Cir.1999). (11th 1354, Inc., F.3d 1358 196 conduct, be- professional tion of questions review de novo concern We also challenged provisions were cause all four subject jurisdiction, matter such as ing our to—and were intended response in enacted Basham, v. standing ripeness. Elend regarding prohibit —communications (11th Cir.2006). 1199, 1204 471 F.3d contend, safety. Plaintiffs impermissible viewpoint-dis- an the Act is III. subject criminatory speech, restriction A. justified scrutiny, which cannot be to strict interests, by proffered find that the District Court any of the State’s We that Plaintiffs’ are properly least held claims any case is not the which In justiciable. standing, mounting order to have “a In a facial challenge to the Act, however, present injury claimant must an sought Plaintiffs a First concrete, particularized, actual im- Amendment defense to action brought minent; fairly against physician traceable the defendant’s based on speech tar- behavior; challenged likely geted by to be re- the Act. The State contends that ruling.” dressed a favorable Davis v. proper vehicle for Plaintiffs’ First Comm’n, 724, 733, Fed. Election 554 U.S. Amendment defense is a live proceeding 2759, 2768, brought words, L.Ed.2d 737 under In the Act. other (2008). However, “[sjtanding arguing is not dis- that Plaintiffs’ facial challenge is Rather, pensed gross. plaintiff justiciable, must the State is saying standing demonstrate for each claim he Plaintiffs must wait until they have been seeks press subjected and for each form of relief to discipline pursuant to the Act. sought.” that is Id. at 128 S.Ct. at resolving Crucial to standing (citations omitted) (internal quotation question is the nature of Plaintiffs’ claims. omitted). marks controlling law, “Under apply case we outset, injury-in-fact At requirement loosely we note that most Plaintiffs’ where First challenge rights First Amendment to the Act in volved, lest free equivalent be viewed as the functional be chilled even of a before the law or argument First Amendment raised as is enforced.” Bar, an affirmative Harrell v. The Fla. hypothetical defense 608 F.3d (11th Cir.2010) brought against physician (citing case for asking Hallandale 'l questions Fighters irrelevant Fire Local 2238 v. City about firearms con- Prof *14 Hallandale, (11th trary good practice. to A 922 F.2d physi- Cir. 1991)). cian could raise such a in defense a disci- plinary proceeding brought under the Act Plaintiffs’ alleged injury sole self- conduct, or, matter,
for such for that in a censorship, may cognizable a which be in malpractice brought action court for jury-in-fact standing for purposes. See id. such example, conduct. For a patient (“[I]t is well-establishéd that ‘an actual could file a alleging physi- lawsuit that a injury can exist plaintiff when the is chilled malpractice cian committed by unnecessar- exercising her to free expres ily harassing patient about firearm forgoes sion or expression order to ownership just patient as a could poten- — ” consequences.’ (quot avoid enforcement tially file a lawsuit alleging physi- that a Cole, ing Pittman v. 267 F.3d cian malpractice by committed unnecessar- (11th Cir.2001))). ily harassing other topic. The physician could choose to admit For their First Amendment claims, to purportedly harassing speech cognizable and to establish a self-cen plead the First Amendment an sorship injury, that, as affirma- Plaintiffs “must show defense, (1) tive' contending effect that the as a result of expression, desired [their] rejection court’s of the [they affirmative defense prosecution; were] threatened with (2) (3) would constitute state action in violation of prosecution likely; or is a there Indeed, leaving Constitution. aside prosecution.” credible threat of Id. at Act, (internal omitted). a physician facing malpractice lia- quotation marks bility professional for a wide swath of ac- To establish that there is a threat credible tivity involving speech theoretically prosecution, could Plaintiffs must demon raise a First “first, [they] Amendment defense. strate: that seriously wish[ ] alcohol, tobacco, home, swimming and is ‘at least expression engage Act, Plaintiffs passage After of the law,’ pools). by pertinent
arguably forbidden practice or eliminated this have curtailed second, is at least some there and facing discipline.5 for fear of challenged probability minimal if Id. violated.” will be enforced rules Plaintiffs have established omitted). (citations law challenged “If a that is at they engage in conduct wish enacted, if the recently or rule was Act. In by forbidden arguably least defending the chal- authority is enforcing medicine, preventative practice court, an intent rule in lenged law or and record questions to ask Plaintiffs wish inferred.” Id. at may be enforce the rule information as a mat regarding firearms 1257. particu making ter of routine —without that, part explain Plaintiffs determination of relevance —which larized care, physi- some practice preventative inquiry and recor- implies that some such they whether routinely patients ask cians the health will not be relevant dation verbally or via own firearms —either safety patients or others and thus and provide fire- questionnaire screening The Act prohibited by the Act. would —and larger of a safety counseling, part enacted, recently arm was and the State is counseling it, re- battery questions defending so we infer that there is safety (including, probability risks that the Act will garding least some health if violated.6 Plaintiffs chemicals in the be enforced example, poisonous pas- practice even after Complaint lays specifics of have continued this out the Plaintiffs’ regarding sage they good physicians’ practices of the Act because believe in individual inquiries safety counseling. questions For that such and information are firearm faith Act, However, example, prior passage of the Dr. patients' care. relevant to their complete Wollschlaeger patients to follow-up ques- asked his they asking now refrain from questions questionnaire included re- patients parents when or their seem tions routinely garding ownership, when, screening question, upset the initial orally they fire- whether owned asked prior passage of the would not present factors were arms if other risk Similarly, Dr. Gutierrez con- have refrained. —such home, patients had children in the as when patient questionnaire that in- tinues to use *15 addiction, depression, suffering were from ownership, question cludes a about firearm ideation, family envi- had an unstable suicidal asking any but has resolved to refrain from ronment, in a domestic- or were involved initially follow-up questions should safety provide firearm violence situation —to topic. appear discuss the Dr. disinclined to patient’s counseling to the circum- tailored previous practice of be- has ended his Sack Act, passage After of the Dr. stances. safety counseling by ginning his firearm ask- Wollschlaeger has removed the firearms-relat- ing patients they whether have a firearm in questionnaire questions and no ed from his However, the house. he has continued to longer orally questions regarding asks firearm counseling, framing provide safety firearm ownership part firearms as of or discusses his hypothetical pa- in terms not tailored his preventative counseling. standard circumstances. Dr. Fox-Le- tients’ individual has, Act, passage removed physicians party who to this vine since The other asking ownership practice questions regarding have limited their firearm suit providing counseling questions questionnaire, to ad- her intake but continues varying safety, do so to de- safety, firearm but still fram- patients vise some about firearm example, prior passage grees. For ing hypothetical her terms. advice Act, and Dr. Schectman rou- Dr. Schaechter provide 6. We note that the Act does not for tinely patients questions regard- asked their only disciplinary ac- penalties, but ing ownership entered in- criminal related Nevertheless, standing They by Board. for records. tion formation into their medical
1211 a cognizable discipline have established self-censor- for conduct may un- ship injury predictably for their First objectionable. deem Without determining, stage, claims.7 at this the ultimate
merits of
argument,
Plaintiffs’
we accept
For
Plaintiffs’
vagueness
language
point
Plaintiffs
to is at
claim,
establishing
the test for
a cognizable
arguably vague. Thus,
least
Plaintiffs
self-censorship injury is similar.
have established a cognizable
“[Plain
self-censor-
(1)
ship injury for
[they]
vagueness
must establish that:
claim.
tiffs]
seri
(2)
ously
[engage
speech],
wish[]
Plaintiffs claim
they
curtailed their
[speech]
arguably
such
would
be affected
inquiry
firearms
counseling
practices
rules,
by the
but the rules are at least
Act,
due to the
they
and that
would re-
[them],
arguably vague
they apply
practices
sume those
Thus,
but for the Act.
(3)
there is at least a minimal proba
Plaintiffs’ self-censorship injury
fairly
bility
enforced,
the rules will be
if
traceable to passage of the
and re-
(citations
they are violated.”
Id.
dressable
injunction. Accordingly,
omitted).
existence,
Notably, “it is the
standing.
Plaintiffs have
imposition,
require
standardless
(alter
injury.”
ments that causes [the]
Id.
The
argues
State
that Plaintiffs
original) (quoting
ation in
Legal
CAMP
lack standing with regard
inquiry
Fund,
Atlanta,
City
Inc. v.
Def.
provision of the Act because
provision
(11th Cir.2006)).
1257, 1275
F.3d
prohibits
fact
nothing at all.
claims,
State
Plaintiffs’
fear that
will
above,
For the reasons discussed
discipline
face
is not objectively reason
Plaintiffs have met
the first and third
Ga.,
able. See
v.
Wilson
State Bar
prongs.
regard to
prong,
With
the second
(11th
Cir.1998) (“A
F.3d
party’s
Plaintiffs
argue
it is unclear whether
subjective
fear that
prosecuted
she
be
inquiries
routine
and record-keeping re
engaging
expressive activity
for
will not
firearms,
garding
made
part
injury
be held to constitute an
standing
practice
preventative
medicine and not
purposes unless that fear
objectively
based
patients’ particularized
circum
reasonable.”). Under
proposed
the State’s
stances, qualify as “relevant” to health and
construction,
merely
recommends
safety, and that the law does not define the
that physicians “should refrain” from ask
“unnecessarily
terms
harassing” or “dis
ing questions about firearms unless rele
criminate,” leaving practitioners
vant,
without
hortatory
and that such
language
guidance as to what
pro
conduct the Act
does not
speech.
constitute
bar on
physicians may
subject
hibits and when
points
State
out that
Di-
Executive
*16
purpose,
disciplinary
may
speech.
the threat of
action
that
involve little to no
Never-
Harrell,
1248,
theless,
be sufficient. See
608 F.3d at
self-censorship
Plaintiffs claim
as a
(finding
attorney
standing
1260
an
had
challenged provisions
result of all four
of the
challenge
attorney advertising
the state bar’s
challenged provisions regulate
Act. As all four
rules,
consequence
noncompli-
when the
for
arguably
speech,
conduct that could
involve
action,
disciplinary
ance was
such as disbar-
only incidentally,
even if
this is sufficient for
ment).
not,
course,
standing purposes. We need
evaluate the merits of these claims at the
acknowledge
7. We
that the harassment and
standing stage.
provisions
partic-
discrimination
of the Act in
ular,
790.338(5)
(6),
§
prohibit
conduct
v.
targets.
Clapper
But
in a
duct the
Board stated
letter—
of the
rector
cf.
—
-,
U.S.
Amnesty Int’l
shortly
website
after
the Board’s
posted to
USA
(2013)
1138, 1143,
Act. Plaintiffs’ fear that inquiry provision under the discipline face Before addressing the State’s other ar- however, objectively guments, reasonable.8 we must evaluate the
Act in order to assess the interests at argues also that Plain State stake. The simple: essence the Act is standing regard lack to the rec tiffs with medical practitioners should not record in- Act ord-keeping provision of the because formation inquire or about fire- patients’ only proscribes entry of firearm infor arm-ownership doing status when so is not mation that is not relevant to medical care necessary providing safety, injury or and Plaintiffs claim no good medical care. The Act’s harassment arising from a wish to record irrelevant provisions and discrimination serve to rein- However, Plaintiffs claim an information. prohibitions. force these injury preventative to their practice arising being suggested by
medicine
from not
free to
As
complaints
every
legislature
prior
record the firearm information of
the Florida
received
patient as a matter of course. Some— passage
patients
are aware that
perhaps
majority
these records
physicians’ inquiries
answers to
will
—of
record,
will therefore be irrelevant to the care and
entered into their
be
medical
Thus,
safety
and others.
fear
their record will be shared
argument
unavailing:
parties, including,
example,
State’s
Plaintiffs with third
injury arising,
part,
claim an
from a government bureaucrats.10
need not
We
speculate
desire to record irrelevant information.
a patient may
the reasons
recommendation,
accept
argument
rejection
8.We do not
the State’s
mere
and our
construing
inquiry provision’s
argument
"should re-
the State's
does not alter the result
language
hortatory
standing inquiry.
frain”
would
of our
render
meaningless
portion
provision
al-
lowing physicians to nevertheless make fire-
appeal
9. The State
not renew
does
its
inquiries
doing
argument
ripe.
arm
when
so would be rele-
that Plaintiffs’ claims
safety.
Corley
vant to care and
See
v. United
we will not address the issue in detail.
States,
1558, 1566,
556 U.S.
(2009) ("[A]
have trust and de- status, physician is one of but we note tient firearm-ownership her consigns patient in which the pendence, concerned about might be patient a care, physician’s him—or herself to the information re- a disclosing physician physician to act with depends and private topics of when any number garding See integrity, fidelity, competence. and relevant to his or is not such information Ladd, Ethics: Who Knows For John Medical for similar reasons. care her medical (1980) 1127, Best?, The Lancet 1129 to disclose 316 may not wish example, patient a (“The awesome, affiliations, physician’s power is religious political or his or her Power, responsibility.... of power carries or bank account bal- preferences, sexual course, trust and confi- merely presupposes Act cir- physician. ance to a dence.”). unnecessary collection of cumscribes many poten- on one of
patient information course,” that “[o]f The Dissent states It does so as a means topics. tial sensitive their doc- patients are free not to answer ability to receive protecting patient’s of a if questions tors’ firearms without com- effective medical treatment In Dissenting op. not to. at 137. choose patient’s privacy with re- promising precedent hold- support, the Dissent cites matters unrelated to healthcare. gard to ing that residents who wish not to answer at their relationship, questions a from unwelcome visitors physician-patient In the “ protection’ from doorsteps ‘ample because there receive patient may protection need right to refuse to en- power patient ‘unquestioned of between [their] is an “imbalance ” —Inc., College Phy- gage.’ Sorrell v. IMS Health physician.” American (6th 2653, ed.2012), -, 2670, sicians, 180 Manual avail- U.S. 131 S.Ct. Ethics (2011) (quoting L.Ed.2d 544 Watchtower http://www.acponhne.org/running_ able at N.Y., Soc’y Bible & Tract Inc. v. Vill. praetice/ethics/manual/manual6th. Stratton, 168, 2080, a 536 122 S.Ct. htm#physician-patient. patient When U.S. (2002)). office, L.Ed.2d 205 But the de- physician’s enters reality knowledge assumption ignores and Dissent’s pends physician’s on the authority, patients examining that when physician’s submits to the some- rooms, they may feel vis-a-vis powerless on matters of life and death. It is times physicians in- patient may physicians. that a So when exaggeration no state firearms in essentially mercy quire presence at the about the some cases homes, such, may patients’ some feel physician. physi- of his or her As physicians that their demand an answer. great responsibility cians toward bear pass patient’s response. place our on the provider It is not health care share nor— n motivations, party. legislature’s Stat. records with a third Fla. wisdom contend, 456.057(7)(a). pa- § Plaintiffs stage the extent to which at this evaluate —to firearm-ownership that their sta- tients’ fears legislature’s the Act furthers the stated inter- parties are un- Dukes, tus will be shared with third City v. ests. See New Orleans unnecessary, founded and the Act is insofar as 2513, 2517, 297, 303, U.S. confidentiality purpose protect its (1976) ("[T]he judiciary may not L.Ed.2d 511 firearm-ownership patients’ status. superlegislature judge the sit as a wisdom desirability legislative policy Nevertheless, determina- legislature per- the Florida that neither affect funda- tions made in areas particular problem surrounding ceived a along suspect rights proceed ownership mental nor eliciting recording of firearm lines....”). by physicians, passed information *19 certainly free to Other modern ethical an individual models abound. While question posed by example, a an- For the American refuse to answer Medical Asso- (the “AMA”) ciation square, may physicians a invites public patient other pledge to a Declaration of ques- freedom when Professional not feel that same Responsibility, provides which that physi- her physician. tion comes from his or must, among cians things, other “[t]reat particularly This is true circum- injured competence the sick and with and patient in which a is especially stances compassion and prejudice” without and powerless physician. vis-a-vis his or her “[p]rotect privacy confidentiality in a rural example, patient may For area [they] those for whom care and breach only single physician. have access to confidence when keeping would option to seek treatment from Without seriously safety threaten their health and physician, a different and without the or that of others.” American Medical As- imposed by professional tections codes of sociation, Declaration of Professional Re- malpractice, conduct and the law of such a sponsibility: Medicine’s Social Contract patient phy- would have no recourse if the (2001), Humanity available http:// physician-pa- sician chooses to abuse the www.amaassn.org/resources/doc/ethics/ relationship way tient in some in- —for decofprofessionalpdf. by exploiting authority stance his or her Hippocratic As the Oath and the AMA’s personal for gain, over financial Declaration of Professional Responsibility advances, or, inappropriate to make sexual suggest, practice good medicine here, as we are concerned with to extract require should not inquiry private into information, reason, private for whatever inquiry necessary matters unless such patient’s unrelated to the medical care. practice for the of good medicine. What Thus, part protect at least in patients way protect patients’ privacy better physicians from position who abuse their inquire unnecessarily than to not about power, physicians long have been sub- private merely matters? The Act reaf- ject In to codes of conduct. Classical surrounding firms the boundaries what Greece, Hippocratic Oath—as it comes good practice by medical constitutes codi- today required physicians down to us — fying into proposi- law common-sense responsibilities by swearing affirm their tion, important purpose and serves the they uphold will a number of profes- protecting privacy rights standards, sional ethical including questions who do not wish to answer keep patients’ private will information private matters. irrelevant [patients] in confidence and “keep Edelstein, injustice.” Ludwig
harm and
gener
Insofar as Plaintiffs claim a
Text, Translation,
Hippocratic
The
Oath:
in being
speak freely
alized interest
able to
(1943),
Interpretation
available at
(if
patients,
to their
such conversation
not
care)
http://guides.hbrary.jhu.edu/content.php?
relevant
to medical
is outside the
pid=23699&sid=190555.
Today, most
physician-patient
boundaries of the
rela
graduating medical students swear to a
tionship.
insofar as Plaintiffs wish
Tyson,
modernized form of the Oath. Peter
keep
inquiries
to make
records re
(Mar.
Hippocratic
Today,
Oath
garding
ownership
PBS
firearm
as a matter of
27, 2001),
routine,
http://www.pbs.org/wgbh/nova/
to an
even when
relevant
indi
case,
body/hippoeratic-oath-today.html.
places
vidual
such
patient’s
subject
discipline
or
she
good
bounds of
conduct outside
liability making
exposed malpractice
that routine
recognizing
practice,
leading bioethicists
poor
decision. As
regarding
record-keeping
inquiries and
recognize,
prov-
not within the
ownership are
rather, perhaps,
medicine but are
ince of
profession
into the
of med-
[b]y entering
issues.11
law enforcement
*20
icine,
accept
responsibility
a
physicians
to their
specific
the standards
to observe
concern, then,
ultimate
must
Plaintiffs’
If their conduct falls below
profession.
may
where it
be
in the close case:
lie
standards,
negligent-
act
these
is rel-
inquiry
whether a firearm
debatable
[However,]
line between due
ly....
[t]he
care. At one
given patient’s
to a
evant
(that
care
which
inadequate
care and
extreme,
firearm-ownership
if a patient’s
due)
is often difficult
falls below what
patient’s
irrelevant
to a
plainly
status is
to draw.
care,
Act bars
it will be clear that
Childress,
extreme,
Beauchamp
F.
good
if
Tom. L.
& James
inquiry. At the other
Biomedical Ethics 154-55
Principals of
clearly requires inquiry
medical care
—for
ed.2009).
(6th
a physician’s
Whether
patient
in
of a suicidal
example,
case
—the
unnecessary inqui-
concerns
transgression
relevant
inquiry
will know that
physician
ry
record-keeping regarding private
thus not barred. The close case lies
anything else the State chooses
matters or
middle,
physi-
in
where a
somewhere
discipline, the law
grounds
to define as
for
may be forced to act without definitive
cian
statutory disci-
malpractice
or her
—and
as to whether or not his
guidance
measures the Board is authorized
plinary
good
falls
the bounds of
conduct
within
impose
specific profes-
for violations of
medical care.
standards —remain the same. Like-
sional
however,
problem,
unique
is not
This
Act,
wise,
challenge physi-
a
under
regarding
pro-
decision
physician’s
a
treating
patient
in
a
remains the
cian faces
firearm
under the Act.
priety
inquiries
professional
he or she must use
same:
continually make deci-
physician
A
must
judgment
to determine what constitutes
regarding
appropri-
what constitutes
sions
particular pa-
care for that
good medical
tient,
professional
accordingly.
ate care under the relevant
The Act
proceed
standards,
merely
privacy
one
re-
running
while
the risk that he
delineates
factor —
policies may
physician inquiries
We observe that these
11. Plaintiffs contend that
ownership comply
profes-
the AMA'sDeclaration of Profes-
firearm
with
conflict with
which,
noted,
standards,
Responsibility,
man-
even in situations
sional
sional medical
respect
patient privacy.
In
(presented by
practice
preventative
dates
for
case,
care)
may
inquiries may initially ap-
well-established that Florida
where
it is
such
safety.
regulate professional standards of medical
pear
to medical care or
irrelevant
regardless
including
of what
care within its
Several medical
borders—
associations —
See,
AMA,
party
medical associations
recommend.
and those associations that are
Barsky
Regents,
policies
physi-
e.g.,
v. Bd.
347 U.S.
that endorse
this suit—have
650, 654,
(1954)
L.Ed. 829
practice
asking questions and
cians’
See,
("It
power
counseling regarding
that a state has broad
viding
firearms.
is elemental
Association,
of conduct
to establish and enforce standards
e.g., Brief for American Medical
al.,
relative to the health of
Supporting
Amici Curiae
Plain-
within its borders
et
everyone
(citing
there.... The state’s discretion
tiffs/Appellees at 21-22
American Med-
H-145.990,
naturally
Policy
that field extends
Prevention
ical Association
health.’’).
Children).
professions
of all
concerned with
of Firearm Accidents
garding
ownership
physi- might
malpractice
face
liability
giving
for
—in
instructions,
patient improper
failing
cian’s calculation.
or for
provide
proper
instruc-
analysis
It
little to alter the
does
scenarios,
tions.
In all of these
a court
out a
singles
single
factor as
might hold a doctor liable for actions which
trigger
discipline,
for
nor that this factor
and,
given
action,
involve
such state
legislature
involves what the
considers ap-
presumably infringe the doctor’s First
propriate
physicians
to ask or record
mind,
rights.
With this
we
patients.
leaving
about their
Even
aside proceed to evaluate the Act’s constitution-
statutory disciplinary measures such as
ality.
physician may
liability
face
malpractice
state courts under
or tort law
C.
professional activity,
for a
wide swath
*21
necessarily
much of which
physi-
involves
We find that
the Act is a valid
Indeed,
speaking
failing
cians
or
to speak.
regulation
professional
of
conduct that has
routinely
giving
“doctors are
held liable for
only an
physicians’
incidental effect on
negligent
to
patients,
medical advice
their
speech.
such,
As
the Act
not facially
does
suggestion
without serious
that the First
violate the First Amendment.12 To define
protects
right
give
Amendment
to
good
the standards of
medical practice and
advice that is not consistent
ac-
with the
provide for administrative enforcement of
cepted
of care.” Pickup
standard
v.
those standards is
within
well
the State’s
Brown,
(9th Cir.2014).
1208,
long-established
740
authority
regulate
F.3d
1228
to
professions.
generally Barsky
See
v. Bd.
For example,
may
doctor
not coun-
“[a]
442, 449,
Regents,
650,
347
74
U.S.
S.Ct.
of
rely
sel a
to
quack
on
medicine.
(1954)
654,
(holding
doctor face malpractice liability for communicating diagnosis an inaccurate Moreover, above, as discussed patient, failing timely or for communi- as Justice White observed Lowe v. S.E.C., diagnosis. cate an accurate A doctor power government reg- of “[t]he that, 12. We note stantially person may insofar as individual Plain- affected seek a declara- particular prac- tiffs are concerned that their tory regarding agency’s opinion statement an asking questions tice of about firearm owner- applicability statutory provision, as to the a of ship providing individualized firearm any agency, or of rule or order as it (in safety counseling they the manner that did applies petitioner’s particular to the set of prior passage) Act’s constitutes “close 120.565(1). § circumstances.” Fla. Stat. case,” they advisory opinion seek an not, however, challenge Plaintiffs do from the Board to determine whether conduct, applied specific here as to their but discipline engaging prac- will face in that argue rather that the Act is invalid on its face. provides "[a]ny tice. Florida law sub- 1218 the con- is incidental to sional’s is not lost whenever professions
ulate the
profession....
Where
speech.”
entails
duct
profession
of a
practice
2557, 2582,
professional and
181, 228,
personal
86
nexus between
105 S.Ct.
472 U.S.
(1985) (White, J.,
exist,
speaker
does
concurring
does not
client
L.Ed.2d 130
result). Rather,
exercising judgment
purport
statute
not
to be
“[a]
in the
occupation
any particular
of an
individual
practice
on behalf of
governs
abridgement of
directly
as an
he is
unconstitutional
with whose circumstances
long
so
speech,
regulation
to free
ceas-
right
acquainted, government
merely the inci-
legitimate regulation
inhibition
es to function as
an otherwise
observing
effect of
practice
dental
incidental
professional
Shore,
v.
regulation.” Locke
legitimate
impact
speech;
becomes
(11th Cir.2011)
1185,
(quot-
1191
such,
F.3d
speaking
publishing
sub-
Bowman,
Soc’y. Va. v.
Accountant’s
ing
ject to the First Amendment’s command
Cir.1988)
(4th
(relying on
F.2d
...
“Congress shall make no law
reasoning
up-
in Lowe to
White’s
Justice
speech, or of
abridging the freedom of
restricting
statute
use
hold a state
press.”
product
per-
terms
the work
certain
Lowe,
at 2584
472 U.S. at
ac-
public
licensed as certified
sons not
(foot-
result)
(White, J.,
in the
concurring
countants)).
Locke,
omitted);
F.3d at
note
see also
*22
(“There
difference,
for First
1191
matter,
course,
general
As a
of
purposes,
regulating
between
Amendment
immune
by professionals is
speech
speech
public
large
to the
at
professionals’
of the First Amend
protections
from the
direct, personalized speech
versus
See,
It,
e.g., Fla. Bar v. Went For
ment.
Lowe,
232,
(citing
472 U.S. at
with clients.”
Inc.,
634-35,
2371,
618,
515
U.S.
(White, J.,
in
concurring
1219
It, Inc.,
For
515
at
judgment
to offer.” Went
U.S.
on behalf of the
in light
client
of
(citing
circumstances,
ing
provision
Pennsylvania
that a
of a
stat
speech, it does so where the “personal
ute requiring
providers
health care
to in
professional
nexus between
and client” is
availability
form
of the
of certain
perhaps
significant:
at its most
within the
regarding
information
abortion and child
physician’s
confines of the
examination
prior
obtaining
birth
an abortion
awas
room,
physician
where the
exercises his or
valid
practice
of medicine
judgment
her
professional
to deliver
treat
physicians’
and so did not violate
First
particular
ment and advice to a
patient,
speak).13
not to
patient’s
tailored to that
personal circum
example,
applied
For
in Locke we
Jus-
stances,
Lowe,
private.
See
U.S.
tice White’s framework in Lowe in uphold- 232,
(White, J.,
ed the
provi
record-keeping
Act’s
records that
ing purposes
pharmacy
sion, 790.338(1),
similarly
regu
§
a valid
practices of individual
prescribing
reveal
too,
conduct. Here
professional
lation of
regula-
imposed a content-based
doctors
regulates
aspect
making
Act
one
and,
expression,
applying
protected
tion on
physi
confines of the
of records within the
scrutiny,
the stat-
heightened
struck down
relationship. A medical rec
cian-patient
ute. Id. at 2672.
merely
writing
ord is
a reduction
Sorrell,
note, however, that in
We
of his
course of treatment
physician’s
manner
question
restricted the
statute
profession
his or her
patient,
her
based on
pharmacies
in which
could disseminate
patient’s
tailored to the
judgment,
al
or use
parties
records
third
business
Thus, to the ex
personal circumstances.
way
involved communicat-
them a
which
im
record-keeping provision
that the
tent
parties.
their contents to third
In
ing
speech,
non-public, personal
it is
plicates
contrast,
clearly prohibit
Act
does
physician
made
ized
information. Plain-
the dissemination of
using
professional
his or her
course
infor-
entering
characterize the act of
tiffs
particular patient.
judgment to care for
patient’s
mation in a
record as “communi-
Accordingly,
making
as the
of med
insofar
cating writing
patient’s
current
speech aspect,
ical records has a
also
Br.
care-providers.”
future
Plaintiffs’
where the
nexus between
“personal
occurs
However,
whatever communicative
sig
is at its most
professional and client”
is,
records serve with
function medical
nificant,
may regulate
*24
and so the
within the
exception,
limited
contained
of the
Amend
running
without
afoul
First
not, of
profession physicians
do
232,
Lowe, 472
at
105
ment. See
U.S.
—
course,
public
make medical records
(White, J., concurring in
at 2584
S.Ct.
Moreover,
health care
consumption.
what
result).
is,
providers may do
medical records
See,
course,
regulated.
already highly
acknowledge that a business’s
We
Portability and Ac-
e.g., Health Insurance
categori
are not
record-keeping activities
1996, Pub.L. No. 104-
countability Act of
cally
protections
excluded from the
Stat.1936;
Thus,
191,
§
out,
456.057.
point
First Amendment. As Plaintiffs
Inc.,
The
reasoning
inapposite.
of Sorrell
Supreme
Health
in Sorrell v. IMS
safety.
per-
not a
about firearm
pamphlet,
speaking to a
son who is
publishing merely recognizes
good
provisions private,
medical Act’s other
personal
—
speech
physician
ized
between a
require
keeping
pa
does not
practice
tient, involving
physician’s
professional
Any burden the rec-
irrelevant records.
judgments
patient’s
and tailored to the
may place
physi-
on
ord-keeping provision
course,
individual circumstances. Of
ha
ability to create information in the
cians’
rassing speech may in
pro
some cases be
form of medical records or to communicate
by
Amendment,
tected
the First
such as
such information to other health care
speech
when such
in public place
is made
regulation
viders is incidental
the Act’s
regarding
public
a matter of
concern. See
practice
of the
of medicine.
—
Snyder
U.S. -,
Phelps,
v.
(2011)
1207, 1219, 179L.Ed.2d 172
(holding
provision,
The Act’s discrimination
that picketers
military
at
funerals who
790.338(5),
regulates professional
§
also
signs
held
communicating their belief that
the physician-patient
conduct within
rela
God hates the United States for its toler
Although physician
tionship.
discrimina
homosexuality
ance of
were shielded
potentially
tion could
involve
speech,
the First Amendment
liability
from tort
balance discrimination involves conduct.
activity
because this
constituted
in
speech
pro
To
extent
the discrimination
public place
“a
on a
public
matter of
con
prohibit
involving phy
vision does
conduct
cern”). Although
accept
we
that firearm
analysis
the same
speech,
applies
sician
as
safety may
concern,
public
be matter of
place
private physician-
to its
within the
reasoning
Snyder
inapposite
patient relationship,
“personal
where the
of a regulation
professional
context
professional
nexus between
and client” is
provides
privacy
conduct that
that the
aof
Lowe,
strongest.
its
at
See
U.S.
physician’s
ap
examination room is not an
232,
(White, J.,
plain,
451,
ir-
or the
at
at 655.
incompetent,
Barsky,
the
347 U.S.
S.Ct.
untrustworthy,
repre-
unauthorized
against
although
responsible,
Casey,
Supreme
the
In
Court —
Collins,
v.
Thomas
agency.”
of
sentation
nexus”
invoking
“personal
without
315, 329,
516, 545,
65 S.Ct.
323 U.S.
in
set
forth
Justice White’s
framework
(1945) (Jackson, J., concurring).
L.Ed. 430
by this
applied
Lowe concurrence
contend, the Act di-
contrast, Plaintiffs
In
statutory provi
upheld
in
Court
Locke —
targets physicians’
rectly
directly regulated
physicians’
sion
restriction can-
any speech
and so
firearms
patients
regu
as a valid
conversations with
merely incidental.
not be
Casey,
practice
of the
of medicine.
lation
884, 112
(plurality
at 2824
505 U.S. at
S.Ct.
However,
is well-established
that a
are not convinced
opinion).16 We
for main
legitimate concern
“that a state’s
requirement
is the
form of
licensing
con-
professional
of
taining high standards
practice
ship
part of the
of medicine”
say
their
"as
regulate
physicians
what
Amendment,
violating
First
see id.
without
practice
part
of medicine.”
“as
884,
(plurality opinion)
at 2824
at
112 S.Ct.
884,
opin-
(plurality
at 2824
112 S.Ct.
—(cid:127)
U.S.
here,
own,
despite
applies
stands on its
ion).
in more
Finally, as we will discuss
inquiries
prohibits
the fact that the Act
detail,
already drawn a
Circuit has
the Ninth
information,
record-keeping about irrelevant
reasoning
White’s
in Lowe to
line from Justice
requires discussion of relevant
rather than
provision
Supreme
the informed consent
Pennsylvania
information. That the
statute's
Casey,
upheld
and invoked this rea-
Court
in
provision required
dis-
consent
informed
direct-
soning
upholding a state statute that
truthful, non-misleading informa-
closure of
physicians may say
ly regulates
what
physicians’
tion and did not interfere
Brown,
1208,
patients.
Pickup v.
740 F.3d
See
not,
suggest,
judgment
Plaintiffs
was
Cir.2014).
(9th
1227-29
Court’s determination that the
basis for the
provision did not violate the First Amend-
course,
upheld
Supreme Court
16. Of
Rather,
considered these fac-
ment.
the Court
provision
Pennsylva-
informed consent
respectively,
determining,
that the stat-
tors in
Casey
on several other
nia statute at issue
impose
ute did not
an undue burden with
grounds, including
the information the
abortion,
regard
obtaining
and did not
an
requires physicians
provide re-
provision
pri-
constitutional
with a
"interfere[]
garding
and childbirth is truthful
abortion
vacy
pregnant
woman and her
between
non-misleading,
provision fur-
that the
physician.” Id. at
1223
may validly
at issue
professional
place
there took
“with-
professional speech.
on
touch
in the
professional
confines of a
relation-
ship.”
Citing
Id. at 1228.
reasoning
Brown,
Pickup
In
v.
the Ninth Circuit
concurrence,
of Justice White’s Lowe
Casey together
invoked
with Justice
Ninth Circuit noted that:
in rejecting
Lowe concurrence
a
White’s
Outside the professional
challenge
relationship,
First Amendment
to a statute
directly regulated
requirement
what a healthcare
such a
would almost cer-
may say
patient.
to a
provider
Pickup,
tainly be
impermissible
considered
com-
Pickup, plain-
including revocation
his or her treat-
smoking
part
as
cease
patient
that a
recommending
cense—for
patient.
ment of that
holding
marijuana,
use medical
protected
expression
interfered
policy
Thus,
the Ninth Circuit chose
although
v.
Conant Wal-
Amendment.
by the First
the recom
bright
a
line between
to drawn
Cir.2002).
(9th
ters,
309 F.3d
the ther
at
in Conant and
mendation
issue
Pickup,
in
we do not find such
apy at issue
Ninth Circuit distin-
Pickup,
In
physician’s inquiry
A
about
a line here.
Conant,
in
by noting that
guished Conant
patient’s
in a
presence
of firearms
physicians recom-
against
policy
it was the
opening
salvo
may be viewed as
home
the First
marijuana that offended
mending
by
raised
attempt
in an
to treat
issues
Pickup,
the line
treatment and communi-
between
Furthermore, unlike the state statute at
necessarily
cation about treatment
(and
upheld
Pickup),
the one
issue here
cases,
In
medical treat-
so clear.
some
policy
pur-
a federal
Conant involved
when,
may occur
for exam-
ment —such as
conduct, and
ported
regulate physicians’
attempts
help patient
a
ple, physician
against
upholding
injunction
an
enforce-
begin
inquiry
with an
smoking may
cease
—
the Ninth Circuit took
policy,
ment of the
(“do
smoke?”),
you
followed
recom-
primary
that “states
[are]
into account
counseling
amount of
mendation and some
conduct.” Co-
regulators
professional
(“you
smoking
smok-
quit
should
because
nant,
their nor infringes on rights patients those who would welcome infor- Moreover, the Dissent’s assertion mation on safety. firearm that the Act violates the First Amendment because it targets prohibits physicians’ For the reasons, same we re
speech on the topic is actually firearms ject argument Plaintiffs’ the Act is plain belied language of the Act overbroad. “In the noted, itself. First As Amendment long so physicians as do context, ... a not ask law be questions irrelevant invalidated as overbroad if ownership, their ‘a substantial number of Act nowhere its prohibits physicians applications unconstitutional, are discussing judged fire in safety arm patients, relation except in plainly statute’s legitimate ” case where such sweep.’ firearms counseling Stevens, United States v. 559 might rise to the level of unnecessary 460, 473, U.S. 1577, 1587, 176 conclusion, reaching not, 17. In this we as as a law barring doctors from —such claims, the Dissent declaring "a category new discussing the Affordable Care Medi- immune from First Amendment re- care/Medicaid, laws, malpractice Dissenting view.” op. at 1237. As discussed any topic other avoid First Amendment —will above, III.B, supra see section holding our scrutiny long so as the law applies within the simply recognizes may -just that a state as it — confines of a professional one-on-one rela- routinely does state court malpractice and tionship. We note that the does not ban discipline tort impose physician a on actions — any topic, discussion of but irrelevant for activities the state bad deems medi- inquiry, record-keeping, and related harass- cine even when those activities involve the case, ment and any discrimination. In we physician speaking, and that when a state must decide case does so the based First Amendment facts be- generally does us, provide physician indeed, doing fore with a so we shield. need not— we, Neither are we speculate as the must suggests, Dissent to the constitution- not— creating whereby rule burdening ality law hypothetical laws. 1226 (White, J., concur 232, 105 at 2584 S.Ct. State (2010) Wash. (quoting 435
L.Ed.2d result). in the Party, ring Republican State v. Wash. Grange 1184, 170 6, 449, 128 442, n. S.Ct. 552 U.S. conclusion, note we reaching this In (2008)). “The overbreadth 151 L.Ed.2d First curtailing Plaintiffs’ are not we generally ‘strong medicine’ doctrine remain free Plaintiffs rights. re- a last ‘only as administered should an affir- First Amendment to assert (quoting Locke, at 1192 F.3d sort.’” brought any proceeding mative defense Williams, U.S. v. States United made upon speech based them against 1830, 1838, 170 L.Ed.2d S.Ct. *29 that fell outside of treatment the course (2008)). re- By care. good the bounds challenge facial jecting Plaintiffs’ is over- that Act that argue Plaintiffs refusing provide simply are we every practi- regulates it broad because such a that a declaration firearms, Plaintiffs subject of the speech on tioner’s be successful. defense will even consented-to preclude and appears fire- record-keeping regarding or inquiries Court the District Thus, hold that we discussed, However, the Act as arms. facially Act vio- finding that erred inquiries and relevant prohibit does not the First Amendment. lates may legiti- the State record-keeping, medicine to practice of regulate the mately D. record- inquiries and irrelevant
exclude profession- Act “is Because keeping. is not that the Act also find We ef- merely incidental awith regulation al “[t]he Under unconstitutionally vague. say cannot we speech, protected fect on doctrine[,] ... ‘a stat void-for-vagueness are sub- applications impermissible that its requires either forbids ute which legitimate plainly its relative to stantial vague so act in terms doing an not over- the Act is sweep.” Id. must nec intelligence of common [persons] broad.18 meaning and differ at its essarily guess essen the first application, violates to its claims we find Plaintiffs’ Accordingly, ” Harris v. law.’ process of tial of due facially First violates Act Inc., Foods, F.3d 564 Specialty Mexican The State merit. without Cir.2009) (third (11th alteration 1301, 1310 of medi practice validly regulate may Jay v. U.S. (quoting Roberts original) Any privacy. protect patients’ cine to 3244, 629, 609, 104 cees, S.Ct. U.S. 468 place takes reaches (1984)). Thus, a 3256, L.Ed.2d 462 82 physi confines within the entirely if “it unconstitutionally vague statute is “per relationship, where cian-patient the con as to public uncertain leaves the professional and nexus between sonal ju judges and or leaves it prohibits duct entirely inciden so is strong, and client” is decide, any legally without rors free physicians’ Act’s tal to the standards, prohibited Lowe, what fixed 472 U.S. See conduct. professional as Title regulations such holding, antidiscrimination we it not alter our would Because 1964, 42 U.S.C. Rights ofAct VII of Civil argument the State's not address need (1976), Ameri- and the §§ provisions 2000e-2000e-17 and harassment the discrimination 1990, 42 U.S.C. Act of Disabilities cans with these Act are not overbroad because (1994). §§ 12101-12213 indistinguishable from valid provisions are 1227 what is particular each case.” Giac lief that the information later become cio v. Pennsylvania, 402-03, (such 382 U.S. relevant practice of preven- 518, 520-21, medicine) S.Ct. tative L.Ed.2d 447 satisfies the requirements (1966). of the Act. Plaintiffs that, contend because
a reading that information about firearms matter, As an initial we always note relevant would render the Act that the provides only for penal civil meaningless, physicians reasonably fear ties in the form of disciplinary action that the Act requires higher, some unspec- the Board&emdash;physicians do not ified face criminal level of Davis, relevance. See In re penalties (11th Cir.2009) (“We Act’s F.3d violation. “The Su preme cannot Court has warned read against statutory language me in way chanical renders application wholly vagueness doctrine, meaningless or non- sensical.”). emphasizing that ... should there ‘greater tolerance of enactments with civil We find plain recourse to meaning re- rather than penalties criminal because the solves the issue. “Relevant” means “[r]e- consequences of imprecision qualita *30 lated to the hand; matter at to the point; ” tively Harris, less severe.’ 564 F.3d at pertinent.” American Heritage Dictionary 1310 (quoting Vill. Estates v. of Hoffman English (William the Language 1098
Flipside, Estates, Inc., 455 U.S. Hoffman Morris, ed., 1969). An ordinary person of 489, 498-99, 1186, 102 1193, S.Ct. 71 common intelligence need guess not toas (1982)).19 L.Ed.2d 362 the meaning of the term. It is apparent that the Act’s relevancy standard only argue
Plaintiffs
that
the record- vague insofar as “relevancy” is necessarily
keeping and inquiry provisions
basis&emdash;that
determined on
case-by-case
a
790.338(1),
§
(2),
vague
because the
is, whether information is related
the
Act
provide
does not
sufficient notice as to
matter
hand depends entirely on the
when record-keeping or inquiry regarding
specifics of the matter at hand. A reading
firearms
“relevant” to medical care or
that firearms information is
relevant
safety. Plaintiffs note that the Act does
every
would,
case
indeed,
inqui-
render the
not specify
physician
a
whether
must make
ry
record-keeping
provisions superflu-
particularized
a
finding of relevance for
ous,
problem
this
easily
but
avoided
patient
each
or whether a physician’s gen
adhering to a plain-meaning construction
eral belief that firearms are always rele
of relevancy
determination,
as an ad hoc
suffice,
vant will
and does
specify
not
if a
requiring a physician to base his or her
physician must believe that firearm infor
calculation as
the relevancy
pa-
of a
mation is relevant at the time of inquiry
tient’s firearms ownership
partic-
status on
and record-keeping,
good
or if a
faith be- ularized information about
patient. By
point
Supreme
Plaintiffs
out
apply.”
Court
Vill.
v. Flipside,
Estates
Hoffman
has
that "a
regulation
held
Estates, Inc.,
489,
content-based
499,
455 U.S.
Hoffman
speech ...
special
1186,
raises
1193-94,
First
(1982).
S.Ct.
L.Ed.2d
However,
concerns because
its
chilling
obvious
effect
the Act
because
is not a content-
speech."
on free
v.
Reno Am. Civil
Liberties
based
regu-
but rather a
Union,
844, 871-72,
521 U.S.
professional
lation of
only
conduct that
inci-
Thus,
(1997).
employing that, out point Plaintiffs the free- “discrimination.” physicians Act provides passage,20 informa- record of the Act’s inquiries given context to make dom doing so prohibit whenever provision firearms regarding might expect tion one medi- good practice part of his or her terminating would be physician a cine. patient’s based on patient care of a about questions to answer refusal record-keeping under the example, For another, unchallenged ownership, but recordation of prohibits provision, explicit makes it of the Act provision physician if the firearm information rule that a alter the not does rele- is not the information “knows” that ser- providing cease is free to physician 790.338(1). simply means This § vant. any reason. See a for vices to patient’s record may not physician 790.338(4) (“A not to patient’s § decision physi- firearm-ownership status unless relating presence question answer of some knowledge that —because has cian alter does not of a firearm ownership or the indi- information particularized au- regarding physician’s existing law pa- example, that patient, vidual patients.”). his or her to choose tendencies-— thorization has violent tient is suicidal contend, per- are left firearm-ownership physicians status Plaintiffs patient’s safe- care or prohibited patient’s activity tains to the would guess what Therefore, the safety of others. ty, or the provision. discrimination by the vague. record-keeping provision is the District Court agree with We rele- inquiry provision’s key ordinary an has the term “discriminate” *31 be- a must physician is that vancy clause readily persons to that is clear meaning that firearm owner- faith” “good lieve context, “dis- In intelligence. this common to medical is ship relevant information the basis of act “[t]o criminate” means on 790.338(2). Thus, phy- a § safety. care or Dictionary Heritage American prejudice.” inquiries firearms may make sician at supra, 376. English Language, of the or she does long as he so patients, or all so the dis- reading, plain-meaning Under on the faith belief—based good with the simply of the provision crimination case—that the patient’s the specifics a may provide not physicians means patient’s is inquiry relevant basis of care the level medical on lower If, safety of others. safety, or or the care Al- firearm-ownership status. patient’s a seeks firearm physician the example, for may vary physi- though particulars the —a unrelated to agenda to suit an information against firearm- cian could discriminate safety, he she would not or or medical care making by, example, owning patients “good inquiry, faith” so making a time for an excessively long wait an them refrain from directs him to plainly equal them by refusing or appointment, Thus, provision inquiry the is inquiring. specialists— for referrals opportunities vague. not sufficiently provision is the discrimination they may physicians that apprising clear in the discrimi argue that Plaintiffs with firearm-owning patients 790.338(5), Act, provide § is provision of the nation pa- the patient a because care of terminated point out that the particular, In Plaintiffs pediatri- refused to answer response tient's mother large part passed in Act was in ownership. regarding questions cian's pediatrician in Ocala which incident less medical than care would other to attempt tion speak to the patient patients, in any circumstances. about firearm ownership when not rele- provision discrimination of the Act is not vant medical safety. care or Like the n vague. provisions Act, other the harass- provision
ment targets physicians who Plaintiffs Finally, argue to pursue wish an agenda unrelated to harassment provision medical care or safety. 709.338(6), § vague because the Act does Although the District Court found that not define “unnecessarily harassing.” the modifier “unnecessarily” rendered the Plaintiffs that patients may contend hold harassment provision vague, disagree. we diverse views as to what constitutes unnec The modifier in fact allows physicians the essary harassment. argue Plaintiffs freedom to challenge i.e., pa- — “harass” — what prohibited conduct is thus depends tients regarding firearms when doing so particular what a patient understands it necessary for health safety reasons, be, and that the resulting uncertainty as if the patient even might find physi- to what the Act prohibits permissi “is not cians’ advice unwelcome. For example, if ble under the First Amendment.” See patient suicidal, physician Conant, 309 F.3d at (holding a statute wish to attempt persuade the patient providing for against administrative action to remove firearms from patient’s
physicians
engage
who
in speech that “the home,
if
even
patient
initially objects.
to be a
believes
recommendation of
if
Even
the patient considers the physi-
marijuana”
requisite
lacks the
narrow
cian’s health and safety advice related to
specificity
Amendment)
under
the First
firearms harassing,
inclusion
Collins,
(citing
Persons advice. the AMA’s followed meaning plaintiffs, of to the guess about with routinely spoke patients the Act. See They challenged provisions four were hold if firearms firearms, patients we Harris, asking F.3d finding the specifically erred Court in order to District in the home that the present harassment and inquiry, record-keeping, There safety information. follow-up tailor vagueness. void provisions genuinely many doctors is no doubt that help can conversations
believe these public. In- and the patients their protect IV. conver- these deed, believed some doctors the District Accordingly, we REVERSE they were important so to be sations summary judgment grant Court’s patients who to lose the business willing in- Plaintiffs, and VACATE favor to engage. refused Act. against enforcement junction by patients complaints response In SO ORDERED. and coun- questioning found doctors’ who to be subject of firearms seling on dissenting: WILSON, Judge, Circuit offensive, overly political, irritating, Priva- Firearm Owners’ passed the Florida includ- organizations, Numerous gag (Act). Act is Simply put, the Act cy Association Medical the American ing even ask- doctors from prevents order deaths (AMA), related view firearm conversation question the first ing problem health public a serious injuries as sig- prohibits The Act firearms. on chil- effects pernicious particularly with expressing nificantly chills doctors believe organizations dren. These information providing can alleviat- views and problem health their public this topic chil- one topic and particularly about one people, by providing ed information parents, only, firearms. dren Accordingly, the safety.1 about firearm agree with of whether we Regardless adopted things, has, among other AMA pa- conveyed by message doctors to inquire encouraging “members policy firearms, perfectly I think tients about as a firearms presence household a First Amend- have that doctors clear home.” Preven- childproofing part message. This convey that right to ment Children, Accidents tion of Firearm right, infringes upon significantly the AMA’s From Policy H-145.990. AMA very at the subject, it is therefore more not be inquiry could this perspective, Subject least, scrutiny. to intermediate de- specifically vital, policies as the pass cannot scrutiny, the Act level of firearm mor- pediatric to “reduce signed *33 muster. constitutional mortality.” Id. bidity and protect- in interests State’s asserted how about with their beliefs Consistent owners, including firearm rights problem, ing health public this to address best community firearm related to reduce Ap- Moyer, Health "Public S. 1. See Christine methods that by preventive care injuries using Vio- Physicians to Prevent Gun proach: Aim News, 10, lence,” Sept. public health address other Medical been used to American have accidents, 2012, http://www.amednews.com. motor vehicle problems available such by published Medical News spread American smoking, of diseases. and the in the Moyer’s efforts article AMA. describes privacy rights, rights their their to free significantly be limit ability speak doctors’ to from harassment discrimination, and to patients their ways that they believe ability care, their to access medical are protect will public and save lives. The incredibly important. Were the Act neces- poor fit between what actually sary protect to rights, I those believe the does and the it purportedly interests Act might survive an scrutiny intermediate serves belies Florida’s purpose true challenge. But the State has no offered passing this Act: silencing doctors’ disfa- evidence to show rights those are vored message about safety. This, firearm threat, under nor is there evidence in the the State cannot do. suggesting record that the Act will either The district court properly invalidated directly or materially advances those inter- content-, as a speaker-, and view- ests. point-based restriction practi1 that “chills Further, those interests must speech tioners’ in way impairs weighed against rights doctors’ to convey provision of medical care may ulti- their chosen message about safety firearm mately patient.” harm the Wollschlaeger play and to their in addressing chosen role Farmer, v. 1251, 880 F.Supp.2d what they view to public be a health crisis. (S.D.Fla.2012). In an unprecedented deci- If there is disagreement in the medical sion, Majority reverses and holds that community plaintiffs’ with the view that this law is immune from First Amendment providing patients with information about scrutiny. This is so because the State safety good public health, it labeled quell wished to “con- is certainly presented in the record duct” and the speakers it wished to silence Indeed, before us.2 the record and com- “professionals,” and profes- because these mon sense lead inexorably to the conclu- prohibited sionals were from speaking sion that children will suffer fewer firearm patients. privately firmly Precedent es- injuries related if they par- their —and tablishes that the speech proscribed or ents —know more firearm safety. about by chilled ranges Act— But they now will know less. As a result of from potentially lifesaving medical infor- there is no doubt that many doc- mation conveyed from patient, doctor to tors in curtail, Florida will significantly if political discussions private between citi- cease, not altogether pa- discussions with zens, to conversations people between who tients safety. firearms and firearm enjoy speaking freely with each other Thus, while the Act does not about a advance host of topics irrelevant —is interests, the State’s asserted the Act does tected the First Amendment. meeting At its August annual [plreventive care through safety counseling (ABA) American Bar adopted Association Res- medicine, pillar is a of modern vitally and is olution important pa- to the health and welfare of opposing] governmental poli- actions and It is legal tients. also the ethical re- rights cies that limit physicians sponsibility physicians. Failure to fulfill other health care providers inquire these objec- duties results in a breach of the patients they possess their guns whether tive standard patients.... of care owed and how secured home Firearms in the home are another known patients counsel their dangers about the risk factor doctors choose to dis- guns practices in the home and safe cuss with parents or the *34 dangers. avoid those patients. young above, Citing quoted the AMApolicy ABA specifically recognized that care for to firearms; refused physician a order, court’s district affirm
I would he wanted boy because nine-year-old a respectfully dissent. and I therefore home; in the firearms know about to Medicaid falsely told that were citizens I. firearm them to disclose required they if pay not ownership and would at issue provisions four contains The Act to answer; refused a doctor refused (1) keeping “record The appeal. in this re- the mother when a child examine cannot rec- that doctors states provision” questions; answer firearms fused to in medical information ord firearm-related not delivered services facility billed for a “relevant.” not to be “know” files that ques- to answer family refused after a 790.338(1).(2) “inquiry § Fla. Stat. their firearms. tions about re- “shall doctors states provision” right privacy patient’s spect a Leg- show experiences These about patients asking from refrain” should Act over- passing action islature’s doctor be- unless the ownership, firearm concerns on real whelmingly was based that the information faith good privacy lieves in constituent protecting about Stat. Fla. medically relevant. harass- discrimination preventing 790.338(2).(3) The “discrimination § visits. during doctor’s ment “may practitioners states vision” simi- was experience own A Legislator’s the basis on against patients discriminate” answering pediatrician’s a lar: “After Fla. Stat. ownership. firearm pedia- ownership, gun about question 790.338(5).(4) “harassment Finally, the § remove Legislator] that [the trician asked “shall practitioners states that provision” [Legisla- To the from his home. gun to own or legal right patient’s a respect po- ‘a constituted tor, doctor’s conduct refrain from should firearm and a possess the constitutional attack on litical ... about harassing” unnecessarily ” Rifle A National a ... firearm.’ to own Fla. Stat. ownership. firearm complained also representative Association 790.338(6). § owner- gun patients about questioning needs to agenda satisfy political a “to ship response to con- passed Act was This these asserts that The State stop.” the manner and complaints stituent designed Act was of what the examples discussing were doctors to which extent stop. Specifi- patients. ownership with explains: the State cally, as appeal attempts on Tellingly, the State though it by experienced scope of the discrimination [AJctual narrow Act— event, the In directly inconsistently. motivated in Florida does so gun owners a law Among explained the Act. pass Court has Legislature Supreme uncon that: be rendered Legislature restricting speech heard things, the other effect find “the inevitable based on days stitutional given was a woman [or its] its face ... to an- statute she refused physician [the] after new Health v. IMS Sorrell her purposes.” firearms stated questions about swer — U.S. -, S.Ct. Inc., physi- home; asked was (2011) (internal quotation home; L.Ed.2d 544 his remove firearms cian to omitted). Therefore, assessing marks from her a mother facility separated cannot we constitutionality interrogating them about while children *35 ignore that Act will inevitably this silence mend providing counseling guidance doctors on topic the of on a .variety firearms in all of injury-prevention but topics including firearm safety. the rarest of circumstances. Doctors Doctors thus risk quite legitimately insist that asking losing their fire- they licenses if found arm-related questions as a matter of Act, have violated they the so cannot safe- course and recording the information in ly assume that the only State will advance good files is for patients’ the narrow reading of the it suggests Act health and for public’s the safety. here. As the incidents discussed the legisla- In a revealing portion brief, of its the history tive suggest, however, the Act was State asserts that the “Act proscribes only apparently designed to prohibit doctors inquiries the doctor-patient within relation- from routinely asking about firearm own- ship and record-keeping firearms ership on prescreening, informational that is not relevant medical and safety Appellees forms. rightly suspect, despite concerns.”3 At point, difficulties arise present the State’s assurance to the con- because Appellees and the State have dif- trary, that the standard of relevance con- ferent definitions of “relevant.” Many templated by the Act is higher than the doctors and medical organizations assert Appellees’ own standard. Consequently, it is always relevant to ask about— purposes for of assessing the Act’s consti- thus, tutionality, I firearm-ownership in- many doctors, assume that record — discussed, particularized formation. absent some AMA, As the fact or circum- stance indicating well as that firearm the American Academy ownership is of Pedia- particularly relevant, trics, will stop asking its Florida chapter, the American about and recording this information.4 Academy of Family Physicians, its Florida chapter, the American College Physi- The Act prohibits also “discrimination” cians, and its chapter Florida all recom- on the basis of gun ownership. might One 3. Here is one of the State’s contradictions. not revert back to its interpretation. broader Elsewhere briefing, in its Further, the State asserts interprets the State the same word not, inquiry provision that the just (“should”) mandatory to be in the context of stated, proscription but merely is instead interpreting provision— the harassment advisory. perspective, From doctor’s how- though the State vacillates interpreta- on this ever, the Act mandatory. must treated as tion, as well. Indeed, the Executive body Director of the appears It responsible enforcing determines as a the Board matter of State law that ownership Medicine Department Florida medically (Board), preven- Health relevant in all mailed cases for physicians a letter to tive stating purposes. medicine inquiry provision that the Elsewhere in its was manda- however, course, briefing, tory. change emphasized But in the State Board posted specifically shortly to its allows Appellees website after doctors ask that, fact, filed suit about firearms provision they whenever only believe "in was advisory. good argument faith” The State’s that the information relevant only one, vision is advisory to record is not a bad such be- information unless provisions this, cause unlike "know” other it to which be irrelevant. use the From clearly "shall,” mandatory State Legislature word concludes that inquiry "the enabled provision ambiguous physicians uses the inquiries these word "should.” make ” But it extremely risky would be all for doctors to if the doctor holds different rely interpretation, given on this that the view of tim- medical relevance than State. ing change course, suggests Board's interpretation, course This would allow that it part have been inquiries of the State’s legislative history; detailed in the litigation strategy. There are precisely no assurances inquiries previ- same the State that, ends, litigation once this ously the Board will stated designed Act was *36 under for discrimination punishment fear on the incidents based
reasonably expect, did in as the doctors speaking the Act for that the this passage prompted that Accordingly, incidents. declining to the above-cited from doctors bars provision the rec- like provision, discrimination to answer the refuses who treat will ownership. inquiry provisions, keeping firearm ord regarding questions or make the con- about doctors ask affords doctors to explicitly cause The Act pa- such firearm own- to regarding refuse treat to recommendations tinued 790.338(4), initially § however, Fla. Stat. are tients, patients particularly see if ership, intended to apparently topic.5 this Legislature on so to information the resistant of discrimination forms other prevent chills doctors’ provision The harassment asserts Act. The State the passed when explains further. State even experienced discrimination that “actual to physicians enabled Legislature that “the directly motivat- in Florida owners by gun ownership] inquiries make [firearm Act.” This pass to Legislature ed the so with they do provided patients, all inci- by the list of followed statement to inquiry is relevant that the the belief history. legislative in the contained dents then, if a Logically care. patient’s above, explained the State also As noted to information seeks firearms physician response passed Act was unrelated agenda political suit and fol- ownership gun about questioning may be well-being, ... he patient’s such to make recommendations low-up harassing patient....” his unnecessarily safer, including recommenda- ownership explains, brief consistent Appellees’ As en- home from the guns to remove tions believe many doctors policy, with AMA discussions, con- which some tirely. These ownership is asking about firearm to be a perceive Legislators stituents well-being in all patient’s related to attack, as discrim- be viewed could political about fire- cases, why questions which own- gun as on their status inatory. Based many doc- by ownership were asked arm uncom- subjected ers, patients some As the of this Act. passage tors before firearms, conversations fortable however, clear, history makes legislative the State are not. Because others while follow-up and the inquiries these routine legislative acknowledges that the explicitly were deemed they prompted conversations of what consti- examples history provides part Legislators to be discrimination, reasonably by constituents doctors tutes primary discrimi- form of plicitly allows uncertainty, doctors who Given prevent. this is, doctors ownership actually in all occurred—that nation that to ask about wish significant they if taking a risk to answer turning away patients who refused would cases to do so. the notion continued questions about firearms —belies IV, point in Part provision this meant more is on A bit said discrimination my infra, brief discussion experienced in relation address actual discrimination vagueness. prohibit some may indeed It firearm owners. the State discriminatory conduct that purpose of Act and the the overall Given occur, not cre- might and it would speculates light of history legislative Act’s —considered is all it if that problem ate a constitutional legislative his- that that the State’s assertions however, context, difficult to it is did. In constitutes "dis- tory of what is illustrative anything provision as discrimination see the harassment must view the crimination” —we provi- of the other other reinforcement than designed provisions discrimination saying and prohibiting doctors sions keeping pro- inquiry and record reinforce things. writing Moreover, certain fact ex- visions. of an political anti-firearm agenda which arms. Doctors cannot ask ques- routine the State defines in its briefing as unneces- tions about firearm ownership all incom- sary ing harassment. they before, did despite the fact that a host of medical associations Most of the incidents discussed in the suggest should. Doctors cannot *37 legislative history appear to involve noth- record information about patients’ their ing more than disagreement between the in ownership highly-confidential doctor, perceived who gun-related the in- files, even though the information formation to relevant patient’s be prove later essential to the doctor in a well-being, patient, and the perceived who medical malpractice suit or to part information be of an unwelcome in an emergency situation. Doctors also political attack. The provision harassment provide cannot firearm safety information of the Act suggests that the State has and advice without running the risk of patients’ taken the side in disagree- this facing discipline if their medical efforts are ment. There is nothing suggest that construed part to be of political agenda. the doctors’ inquiries or messages regard- Though the State offers reasons to believe ing firearms not genuinely were believed that the Act might not interpreted be patients’ be best medical interest prohibit all of these things, at various given. when But there is evidence in the points its briefing, the State accepts legislative history to suggest that that these of speech forms are the intend- provision harassment is designed pre- targets ed Act. this Under a reasonable vent these conversations from taking place interpretation Act, then, doctors are in the future. That certainly the result potentially subject to discipline for talking it will achieve. Doctors largely will cease about firearms with patients in all inquiring into and counselling topic on the abut few narrow circumstances. firearms, they lest of cross- accused One final observation is in regard- order ing the line providing between life-saving ing the interpretation. Act’s The State preventive medical information and deemed the district court’s decision to moting an anti-firearm political agenda.6 the inquiry treat provi- harassment then,
Under this one group of sions as mandatory advisory rather than speakers, medical professionals, prohib- an intentional “effort to render the Act ited ator least chilled from engaging in a unconstitutional.” however, The Majority, great deal speech topic, about one fire- accepts the district court’s interpretation brief, (most, In its initial the State asserted unnecessarily ... harass about fire- though time) not all of the arms, word suggesting while ... they “should” inquiry provision in the rendered broach these If the State areas.” cannot even provision purely advisory. Regarding the decide from one brief to the next whether the provision, harassment which included the ex- prohibits merely Act against advises unnec- word, "should,” act same the State asserted essarily harassing patients, certainly doctors provision “prohibits] facilities and rely cannot on the self-contradictory State’s practitioners ... unnecessarily harass- punish assurances that will not seek ing patients guns.” own who The same word doctors under provision the harassment used in the provi- same statute one rendered speaking ways that some constituents deem advisory sion mandatory. but other In an political. Judge Tjoflat to be recognized As contradiction, effort to correct the State argument, oral simply these rules will cause Reply asserted in its Legisla- Brief that "the doctors to clear.” "steer provided ture physicians with the freedom to id. See namely,” doctors. speakers, provisions harassment inquiry
that the disfa- face burdens law on its “[t]he Thus, despite accepting mandatory. speakers, [and] by disfavored vored even the Act interpretation an judicial scruti- heightened follows [i]t un- “render would suggests State Indeed, Id. at 2663-64. ny is warranted.” strikingly Majority constitutional,” the height- requires First “[t]he not even and is is valid that the holds government scrutiny whenever ened scrutiny. In First Amendment subject to because creates a further gone has words, Majority other message it con- with the disagreement than State rights limiting speech added) (in- (emphasis at 2664 veys.” Id. could. it should or argued omitted). The marks quotation ternal excep- not invite does “whenever” word *38 II. any- creates one tions, Majority but com- Notwithstanding the Court’s way. speech about one proscribes The Act no First mand, Majority concludes speakers (firearms) group by one topic a when scrutiny applies even Amendment this, Despite (medical professionals). disagree- on regulated based message is entirely Majority concludes content, the mes- long as so with its ment scrutiny because First Amendment evades a doctor in private sage delivered and within the private occurs speech patient. to her relationship. doctor-patient aof confínes this conclusion. undermines Precedent scrutiny applica Modifying the level consistently sub- authority Court Supreme in this restrictions content-based ble to viewpoint- content-, speaker-, jects dangerous,” “startling and manner is least intermediate to at restrictions based “free-floating adopt courts are scrutiny. I believe we First coverage” First Amendment test[s] on this based case decide this should expansive the substantial light of authority. straightforward by content- speech posed free threats to v. Ste United States
based restrictions.
460, 470,
vens,
130 S.Ct.
U.S.
559
A.
(2010); see also
1585,
1239
Despite the
State’s contention that
Planned
Parenthood
Southeastern
gun
topic just
doctors are silenced on the
Pennsylvania
Casey,
833,
v.
505 U.S.
112
doctors,
surely
anti-gun
as
as
2791,
Act’s S.Ct.
(1992),
L.Ed.2d 674
legislative history
erases
doubt as to
Brown,
(9th
Pickup v.
confirms of the Act was firearm-safety messages to silence perceived “political
were
attacks” and
Majority’s
analysis begins with Jus
part
of a “political agenda” against
Lowe,
tice White’s
concurrence
472 U.S.
ownership.
prac-
“[i]n its
228, 105
at
(White, J.,
S.Ct.
concur
operation,
tical
goes
law
even
[Florida’s]
Shore,
ring), and Locke
1185,
v.
634 F.3d
beyond
discrimination,
mere content
to ac-
(11th Cir.2011).
shown,
As will be
(inter-
viewpoint
tual
discrimination.” Id.
these cases stand
proposition
for the
omitted).
that a
quotation
nal
marks
“It follows
law regulating professional conduct that
heightened judicial
scrutiny is war-
speech may
burdens
evade First
ranted.”
Amend
Id. at 2664.
(1)
scrutiny only
ment
when:
the law is a
The Supreme
recognized
Court has
licensing scheme regulating entry into a
is rare that a
restricting
“[i]t
(2)
(an
profession;
impact
on speech
speech because of its content will ever be
impact
only by unlicensed,
felt
would-be
permissible.”
Playboy
United States v.
practitioners)
is incidental
to a broader
Inc.,
Grp.,
803, 818,
Entm’t
529 U.S.
goal
State
(ensuring the quality of the
1878, 1889,
(2000).
S.Ct.
scrutiny where the burdens occur within a professional Locke, setting. See 634 F.3d B. (“ at 1191 ‘If government the gener- enacts ally applicable Against great licensing provisions limiting the weight of this authori the ty, persons the class of who Majority disagrees practice and the sug instead gests content-, profession, it these cannot be said to speaker-, and have enact- viewpoint-based regulations ed a limitation on impli do not ... freedom of ” cate the subject First Amendment. to First Accordingly, scrutiny.’ Amendment (alteration added) Majority applies the in original) (emphasis rational-basis review. Lowe, Most of the Majority, (quoting 232, cases cited the 472 U.S. at however, (White, do not reg J., involve content-based at concurring))). Where ulations, do, and the cases cited that applies, this rule subject only the law is of a practice in the engaging as Lowe, at viewed 472 U.S. review. basis
rational
at 2584.
at
Id.
S.Ct.
profession.”
only that
(requiring
at 2582
228, 105 S.Ct.
hand,
the other
On
rational connection
“have a
regulation
capacity
or
fitness
applicant’s
with
pro-
personal nexus between
[w]here
(internal quotation
profession”
practice
exist,
a
and
not
and client does
fessional
omitted)).
marks
to be exercis-
purport
not
does
speaker
any particular
of
judgment on behalf
ing
Majority’s con-
disagree
IBut
he
circumstances
with whose
individual
because,
here,
applies
rule
that this
clusion
regu-
acquainted, government
directly
is
similarity between
one
is
while there
legitimate
to function
ceases
lation
and the
those cases
at issue in
regulations
practice with
professional
regulation of
differ-
critical
here,
are several
there
it be-
speech;
on
impact
only incidental
ences.
publish-
speaking
of
comes
Amend-
such,
to the First
Lowe, Locke,
subject
ing
similarity is that
The
(cid:127)
(cid:127)
(cid:127)
(cid:127)
occurs
speech that
all consider
this case
ment! J
profes-
of a one-on-one
confines
within
because
concluded that
White
Id. Justice
Lowe,
In
defen-
relationship.
sional
latter
fell into the
the defendant’s activities
providing investment
of
accused
dant was
applied.
Amendment
the First
category,
license,
of
in violation
a
advice without
person
a
if
Majority reasons
at
S.Ct.
Id.
federal law.
within the confines
operating
is not
who
the First Amend-
considered
White
Justice
First
relationship has
professional
a
that the in-
the fact
implications
ment
person
then
protections,
Amendment
broadly,
published
was
“advice”
vestment
within the confines
operating
who
might not be
that Lowe
suggesting
Amend-
has no First
relationship
such
ad-
of investment
practice
in the
engaged
faulty.
logic
This
protections.
ment
Ultimately, Justice White
at all. Id.
vising
only that the existence
established
Lowe
Amendment
the First
concluded
necessary
relationship is a
professional
convey
invest-
tected Lowe’s
is to
burdening speech
if a
condition
law
profit,
for a
even
information
ment-related
scrutiny. Noth-
First Amendment
evade
233, 105 S.Ct.
Id. at
no license.
if he had
a condition
implied
such
ing in Lowe
First
discussing
In
at 2584-85.
this conclusion.9
support
was sufficient
licensing
implications
condi-
fact,
three more
Lowe suggests
In
conclud-
White
generally, Justice
schemes
present
tions,
have been
all of which
the af-
who “takes
professional
ed that
rule,
applying
subsequent
Lowe’s
cases
hand
personally
client
fairs
aof
present
here.10
none of which
judgment
behalf
to exercise
purports
condition, Lowe
above
the client’s individ-
In addition
light
client
would
contemplated
also
properly
circumstances
ual
needs
*42
state-
from Justice White's
only
not follow
recognized
does
"[t]he
White
9. Justice
regulate
profes-
in Lowe.
power
government
ment
practice
of a
is not lost whenever
sions
228,
at
105
speech.” Id.
profession entails
Cir-
exception
Ninth
one
from the
10. There is
Majority reads
this the
2582. From
S.Ct. at
cuit,
readily distinguishable from
which is
of the
principle that
broader
far
case,
be discussed below.
as will
instant
is
speak
he
professional
is lost whenever
profession. This
practicing his
conclusion
1241
without
burdened
First Amendment
topic
scru-
of investment advising, but within
tiny only
field,
if the burden was a
consequence
it did not differentiate.
It was
not as if
professional licensing
of a
unlicensed
scheme.
Id. at
advisers were left free
229,
recommend
105
at
investment
(discussing
products
S.Ct.
2583
“the
government preferred
govern-
principle
government may
that the
restrict
—such
ment bonds—but restricted from recom-
entry
professions
into
and vocations
”
mending anything else.
Similarly,
through licensing schemes
(emphasis
Locke, unlicensed designers were not
added)).
left
condition,
And there
ais
third
free to
design
recommend
techniques the
recognizes
which
the government’s
government might prefer
energy
ability to burden speech through a
—such
licens-
saving, “green” designs
restricted
ing scheme
—but
without implicating the First
from recommending anything else. In this
Amendment “has never been extended to
way,
least,
at
speech
burden on
encompass
licensing
of speech per se
cases like Lowe is content-neutral.
229-30,
or
press.”
at
Id.
105 S.Ct.
Further,
at
First
2583. This
Amendment
reasoning
scrutiny
has
is
developed
not eliminated simply because
“any
into a rule that
burdened
inhibition [must be]
speech occurs in the course of
merely
conducting
the incidental
of observing
effect
one’s business as
professional.
a
Even in
an
legitimate
otherwise
regulation.”
cases involving speech
spoken
that is
only
Locke,
added)
634 F.3d at
(emphasis
1191
in pursuit of
profession,
one’s
the Court
(internal
omitted).
quotation marks
In
applied
has
intermediate First Amendment
(and
contemplated
cases
by Lowe
subse-
Sorrell,
scrutiny. See
131
at
S.Ct.
2667-71
quently, Locke),
regulation
the State’s
was
(applying intermediate First Amendment
speech
not directed at
but instead
im-
scrutiny
ato
law prohibiting pharmacies
proving the overall quality
profession,
of a
selling
from
records of doctors’ prescribing
broadly speaking, by ensuring
patterns
pharmaceutical
salespeople);
qualified
practice
individuals
profes-
It, Inc.,
Fla. Bar
618,
v. Went For
515 U.S.
See, e.g.,
(relying
sion.
id.
Lowe
620, 623-24,
2371, 2374, 2375-76,
115 S.Ct.
a
uphold
restricting
statute
practice
(1995)
tent-neutral stop not do and the differences posite, that inci- designers to interior applicable regu- is not to purpose Act’s there. The of unlicensed the dentally burdened a medicine as whole of profession late giving them from by designers prohibiting one, aspect narrow regulate to at but rather F.3d advice. 634 design one-on-one Further, speech. professional of from were Lowe conditions 1191. The four speech as a incidentally burden does not scrutiny was met, Amendment and First of im- pursuit of the State’s Lowe, consequence at U.S. also applied. See not profes- quality of the overall (White, J., proving concur- 228, at 2582 Instead, directly Act a sion as whole. that First Amendment (recognizing ring) by profes- licensed per se targets speech “[rjegulations apply not scrutiny does incidental sionals, just speech not (emphasis profession” a entry into on unli- by the profession practice of added)). distinguishable readily one With rec- inquiries, prohibits The Act censed.12 by the Ma- only cases cited exception, harassing unnecessarily keeping, ord applied involve Lowe is jority in which may discriminatory expression circumstances where same, of narrow set —which more than recommenda- nothing consist challenging is individual an unlicensed safely more or firearms tions to store ability her on his or restriction some with children if from homes them See profession. remove regulated in a engage to be are taken Ga., 1422, recommendations those 132 F.3d Bar v. Wilson State topic, firearm Cir.1998) attacks” —on one “political (11th (restricting dis- 1429-30 ren- safety. of course law); ownership and This attorneys practicing from barred than rather Act content-based ders the Bowman, (restricting F.2d at 604 case content-neutral, distinguishing this product the work terms in of certain use accountants). Locke. even further unlicensed only two reasons Majority offers all distinguishable from The is The Act here beyond the narrow extending Lowe licensing for not a cases. It of these Lowe, Majority prohibits. The re- inquiry provision language....” means of by carried out J„ (White, State’s ban that the S.Ct. at 2582 lies on Lowe to conclude 472 U.S. at added) (internal quota concurring) (emphasis inquiries implicates no irrelevant on such omitted). primarily concerns, conduct If directly tion marks but Lowe First however, language, it becomes carried out inquiries speech, not are that such states regulation of that claim that difficult to speaker does ... a conduct: "Where fessional merely burden an incidental conduct creates exercising judgment on be- purport to be to fall speech. The then seems on individual,” would any particular as half of speech, sub of commercial under the rubric asking a doctor is obviously the case when See, scrutiny. e.g., Sor ject to intermediate he firearm because if he owns a patient his rell, 2667-68. at S.Ct. hunting trip, "government arrange wants legitimate regulation ceases to function Indeed, considering exactly what the in- 12. practice with professional purports how far quiry provision to do shows reg- impact speech; it becomes incidental contem- removed the is from scenario such, publishing speaking prohib- ulation inquiry provision plated in Lowe. 472 U.S. subject Amendment].” the First questions asking irrelevant its doctors from direct- example, Lowe if a doctor 105 S.Ct. at For about firearms. gotten prohibited by each other patient inquiries to know ly his that the have states patient years, profes- the doctor ask legitimate regulations over Act are not to see if in order whether he owns regula- direct conduct but instead sional hunting. might go That like to speech. tions patient’s inquiry plainly irrelevant care, example of what so it is an obvious
1243
in
context
which it has been previously
into
expression.
free
recognized
It
First,
applied.
explains
very
it
that a
that a
State’s
narrow
category
speech—
speech
concern for maintaining
standards
professionals
unlicensed
engag-
ing in
goes beyond
fessional conduct
practice
initial li-
one-on-one
of profes-
sion for
censing.
true,
which
unqualified
This is of course
but
in
are
it
—could
incidentally
way justifies
no
burdened
Majority’s
as a
position
consequence
of licensing an entire profession.
that no First
The
scrutiny
Amendment
applies
holding of Lowe and
purpose
of Justice
to laws
directly
like the Act that
burden
White’s concurrence was to narrow that
speech in pursuit of maintaining those
category, and thus
expand
the free
Instead,
standards.
regulations of this
even
rights.
profes-
unlicensed
subjected
kind are
to intermediate scruti-
By saying
sionals.
that
profes-
unlicensed
It,
ny.
Inc.,
See Went For
515
U.S.
sionals’
rights
free
expanded, Lowe
623, 115 S.Ct. at
(applying
2375-76
inter-
implying
was not
profession-
licensed
scrutiny
mediate
to a
limiting
als’ free speech rights narrowed. The Su-
direct-mail
by lawyers
solicitations
vic-
preme
explicitly
Court has
against
warned
tims
the wake of accidents which was
reading First Amendment
case law this
justified as “an
protect
effort to
flag-
way: “A
designed
rule
to tolerate certain
ging reputations of
lawyers by
Florida
speech ought not blossom to become a
preventing them
engaging
in conduct
rationale for a
restricting
rule
it.” Alva-
...
universally
regarded as de-
rez,
below. For enough point out the Majority explicitly recognizes ... Clients trust in investment advis- that Casey apply does not the Lowe ers, if protection not for the of life and that, framework contrary Ma- liberty, at least for the safekeeping and jority’s holding, Casey explicitly states property. accumulation of Bad invest- that “First rights ... im- ment advice ... lead to ruinous plicated” when the State profes- burdens losses for the client. To inves- protect speech. sional U.S. at S.Ct. tors, Government ... may require at 2824. Majority with left advisers, investment lawyers, like no basis for extending beyond Lowe li- qualities evince truth-speaking, censing context. honor, discretion, fiduciary responsi- bility.
Lowe’s rationale has wisely not been extended —until now. Lowe articulated 472 U.S. at at 2582-83 S.Ct. reasons for limiting government (internal (White, J., intrusion concurring) quotation outweighed ownership omitted). professionals Licensed
marks *45 recently re- very The has Court benefits. in position venerated a occupied thus for rationale appropriate as an jected this func- perform Lowe, these professionals as the State finds speech: “That silencing to cannot be trusted society that in tions permit not persuasive does too expression only it was because anyone. And just its to speech or burden quiet the it to unquali- that the rationale compelling Sorrell, at 2671. messengers.” Majori- at all. The silenced could be fied distinguish- is that Lowe thus clear It is deep in in this case is Lowe ty’s reliance on its ratio- factually based able both and from ven- Far rationale. with that tension compel- aside a not set nale. We should deliver what who erating professionals consistently case law that body of ling advice, the critical to be recognized Lowe con- scrutiny to Amendment First applies profes- licensed prohibits Act here an exten- based on restrictions tent-based exercising judgment, their from sionals of cases. line inapplicable an sion of the kind engaging in making inquiries, believe counseling persistent pa- of their well-being improve will 2.
tients.
analogy,
a much closer
Casey presents
that licensed
recognizing
Instead of
that interme
only to
but
serves
reaffirm
valuable,
particularly
speech is
fessionals’
here. The
appropriate
is
scrutiny
diate
certain
to silence
the State’s decision
to
compelled doctors
Casey
in
regulation
Majority pre-
by the
approved
speech is
about var
seeking abortions
women
advise
quali-
so
speakers are
cisely because
and alternatives.
consequences
ious health
rely on the
could not
The State
fied.
884, 112
(plurality
at 2824
at
S.Ct.
505 U.S.
to,
si-
example,
Majority’s rationale
nexus between
personal
opinion).
unquali-
who are
non-professionals,
lence
here and
and client that exists
professional
advice,
safety
from
give
firearm
fied
in
present
also
in Locke was
that existed
about
inquiries
private
making
however,
Locke,
in
Casey
Unlike
Casey.
type
though silencing
even
ownership,
targeted
regulation
a
volved
In-
Lowe envisioned.
is
speaker
what
the medical
topic within
specific
allow
rationale
stead, Majority’s
would
general
rather than
profession
profession-
and all
the State
silence
entry
profession
restricting
give
advice
qualified to
such
analogous
als who are
more
Casey
thus
whole.
in a
spoken
when
speech,
identifying
because their
helpful
this case
setting is converted
scrutiny, though it
private, professional
applicable level
unpro-
speech to
First
private
the relevant
protected
noting
worth
turns
conduct. This
consisted
professional
tected
discussion
Amendment
opinion
in a three-member
its head.
sentences
Lowe on
three
Court.13
speak
for the
that did
favoring
seemed
As amicus
sup-
Casey
Majority cites
Though
admit,
silenced because
doctors were
rule that
of Lowe’s
of its extension
question
port
causing patients
speech was
implicated
is not
Amendment
the First
safety concerns associated
whether
V-B, and Justice
falls
Part
discussion
opinion constituted
13. Justice O'Connor’s
III,
only by
I, II,
joined
Justices Kenne-
was
V-
O’Connor
as to Parts
judgment of
Court
Part.
dy
in this
A, V-C,
Souter
only. The First Amendment
and VI
here,
actually
(5th Cir.2012)
Casey
(“The
stated the exact oppo- 575
plurality response
“First
rights
site:
...
to the compelled speech claim clearly
implicated.” 505
U.S. at
S.Ct. at not a strict
scrutiny analysis.”). The
Majority’s
conclusion that Fourth Circuit was
specific,
more
applies
Lowe
and that First Amendment
Casey
characterized
applying
“interme-
rights
implicated
are not
inside the con-
scrutiny.”
diate
See Greater Balt. Ctr. for
fines of one-on-one professional
Concerns,
relation- Pregnancy
Mayor
Inc. v.
&
*46
ship is simply incorrect. The Majority
Balt.,
City Council
539,
683 F.3d
554
(4th
apparently
Cir.2012),
drew its
conclusion from
reh’g
vacated on
en banc on
Locke—-where we
licensing
held that
the
grounds,
(4th
other
721
Cir.2013);
F.3d 264
requirement at
implicate
issue “does not
see also Pickup, 740
at
(placing
F.3d
1228
Amendment,”
...
the First
634 F.3d at Casey at
midpoint
the
on the continuum of
added)
(emphasis
1191
mistakenly First
protections).
Amendment
Other
—and
Casey
conflated with
even though, again, Circuits have not definitively answered the
case
opposite.14
said the
question.
Locke,
it is clear that unlike
the
Although Casey did
explicitly
not
state
regulation in Casey
subjected
was
to some that
scrutiny
intermediate
applied, I be-
level of First
scrutiny.
Amendment
Given lieve the Fourth and Ninth Circuits are
brevity
Casey’s
the
First Amendment
correct.
Immediately before addressing
discussion, identifying what level of scruti
issue,
the First Amendment
the
in
Court
ny
applied
was
is difficult. Casey noted Casey recognized that
the State had “a
that,
only
although the First Amendment
government
substantial
interest justifying
applied,
“subject
the
was
to reason
requirement
that a
apprised
woman be
licensing
regulation”
able
and
because it of the health risks of abortion and child-
“part of the practice
was
of medicine.” birth.” 505
882,
U.S. at
Similarly, the court in Pickup though concluded speech exclusively the was intend- therapy, that SOCE though carried out in fully ed to inform patients about a medical then, Majority treats the Ultimately, is if that speech even procedure. medical con- nothing like that speech treat- of medical equivalent functional the narrow exceedingly the in duct—either scrutiny, without regulated be ment can Pickup or the by contemplated sense to medical directly related that speech by contemplated sense somewhat broader category within not fit does treatment conduct. unprotected Casey—as Pickup. under as narrow as holding Majority’s the Were where Pickup objections, contrast Here, in stark have I would fewer Pickup’s, below, I func- was the reasons discussed speech though for the burdened all of it incorrect. find probably none drug, still providing would equivalent tional as narrow as Majority’s holding the fits in Were by the Act burdened speech because I find incorrect Casey, would Asking category. narrow exceedingly scrutiny a lower level Majority uses the firearm owner- about questions irrelevant to- Casey, but did the Court did than answers, harassing a recording ship, objectionable be less day’s decision would ownership by based patient — however, Here, only error. its if were discussing irritatingly persistently holding not decreases Majority’s giving nothing like subject—is regulations scrutiny applied level therapy. Fur- SOCE performing drug or Casey, expands it also the one like all, of the by no means some, though ther, that can be burdened speech category Act is similar by the burdened speech review. without by the burdened speech a broad such burdens Because the Act bur- extent Casey. To topic speech on physician swath of to inform designed speech dens defini- including speech firearms — speech firearms or dangers medical treat- nothing to do tion has ways patients of safer inform designed to Conant, heightened applied which ment — like firearms, is much speech to own Doctors directly applicable. scrutiny, Accordingly, such Casey. ask a First have intermediate given should to discuss— firearms questions about *49 speech tections, Majority gives the the but cons pros and persistently even —the that, all, a line as blurring at protection no just patients their ownership with Supreme the recognized, Circuit the Ninth the to discuss they have surely still, while required. Worse itself Court marijuana. of medical pros and cons the exclusively concerned Casey the law be labelled un- cannot communication Such fully inform necessary patients to speech it takes simply because conduct protected the here procedure, about a medical professional a confines of place within the to is unrelated speech that also burdens to nothing un- Pickup does relationship. bans irrelevant The Act purpose. this reaffirms fact principle this dermine on irritating politicking I make questioning no it, though 740 F.3d at by ownership, correctly which subject of firearm Pickup the was on whether comment to do whatsoever nothing has definition decided.16 proce- or a medical treatment with medical inform designed to way no and is in dure is irrelevant speech rele- that By subjecting of medical anything
patients about
without
regulation
to
to medical conduct
vance.
dissent,
spirited
which
en banc drew
take the
case
not to
Circuit’s decision
16. The Ninth
scrutiny,
First Amendment
under
the
private speech
All
professionals
from
to
conduct,
is,
guise
regulating professional
patients/clients
today, subject
after
to
regulation
Majority
speech
scrutiny.
the
holds that
without
all
between
professionals
patients/clients
long
—so
Because
Majority
the
holds
that
as it occurs within the confines of a one-on-
regulation
State’s direct
of speech from
professional relationship
one
be bur-
—can
doctor
to
particular
about a
topic
by
scrutiny.
dened
States without
Despite
review, then,
draws
rational basis
re-
clearly reaching this holding,
Majority
the
gardless of whether
State
here has
implications,
those
disputes
so I must ex-
all speech
actually banned
by
doctors to
plain my point further.
I do not do so patients on
topic
firearms,
today’s
simply
identify
slope.
In-
slippery
holding undoubtedly gives States license to
stead,
today’s
this section shows that
deci-
do so in the future.17
why
That is
I assert
brings
sion
us to the bottom of
slope.
that
today’s
holding authorizes States to
‘‘[b]ylabeling
speech
stated that
...
as ‘con
circumstances. And such discussions cannot
duct,’
panel’s opinion
entirely exempt
has
inquiry.
involve
escaping
there is no
regulation
ed such
from
First Amend
reality
speech
that even
by
if all
doctors to
doing,
panel
In so
ment.
...
insulates
patients about
prohibited,
is not
firearms
scrutiny
from First Amendment
California’s
great
Despite
deal of
directly
it is.
targeting
prohibition
guise
professional
of a
firearms,
physician speech
—in
Majority
politically unpopular expres
specifically
—of
concludes
does not
(O’Scannlain, J.,
sion.”
burdening to write the name of medicine, patients counsel on firearm safe- the drug prescription pad. on a Liability ty, might we dealing be with a regulation also failing attaches for to properly diag- like malpractice laws and like the law in disease, nose a burdening practice the bad Further, Pickup. had the State drafted of failing identify problem a health law, such a opening question then the in a incidentally burdening the right to remain safety counseling session—a ses- silent about a problem medical tell prohibited sion that as bad medicine patient he has a clean bill of health when under hypothetical likely also he does not. —-would Pickup justified was on the prohibited. case, be In that the ban on the same basis. therapy analogous SOCE question might truly be incidental to prescribing a harmful drug. Liability (what deems) overall ban on the State bad could attach for providing therapy SOCE practice. medical I expressed my have because the therapy had the chance to doubts as to whether such a ban would harm minors psychologically. evade First scrutiny, but that Pickup As recognized, Lowe howev- ban would be more likely to do so than the er, (or even if quack medicine what the Act. medicine) quack
State deems to be can be contrast, By the Act allows firearm prohibited scrutiny, without doctors cannot continue, counseling to directly so is not prohibited talking to their regulating medical declaring conduct or about quack medicine. See 472 U.S. certain form of treatment bad (White, J„ medicine. S.Ct. at 2584 concur- (“I time, At the same ring) directly bans do not think [the could State] asking questioning make it irrelevant a crime ... about fire- privately speak even, urging persons especially, ques- indeed those reject any follow or arms — (internal school of thought.” having nothing tions quota- do with medical omitted)); tion marks 740 F.3d at conduct. The Act directly targets thus (holding only that doctor questioning “[a] incidentally advances *52 mine-run, in the apply not but does cases might interests medical
whatever less from more case. Aside irrelevant obvious eliminating law by a served argument vagueness the Plaintiffs’ making from the doctor’s firearms about questions Majority’s them,19 that the proves this direct. for speech is on burden The office. is, best, inapposite. rationale is care medical to benefit The Supreme The indirect. incidental it can- that explains Majority the While States recognized that explicitly has Court it is Pickup, in the lines drawn find way. in this interests cannot advance wholly irrele- that a ban on unquestionable (recognizing Sorrell, at 2670 See provision inquiry like the questioning vant laws prohibits Amendment First that the that is speech a ban broader than is far its to achieve seeks State where “[t]he professional equivalent functional the the indirect through objectives policy case in the closer even And conduct. by speech restraining certain means of irrelevant, clearly is not questioning where speakers”). certain Majori- for the be said most that can the salvage its claim questioning attempt In some of the an is that ty’s opinion prohibits the provision like inquiry Act look by the Act’s the prohibited incidentally bur- only (i.e., directly conduct relat- speech fessional Casey in speech the Majority discusses dens burdened speech, The procedure). to a medical ed fire- questioning about where closer the bur- case looks like never questioning here in a discussion salvo opening (i.e., arms that is Pickup in dened cer- care. It is preventive Moreover, Act procedure). a medical cases, the question- in such tainly true Casey Pickup or either further than goes in the being “conduct” closer ing moves is neither burdening questioning Pickup. But in Lowe sense discussed nor procedure to a medical related the Ma- inapplicable how only proves this procedure. of such equivalent functional a First Amendment jority’s rationale First holding evades By As the inquiry provision. analysis of the hold- scrutiny, Majority’s Amendment viola- concede, clearest must Majority case than other is thus far broader ing ques- provision i.e., inquiry tions — rationale. applying Lowe’s arguably even obviously irrelevant most tioning that is accept Majority’s refusal The activity that looks prohibited care—is light in holding perplexing of its breadth conduct. So professional like the least Essential Casey. its treatment inqui- allowing the Majority’s rationale assumption holding is an Majority’s First Amendment to evade ry provision doctors Casey compelling the law inqui- when the applicable least scrutiny is was a ways about abortion certain speak theOn applicable. is most ry provision the ration- subject to of conduct regulation more becomes hand, questioning other by Lowe. contemplated review al (and basis less thus care to medical relevant First no Majority holds that Act), it be- obviously in violation applies none Casey so applied (and scrutiny conduct professional like comes more like the here because In scrutiny). regulable thus without more to medi- speech related Casey, burdens words, Majority’s rationale other counsel- (here, safety cal conduct closest, ambiguous most in the applies IV. infra, 19. See Part *53 abortion). there,
ing; Yet the Majority if Even we were to overlook Majori- the ty’s for some my explicit reason resists conclusion that rationale —that the discussion following question its the holding opens the door for would be States to conduct regulable thus we would still prohibit, without First be Amendment scruti- —then left with the indefensible proposition that a ny, all discussions about safety firearm question conduct, is unprotected while a under the exact same rationale. discussion following question the may be It is impossible envision what within protected speech. proposition That cannot Majority’s the holding would render its be Asking correct. someone whether rationale and holding inapplicable ain sit- (“Do engage smoke?”) in a practice you uation the where State banned all discus- far less like medical conduct than discuss- by sions patients doctors to on a topic ing dangers the of engaging in the practice such as firearms. Majority explicitly (“Smoking lung cancer, causes you so recognizes justifies that —and indeed its Y, should X, use or Z stop.”). method to holding because—the Act bans questions It is even more obvious that asking some- that may opening constitute the salvo a (“Do one an question you irrelevant own a medical discussion about firearm safety. gun? so, If go we should hunting.”) is far It is precisely question because that may less like medical conduct than discussing discussion, lead a (“You a discussion that it- safety firearm your should store conduct, self constitutes medical firearm and that the ammunition in separate, question locked lock.”). can be treated safes and use trigger if conduct. So Given that question Majority’s the regulated can be rationale as conduct for ex- tending Lowe is that the (i.e., questioning, because it precipitates conduct even a dis- irrelevant, conduct, when cussion discussion safety), about firearm then the itself is even clearly subject more regu- Majority necessarily has conclusively lation scrutiny without on the same basis. defined discussion about firearm safe- If Majority does not like the implica- ty as conduct that can regulated be with- tions of holding, its the Majority should out First scrutiny, Amendment as well. change holding rather than obfuscat- So, while it be true that the Act here ing it.20 does totally discussions, not ban such my
point is Majority’s holding Thus, neces- by reaching unprecedented sarily States to do so in allows future. holding Casey applied only rational becomes, 20. And Majority which the declares speech discussion the more like regulation to be a on conduct immune from the less like conduct becomes. If a doctor review, First stop sentences, does not limits to three he prob- himself has prohibiting questioning. prohibits ably It also strayed directly stating far from persistently discussing doctors from safety, firearm basics of but firearm if a doctor has discussion, safety patients. Persistent entered a extended a more discussion about reasons, Majority apparently just like the safety, likely he is far more to stumble discussion, opening regulable salvo in the topics onto politics like Second Amendment professional necessarily conduct. This nothing that have whatsoever to do with med- any argument course, regulation forecloses that a ical conduct. Of if a discussion be- by brief discussions doctors about long comes so intense and carries on for so might protected by others, firearms still be begins the First that it to harm the State's need A three Amendment. sentence recitation of to burden the would increase. generalized safety intense, protracted information be con- political cannot ban on discus- by verted from to conduct addition patients may with their sions doctors fourth, twentieth, of a likely or even sen- fiftieth more scrutiny, to survive intermediate illogical, tence. longer The notion is length as the but the of the discussion cannot some- scrutiny that more I little doubt sey, have subjected review, Majority has basis reviewing applied have been would that are related firearms discussions mentioned, and just like the one regulation without care preventive here, irrelevant burdens which like the *54 above, the Further, as discussed scrutiny. to medical that is unrelated questioning that rational basis held has also Majority care.21 Act the to laws like even applies review has no speech that doctors’ burden
that question- obviously irrelevant that Given conduct to medical whatsoever relation about diatribes lengthy political ing and ownership (i.e., about questioning nothing like are Amendment the Second trip). hunting a arranging of purposes for med- equivalent providing of the functional here, Majority is the Casey By applying all like the com- are not ical and at care the have come out Casey would that saying Casey, Majority in the disclosure pelled law had informed consent if even the same rationale. relying on a different must be in- provide irrelevant compelled doctors that suggesting implausibly Instead about, ques- to ask or irrelevant formation professional con- actually is speech such if the to, abortion. Consider tions related asserting that duct, Majority must be the here, had bur- Casey, like the law law is not itself “con- questioning irrelevant For exam- questioning. irrelevant dened pro- be it can nevertheless but that duct” all Ob- Pennsylvania compelled ple, had scrutiny First Amendment without scribed abortion, patients ask about Gyns to questioning that the basis irrelevant on (be- irrelevant was questioning if the even is, That practice of medicine. harms considering an not patient was cause the irritating questioning irrelevant while could not abortion, pregnant, not or was character- cannot be discussions political holding conceive), Majority’s (because even they are medicine” ized as “bad creat- all), burden Majority may would render be not medicine merely incidental by such a law is medi- claiming ed that such bad for view, And any question professional conduct. cine. Under ap- could be scrutiny might patient would ask a Amendment First doctor rationally assert about if the State Majority if is correct scribed can Even ply. is detrimental to asking question scrutiny applied Ca- was what level Roe, just as the protected or about evils abortion the discussion from how convert engaging unprotected prohibits conduct. Unless doctors speech to Majority willing to embrace distinc- is irritating, politically-motivated dis- lengthy, tion, option appears have no Majority Majority holds cussions about firearms. holding permit accept that its would but may regulate burden such States ban, scrutiny, discus- without brief States review, without Amendment discussions First surely just as States sions about firearms regulating guise medical con- under today’s holding prohibit allowed are long the discussions occur within duct—so questioning about persistent discussions relationship. professional It confines topic. the same nearly that such impossible to believe scrutinized, we but regulation would not be bur- Act does than fact more 21. The Majori- light now must believe that Casey, proves that as the inquiries further den lengthy, politically-charged ty’s holding that it, Imag- inapplicable. interprets Majority can between doctor discussions law Pennsylvania’s informed consent ine if scruti- regulated without First lengthy engage in compelled doctors to had ny. birth partial the details of discussions about “irrelevant”, professional conduct.22 holding obviously allows dis- cussions about the topic same to be banned rationale, Given this I fail to see how scrutiny. because, without That is if an today’s holding permit would ever a future question irrelevant profes- bad for the court to strike down on First Amendment sion, an irrelevant discussion—which will grounds that, stating law example, multiply the extent to which “irrelevant,” doctors cannot talk to their harmful topics injected profes- into the the Affordable Care Act. Certainly the sion—is sure to be as bad worse. State could rationally po- assert such litical discussions make patients uncom- Thus, today’s holding allows States to fortable and therefore should be eliminat- clearly ban irrelevant questioning under *55 spoken ed from patient when doctor to pretense the false that the questioning is within professional the confínes of a rela- conduct, or, alternative, in the on based This ban tionship. upheld would be under the un-scrutinized assertion that ques- the the Majority’s rationale as a regulation of tioning is bad for profession. the This medical conduct designed improve to medi- holding also allows States to ban arguably cal care. questioning irrelevant based on a theory questions might that be the opening salvo Perhaps Majority’s the holding only ain discussion might that constitute con- proposition stands for the that irrelevant duct, or, alternative, in the on a theory speech can purged be a profession from the or questioning follow-up discus- guise under the regulating conduct. sion might be bad profession. for the This But Majority since the holds that the holding also allows to States ban what the State’s assertion that question- irrelevant profession itself overwhelmingly deems to ing is for the profession bad will not be (so be relevant questioning long as the subject scrutiny, in future cases the State asserts that questioning is irrele- State’s assertion that the questioning is vant) under the same rationales. And if irrelevant and therefore harmful will be questioning can be accepted it banned without scruti- wholly unless is irrational. Further, ny on the basis Majority questioning holds that is we must (or accept conduct the State’s profession), view on detrimental to the relevance even if that view is discussions can contradicted evidence banned under the same rationale(s) the record.23 already discussed, And as if because discussions are more questioning “irrelevant” proscribed or, can be like conduct alternative, than — profession, because is bad for the just such a likely to be detrimental to the above, 22. Supreme As discussed prece- Court about firearms as a matter of course. See that, explicitly recognized dent has where this Policy AMA H-145.990. The State asserts the is the burdening speech, State’s rationale for contrary particularized view that some show- See, scrutiny applies. e.g., intermediate Went ing required of relevance ques- is to make the Inc., It, 620, 623-24, For 515 U.S. at tioning scrutiny ap- relevant. Because no is 2374, S.Ct. (subjecting regula- at 2375-76 plied by Majority to determine if the prohibiting lawyers tion engaging from in cer- questioning State’s assertion that routine tain advertising of direct forms to intermedi- irrelevant, actually States in the future can do ate scrutiny First Amendment where the law exactly reject what profes- Florida did here: designed improve was quality rep- opinions sional about relevance without evi- profession). utation questions per dence and deem certain se irrel- evant. Here, community the medical approves of—and inquiries thus deems “relevant” — second, government short, regulation; its In questioning. profession as— ... restriction must demonstrate to acknowl- willing Majority whether in- materially advances directly and not, hold- today’s implications edge the third, must be terest; regulation no a rule that announce indeed ing does It, For 515 U.S. narrowly drawn.” Went within professional speech (internal quota- at 2376 115 S.Ct. at relationship a one-on-one the confines Sorrell, omitted); also see tion marks protection. Amendment First entitled Hudson, 2667-68; at Central S.Ct. to obfuscate attempt Finally, in another “[Interme- at 2351. 100 S.Ct. U.S. that doc- Majority asserts holding, the its not ensure scrutiny] standards diate may this Act under discipline facing tors proportional interests that the State’s challenge. a First still assert on resulting placed burdens holding, that today’s true, after but That is not does seek the law but also re- Majority As the fail. challenge will Sorrell, message.” suppress disfavored stated, placed burden peatedly at 2668. merely incidental by the Act is analysis, of this prong the first As Under conduct. professional the. precise interests stated, “supplant bur- we repeatedly Majority also *56 suppo- with other the State by put that forward by the speech State on placed dens 624, It, at 515 U.S. For of a sitions.” Went regulation to the merely incidental (internal quotation marks at 2376 S.Ct. First Amendment no receive profession omitted). scrutiny’s second Intermediate Hence, facing if the doctor protections. speculation mere satisfied prong a “is not Act asserts violating the discipline for rather, governmental a conjecture; defense, con- or the court Amendment First on a restriction seeking to body cite to- sustain simply will challenge sidering his that demonstrate speech must reject the de- commercial opinion day’s Majority that its are real and harms it recites his the assertion The doctor’s fense. a them to alleviate will fact restriction fail since the must protected is at at degree.” S.Ct. Id. material unequivo- speech is placed on burden omitted). (internal marks quotation merely Majority, the according to cally, profession. a incidental clearly established has Court not The it is do- Majority asserts that Though necessary to requirements evidentiary refusing to guarantee than ing no more of intermediate prong survive the second when assert prevail will that doctors if explains It scrutiny, Went For but against disci- defense Amendment First studies,” “the “no presents the State Act, Majority this action under plinary any anecdotal not disclose record [does] will that doctors guaranteeing in fact is to con- tended instead] ... [but evidence fail. tradict, strengthen” State’s rather than is insufficient.
argument, then
evidence
III.
“a few” anecdotal
clarifies that
Id. Sorrell
es-
necessarily
sufficient
are not
stories
to the conclusion
leads
foregoing
to the State’s
posed
the harm
tablish that
First
than intermediate
nothing less
at 2669.
131 S.Ct.
real.
interest
See
Act
scrutiny applies. For
Amendment
of inter-
prong
the third
Finally, under
must
survive, “First,
government
least
apply
not
scrutiny, we do
of mediate
support
interest
a substantial
assert
extreme,
test,
happy
one who is
to answer their doctors’
at the one
means
restrictive
review,
firearms
suffer as a
inquiries
at
the other.
or rational basis
Act;
second,
It,
result of the
the First
The available evidence does establish
This
first,
question-
every-
option to consent to the doctors’
things:
two
the healthcare of
Sorrell,
rarely, giving doctors
very
will be asked
In
the Court
ing on firearms.
patients
to find out that
fewer occasions
decisionmaking can
“private
explained
and thus fewer
non-cooperative
would
and thus in-
partiality
governmental
avoid
deny care on this basis.
occasions to
from First
measures
privacy
sulate
benefit, but
it is a
potential
That
is a
challenge.”
Id.
2669.
Therefore,
great
one with
costs.
slight
Here,
there is no mechanism
because
not meet the
the burden on
does
consent,
decisionmaking
private
patients to
proportionality
discussed
standards
topic
on the
patients
and
doctors
between
Sorrell.
drastically reduced.
has been
of firearms
favoring partiality
Governmental
there is no
important
It is
to recall that
messages
predominates,
ownership
that firearm owners
suggesting
evidence
ownership
drastically
they
care because
were fire-
against firearm
were denied
entirely prevented
only patients
The
who were
if not
arm owners.
limited
those who refused to
to hear them.
denied care were
who want
reaching people
thus,
questions,
answer
doctor’s
Considering only the healthcare of fire-
did not even know whether
doctor
owners, there is no evidence that the
arm
Doctors un-
patient was a firearm owner.
doc-
their care diminished when
quality of
they
jobs—
cannot do their
derstand
they
guns.
out
owned
There is
tors found
liability
malpractice
and risk medical
—if
ownership
that their
sta-
also no evidence
broadly.
they
inquire
fail to
Patients who
fire-
improperly disclosed. Indeed
tus was
inquiries
jobs
resist
make doctors’
more
likely
the ones most
arm owners are
present
doctors with risks
difficult
provided by
information
benefit from the
compliant patients
do not. Doctors
subject,
on this
and there is evi-
doctors
speaking
significant
thus have a
interest
many
firearm-own-
suggesting
dence
freely, making inquiries,
recording pa-
the information.
ing patients appreciated
tients’ answers.
Sorrell,
As in
“The defect
law is
[the]
course,
answer,
if
wish not to
Of
many
fact that
made clear
listeners
Ordinarily,
are free not to.
those
instructive.” Id. at
information]
find [the
questions
who wish not to answer
receive
unques-
“ample protection from [their]
Sorrell,
engage.”
tioned
to refuse to
arguably
who
stand to
people
*58
(internal quotation
at 2670
marks
medically from the Act are those
benefit
omitted).
may freely
patients
These
voluntarily choose not
to answer
who
doctor
questioning
choose another
whose
questions
their doctors’
about firearms.
sensibilities,
comports
patients’
with the
Act,
doctors are free to ask
Without
and there is no
in the record
evidence
questions,
people
who
firearm-related
suggesting
any non-compliant patients
that
may
questions
to answer such
be
refuse
away
who were turned
could not find other
a result.
denied care as
With
doctors.24
questions
refuse to answer
people who
care, see Fla.
may
justify forcing
relinquish
still be denied
Stat.
To
doctors to
790.338(4),
solely
questions
questions
§
firearm-related
their freedom to ask
but
acknowledges only
square.
Majority
24.
that the
But the Court has said that
First
The
right
questions
requires people to
to answer
is suffi-
Amendment sometimes
to refuse
questioning,
protect people
face far more intrusive
shielded
cient
to
from unwelcomed
engage,
public
only by
than
questioning
they
when
enter
their
to refuse to
patients’
options
freedom not to worse than the
protect
by
means to
faced
those who
any
would have to refused to answer
other
questions,
private, po-
answer
the State
tentially
question.
irrelevant
That
patients
show that
faced a dilemma of
right to
to
questions
refuse
answer
refusing
and that
to answer was not
sorts
garners special protection
firearms
belies
Beyond failing
solution.
sufficient
preference
preference
State’s
were
patients
offer evidence
unable
—a
designed
patients
to ensure that
who wish
doctors,
find other
the State has offered no
protect
privacy
will have access to
suggest
patients
evidence to
would
medical care but
designed
instead
anything by answering
have sacrificed
pro-firearm
tect a
message
pre-
the State
no
questions.
doctors’
There is
evidence
fers. See id. at
(explaining
that a
through
the information obtained
State’s failure
address a wider problem
inquiries
these
was misused.
It has not
through a
policy”
“coherent
addressing the
disclosed,
been
and care did not diminish
problem as a whole is evidence that the
patients
those who answered.
asserted interest
justify
cannot
the burden
appear
perfectly
from the record to face a
(internal
placed
quotation marks
presented
free choice when
with a doctor’s
omitted)).
questions
they may
about firearms:
find
(which
question
new doctor or answer the
Finally, one amicus curiae favoring the
and,
any-
if
consequences
has no adverse
Act suggests
improve
the Act will
lifesaving
lead to a
thing,
conversa-
by improving
healthcare
the doctor-patient
tion).
options,
These are not bad
and are
relationship.
argument,
as far
I can
options
far better
than those available to tell, goes
previously,
as follows:
grieving
father whose son’s funeral
unwilling
owners were
to share firearm-
harassing,
protests.
Sny-
draws
vile
See
ownership information with their doctors
der,
options
by patients
Now, however,
faced
who refused to
because doctors are told
questions
answer
questions
about firearms were
not to ask irrelevant
about fire-
dent,
Majority
suggest.
Majority suggests
seems
As Sorrell
who
explained, "[pjersonal privacy even in one’s
voluntarily
particular physician
select
‘ample protection’
own home receives
physician
ask
for her services are entitled
*59
unquestioned right
the 'resident's
to refuse to
protection
ques-
to more
from the doctors’
engage in conversation with unwelcome visi-
tioning
person
than the
in his own home or
”
(quoting
tors.'
vital to effective It be assumed that firearm owners doc- that the flow of information between in keeping “have an interest their [owner- be unobstructed. patient tor and But ship [the Act] confidential. status] reasons, Act im- amicus curiae that interest.” Id. at not drawn to serve it removes a proves healthcare because Indeed, entirely unnecessary it is suspicion that potential obstruction — serve that interest. disclosing firearm privacy consequences of asks, Majority disagrees, and “What The outweighs the health benefits— ownership way protect patients’ privacy better the free flow of informa- blocking that was unnecessarily into inquire pri- than not to doctor and on the tion between Maj. Of Op. vate matters?” at 1215. Legis- If was the subject of firearms. way protect privacy course the best poorly means are goal, its chosen lature’s all, but if not to share information task. In order to remove an suited to the disclosing took that information we view information, to the flow obstruction doctors, very to our doctors would not be altogether. the flow This State eliminated give The information we them effective. withstand intermediate simply does not lives, potential has the to save our so we scrutiny. give freely, should it rather and doctors accept unlikely premise if we Even should ask for it without hesitation. unwilling to Majority that firearm owners who were lists a host of ethical canons de- confidentiality of a ownership signed protect disclose firearm information to support information in passed patient’s this Act was doctors before Majority’s *60 now, point, contrary to the will to so there is no its but willing do confidentiality to sure that breaches of do not canons do not exist assumption, these justify burdening information occur. between doc- For the State limit the flow of interest, protect privacy order to serve this how patient or tor ever, They directly serve it must show that this Act from the doctor. patient by materially us confi- and addresses a real concern. purpose, giving opposite freely information concern that ownership can share firearm sta dence we tus, doctors, files, without hesitation and if recorded medical will not with our entirely speculative that the information will be remain confidential is fear without It, need these assur- and therefore insufficient. For revealed to others. We Went 626, 115 in these situations at at ances hesitation U.S. S.Ct. 2377. because us, literally, to die. Im- quite cause might The record reflects no incidents of fire- communi- in the fact that the medical plicit arm-ownership information from medical ty high such walls around has erected parties, being records disclosed to outside relationship concept is the doctor-patient variety of measures in and there are walls, no those there should be that within that such incidents will place to ensure doctor-pa- The entire edifice of secrets. princi- In to ethical never occur. addition confidentiality is built around a sim- tient confidentiality of medical records ples, the principle: it is better ple, common sense dis- is secured state and federal laws more rather than less for doctors to know by Majority, Maj. Op. cussed at 1213- the conse- because about suggested n. It was also at oral knowing of not are life-threaten- quences that, argument as a result of the Afforda- ing. digitization Act and the of medi- ble Care recognize that medical ethics Failing to records, government may cal bureaucrats confidentiality a means to en- prioritize records, to medical gain somehow access courage an unrestrained flow of informa- information providing government doctor, Majority tion from ownership. on firearm To the extent that policies advising suggests that medical already information is not available such ownership inquire doctors to sources, from the Affordable Care other “may a matter course be in conflict” information explicitly prohibits Maj. n. principles. Op. with ethical being gathered through medical rec- however, just po- such explained, 11. As provided the authorities ords: “None of perfect harmony lices are in with confiden- Care Secretary under [Affordable need to know as tiality principles. Doctors ... construed to authorize or shall be Act] can, they questions much as so ask infor- may be used for the collection limit- freely, questions even be of (A) ownership the lawful relating mation (or no) ed immediate relevance. Both the ammunition; of a firearm or possession or policy principle encourage greater and the (B) of a firearm or ammuni- the lawful use sharing doctor-pa- information within (C) tion; storage of a firearm the lawful relationship, premised assump- tient on an § 300gg- or ammunition.” U.S.C. confidentiality. Contrary to the tion of 17(c)(2). may refrain from Patients also conclusion, not the Majority’s is this status, ownership their firearm disclosing that is practice over-inquiring, which, above, proven has not as discussed out of line with millennia of medical tradi- except anyone’s care to be detrimental tion. pa- ways uncooperative all that befall tients, to answer just those who refuse undoubtedly has an interest in The State about firearms. principles questions to en reinforcing these ethical *61 1262 cept integral person too confidentiality of medical that
Given
to allow its
right too essential to freedom
already,
closely guarded
is
records
just
manipulation
support
those ideas
privacy
prevent
further ensure
need to
Sorrell,
prefers.”
131
government
placed on
justify the burden
misuse cannot
S.Ct. at 2672.
by
Act: “The choice
doctors’
infor-
dangers
suppressing
between
C.
if it
mation,
dangers
of its misuse
that the Act
The State next asserts
one that
the First
freely available is
is
rights.
Amendment
There is
tects Second
Sorrell,
for us.”
Amendment makes
right
keep
that the
and bear
no doubt
(internal quotation marks
at 2671
S.Ct.
guaranteed by
is
the Second Amend-
arms
omitted).
an
ment and that the State has
interest
that, even if
suggests
also
State
unclear,
It
how-
protecting
right.
is
kept confidential from the
information is
ever,
pose
threat doctors
to Second
what
world, patients may still incur ad-
outside
rights.
Doctors do not have
consequences
privacy
and a loss of
verse
weapons nor is
ability
patients’
to seize
professionals are able to
if other medical
any
have ever
there
evidence
ownership status from
determine firearm
agents
are also not
tried to do so. Doctors
the harm ad-
Again,
medical records.
to the extent that
government,
so
entirely speculative.
here
dressed
message
one-sided
doctors send a
personnel
and medical
Those doctors
more harm than
ownership
causes
confidentiality
convey gov-
restric-
by
good,
message
bound
the same
does
might
raise Sec-
just
disapproval
there is no ev-
ernment
tions
discussed. And
any
Like
other
ond Amendment concerns.
fear that
idence to validate the State’s
citizens,
group
private
doctors are free
ownership is re-
patients whose firearm
on firearm owner-
express
views
in their medical files will receive
corded
ordinary expectation
is that a
ship, and
subsequent doctors as a
worse care from
from unwanted
person’s rights to be free
result of this information. Fear of this
amply protected by the “un-
speech are
cannot sat-
type
purely speculative
engage
to refuse to
questioned
isfy the
burden under intermedi-
State’s
at 2670.
conversation.” Id.
It,
scrutiny.25
For
ate
See Went
at
As the
U.S. at
it is true that within the confines
While
office,
can persuade
a con- of a doctor’s
doctors
explained, “[p]rivacy
Court has
purpose.
only speculating
statute has another
As the Court
25. Given that the State is
Sorrell, "[pjerhaps
patients’
explained in
the State
that irrelevant notations in
confidentiality
have addressed ...
files will cause them to receive worse care
could
doctors,
equally
through
policy.... A statute
subsequent
if
a more coherent
it seems
type
present quite a different
plausible
subsequent
of that
would
not more
to think that
presented
the one
here. But the
provide
would
worse care based on a
case than
doctors
purpose
with that
history
patient's
recalci-
State did not enact a statute
documented
Instead,
time,
trance, tardiness,
pay
design.”
who
favoring
amicus curiae
more than what one
that his doctor
complain
him to do so can
doing,
are
which is
the Act claims doctors
right to smoke. The Second
violated his
thereby]
in-
“question[ing]
[patients
right
not include a
to be
Amendment does
terfering]
patients’
with
exercise of the
persuasion. The State’s
private
free from
right
by putting patients
[to
arms]
bear
argument is essential-
Second
position
they question
a
where
hesitant
can
ly “that the force
[doctors’]
ownership
their
of firearms because
to stifle
justify
government’s attempts
disapproval.” Indeed much of
physician
defends the law
it. Indeed the State
good
question patients
what
doctors do is
hafye]
strong
a
in-
insisting that [doctors]
thereby expressing
about certain behavior
reasoning
incompatible
fluence .... This
(psychologists
disapproval of the behavior
Amendment.” Id. at 2671.
with the First
why
say
things
people
certain
ask us
we
with;
having difficulties
cardiolo-
we are
clearly
expressed
has not
a
The State
routinely
unhealthy
if
eat
gists ask us we
preventing
doctors
general
interest
foods;
enough
if
get
internists ask us we
patients’ rights” by
“infringing
from
on
enough
drink too much soda and not
sleep,
rights
certain
giving advice not to exercise
water,
engage in unsafe
and whether we
ways.
in certain
The State has not ex-
causing
(hopefully)
practices),
sexual
though
even
pressed
general
interest
we should continue
question
us to
whether
routinely
range
about a
doctors
ask
in that harmful behavior. No
engage
things
than firearms which are not
other
anyone’s right
that
it is
disputes
one
immediately relevant
to our care and
any
aforementioned activi-
engage
may implicate
rights.
our
This is
which
ties,
absolutely
there is
no evidence
certainly
ap-
almost
because the State
intruding on firearm own-
that doctors are
asking
about these other
proves
doctors
in-
any
than doctors are
rights
ers’
more
however,
topics.
guns,
As for
the State
the above-mentioned
truding on
questioning pa-
disagrees with doctors
right
a
to do some-
rights. That we have
firearms is relevant to medical
tients about
right
to be
thing does not mean we have
care,
dis-
disapproves
persistent
and it
about that
or
questioning
free from
might passionate-
topic
cussion on the
people people
suggestions
of other
—
message.
an anti-firearm
So the
ly convey
advice on
voluntarily went to see for
we
message
and that mes-
State silenced
may tell us
healthy
how to live
lives—who
alone,
protecting
sage
guise
under a
par-
in a
exercising particular right
rights.
It is clear that
State’s inter-
“[t]he
way
ticular
is a bad idea.
burdening
of [doctors]
est
compelling
more
potentially
than a difference of
As for other
nothing
turns on
more
use,
could
persuasion
means of
doctor
at 2672. Such differences of
opinion.” Id.
make bad decisions
people
fear that
would
providing
refusing treatment
such
if
relinquishing
firearms]
their
give up
[such
unless
treatment
worse
justify
truthful
information cannot
given
absolutely no evidence
arms,
there
at
speech.”
on
Id.
content-based burdens
being used. Such
such means
(internal
omit-
quotation marks
2670-71
justify
are insufficient
fears
speculative
ted).
message
fact that a doctor’s
subject to intermediate
that is
safety may be
incompatible
It,
For
515 U.S.
scrutiny. Went
*63
own-
protect
desire to
firearm
the State’s
at 2377.
115 S.Ct.
questioning or
ers from uncomfortable
as noted
respond,
could
Perhaps one
safety does not im-
counseling on firearm
asking
from
above,
doctors
preventing
that
Amendment concerns and
plicate Second
in
situa-
most
questions
firearm-related
a
simply
desire
to silence
belies
State’s
people
put
that fewer
are
ensure
tions will
disagrees.
with which it
message
away
turned
for
being
in
position
a
questions. But the
failing to answer such
D.
a
arms does not include
right to bear
a
about whether
question
not to be asked
finally
that the Act is
The State
asserts
privacy
“Personal
even
one bears arms.
prevent harassment and dis-
designed to
‘ample protec-
home receives
in one’s own
against
crimination
firearm owners.
unquestioned
‘resident’s
tion’ from the
very little evidence—no
provides
State
engage in conversation
right to refuse to
support
anecdotes —to
its
more than a few
Bi-
visitors.’ Watchtower
with unwelcome
being discrimi-
contention that
N.Y.,
Village
Inc. v.
Tract Soc.
ble &
against
nated
and harassed on the basis of
2080,
Stratton,
150, 168, 122 S.Ct.
536 U.S.
It
doubtful whether
ownership.
(2002).
of-
physician’s
205
A
153 L.Ed.2d
such evidence is sufficient to establish
is entitled to no
private
fice is no more
in a “di-
the Act will advance an interest
Sorrell,
at
131 S.Ct.
greater protection.”
It,
way.”
rect and material
Went For
omitted).
(second citation
This state-
(internal
at
only
actual examples
speech
of adverse conduct
it
clear that
will be
while
by
provision,
cited
of this
it is
people
befell
who re-
burdened as
result
State
way
who re-
There is no evidence in the record one
doctors continued to treat
point,
suspect
questions,
or the
doctors would
other on this
but I
fused to answer
significant malprac-
patients away
refusing
seemingly
exposed to
doctors would turn
Indeed,
questions
any
liability
topic.
to answer
on
if
tice
as a result.
Sorrell,
discriminatory
agrees.
conduct
This it cannot do.
See
unclear
(“[Intermediate scrutiny
ex-
discrimination
was
Amendment,
the First
here the
implicate
IV.
point
prohibition [is not]
“focal
of [the]
I also believe the Act to be void for
discriminating against
the act of
individu-
outset,
vagueness. At the
because this
provision
publicly
in the
available
als
“law interferes with the
of free
...
at
115 S.Ct.
services.” 515 U.S.
...,
stringent
a more
vagueness
added).
legislative
(emphasis
at 2347
The
test should apply.” Vill.
Es-
of Hoffman
that the Act was in-
history makes clear
Estates, Inc.,
Flipside,
tates v.
Hoffman
primarily
prohibit
speech,
tended
489, 499,
1186, 1193-94,
455 U.S.
102 S.Ct.
recognize
may prohibit
I
though
(1982);
Because to me agree. would It is also unclear of com courts vague persons “in terms so of all question could ask the necessarily guess at how doctors must intelligence mon they may, Majority states patients, as application, as to its meaning and differ its on the inquiries must also base if doctors pro essential of due the first violates [it] Majority patient, of each specifics Specialty v. Mexican of law.” Hams cess (11th they gives must. The Act itself suggests Foods, Inc., F.3d Cir. omitted). as to whether or not that no indication 2009) (internal marks quotation to shield doctors specificity required ask think that when doctors might One intelli- discipline. People of common as a ownership about firearm questions guessing. are left gence course, they do not “know” the matter irrelevant, nor the rec to be questions vague- highlighting Further the Act’s record) (the questionnaire itself is ord ness, clear on wheth- the State is not even belief “good of a faith” kept the absence advisory or inquiry provision er the might relevant. Some that the record is mandatory. Initially, responsi- the Board that doctors are free to conclude from this enforcing the Act informed doctors ble for asking all firearm continue about Then, mandatory. the Board that it was they did before the Act’s ownership changed course and stated that was hand, legisla On the other passage. advisory. Similarly, as discussed Part history suggests question that such tive I, inqui- characterization of the the State’s information, is ing, patient-specific absent internally contradictory, ry provision is de- exactly type the Act was advisory and at scribing it at times as prohibit. The Act itself is not designed proscription. Again, people times as point. this clear on intelligence guessing common are left what prohibits. tell, Majority far as I can be- As who continue to ask lieves that doctors plaintiffs have re- surprisingly, Not matter of ownership firearm as a about variety ways, to this Act in a sponded be in violation of the Act. The course will confirming people further of common Majority says physician may that “a make intelligence do not know what the Act so inquiries patients, firearms or all Maj. n. Op. hibits. See 5. Some doctors good long as he or she does so with making inquiries continued have inquiry ... that the is relevant faith belief ownership as a matter of course patient’s safety, medical care or because believe the Act allows them Maj. at 1228. safety Op. of others.” ques- stopped to do so. Others have *67 Majority following the cave- But the adds believe, tioning though they consis- —even good at: the faith belief must be “based on inquiries policy, tent with AMA the Maj. specifics patient’s the case.” they be- good patients for —because requirement at 1228. That is not Op. requires the Act them to do so. lieve itself, many doctors do not the Act at least common intelli- possess Plaintiffs specificity necessary is to believe that such too, gence, they, guessing. are left inquiry make the and record relevant. However, Majority opinion and its rationale would not be The purposes the Act’s Majority the confusion. The requirement. add to achieved without such medically “irrelevant” Therefore, supposedly I do not know whether the likens ownership to questioning about firearm Majority wrong is to add smoking patients medically hab- tance from on a patient’s impor- about a questioning its, clearly medically subject, relevant. Of tant persist is doctors should for the which course, good patient. the Majority example, could have likened the For if a questioning questions patient about doctor knows a smokes and “irrelevant” advises so, game, dangers doing baseball but that would him of the night’s patient last Majority’s chosen become actually prove irritated. While the doctor inapplicable perhaps rationale is here. Based should take a different approach argument regulates counseling, certainly its that the Act con- to his he should not only incidentally speech, simply burdens cease the counseling duct because the Indeed, Majority had no choice but to liken is irritated. the doctor will likely questioning ownership persistent about firearm have to be more and irri- medically-relevant inquiries tating because other this smoker than with the Majority’s argument hinges responds entire on smoker who favorably to the doc- questioning counseling, about firearm owner- tor’s initial equating signaling that the question- message to medical conduct. If the doctor’s has ship been received. ing arguably medically is not at least rele- might think that One the same is true of
vant, possibly how can it be considered firearm owners. If a doctor’s initial coun- conduct, subject seling patient, is well-received scrutiny? questioning without And if the doctor knows that message has been (at cases) many much is least so like received, subject so he need not broach the always subject medical conduct that it is again. But if a counseling doctor’s initial how will regulation, doctors know when resistance, suggests is met with intuition medically that medical conduct is not rele- patient may that this be—like the smoker vant? counseling subject resistant to on the —the
Compounding problem, the State one most in need of further counseling. Here, suggests uncertainty. that doctors can and should con- If creates patients safety. persists, harassing tinue to counsel on firearm doctor he is no doubt Majority is, however, explains patient. question are free to The briefly. if good necessary? do so—albeit So it is that harassment instructions, give safety firearm patients course, Of does not know with doctor possibly questions how can it bad ask any great precision because he cannot ask specifically order to tailor ownership, compounding That, me, those instructions? it seems to problem per- further. Medical intuition suggests asking about firearm owner- haps persistence tells the doctor that always ship Assuming is indeed relevant. necessary, left but the doctor is with no however, mandatory, the Act is I must guidance on whether this intuition is suffi- myself guessing confess that I am left (i.e., persistence cient to render harass- inquiry provision prohibits. what the ment) necessary purposes of the Act. provision, Legislative history suggest The harassment which bans would that this harassment, only unnecessary exactly point also leaves at which doctors are *68 people intelligence guessing supposed stop, simply of common to it is not clear but may go may pun- about how far in counsel- the Act be doctors what doctors safety. Intuitively, doing. Majority’s sugges- ing patients ished for The brief, initially may engage gen- doctors are met with resis- tion that doctors when safety If too good counseling. counseling no because that is does eralized discussions generic pediatri- brief or too know, patient’s from the may the doctor —because sought comply inquiry cian with the no reaction, the initial discussion did that Act—but it provisions harassment Majority’s further The good whatsoever. that proven persistent, specif- can be more cases, that, in some the need to suggestion ically counseling pre- tailored would have clear, also offers doctors no persist will be vented a child who found her father’s load- proceed in the vast guidance on how to ed, accidentally unlocked firearm from cases, per- where the need to majority of herself, shooting jury may I well suspect again, people Yet sist will not be obvious. regardless the doctor And find liable. guessing. are left intelligence of common attaches, malpractice liability I whether feel for that doctor who will have the death uncertainty compounded by Again, the is of a child on her conscience for the rest of claims firearm safe- the fact that the State life. her often, always, good if ty counseling is not counseling good If that is for patients. jobs enough Doctors’ are hard when the State does not enact laws that force them then it makes no sense to limit
patients, asking questions to think twice about counseling to the distribution of a that may providing information that save lives. pamphlet generic and a discussion is vague is,Act thinking Given how this twice Instead, likely impact. to have little to no nearly enough will not be for doctors to counseling good, if the common sense figure protect out what to do to they ought persist tells doctors hand, patients, comply on the one and to point even counseling, past with the on the other. anyone’s guess It is whether irritation. may doing continue so after to- doctors V. they day’s holding, or whether will instead great The Act silences a deal of practice medicine. lose their licenses group speakers topic. one on one subject Precedent therefore directs us to con- people put The who forward these scrutiny. the Act to at least intermediate tradictory internally at times inconsis- Majority’s attempts distinguish The interpretations possess tent of the Act justifi- persuasive, case law are not and its common, if If exceptional intelligence. not expanding cations for a heretofore exceed- they guessing are left about what ingly class of narrow prohibits, proves that all but that the Act burdened without the First implicating Sadly, I vague. suspect that some of equally unavailing. Amendment are continued to practices doctors have holding today unprecedented, reached engage despite probably the Act will essentially says profes- that all licensed subject these well-intentioned doctors to rights sionals have no First Amendment them, I discipline, simply but like do speaking when to their clients or know. patients private. says This in turn have no First Amendment Exacerbating pros- the situation is profes- receive information from licensed pect malpractice liability. If firearm frightening prospect. sionals—a safety counseling brief of ex- —whether capable reducing pros- tended —is Majority applied appropri- Had the injuries, pect of accidental firearm related scrutiny, ate level of we would have to is, as the AMA believes it then to avoid affirm the district court’s decision. This liability, designed prevent firearm law is not irrelevant provide doctors should *69 doctor-patient harming the speech America, irrelevant it allows UNITED STATES
relationship, because relationship to continue speech Plaintiff-Appellee, within stopping Far from it did before. much as v. office, speech a doctor’s irrelevant virtually all irrelevant allows Act instead WATKINS, Charles Marvin virtually stopping while speech to continue Defendant-Appellant. alike— and irrelevant all —relevant is topic: firearms. This law single about a No. 12-12549. improve healthcare be- designed not cause, community the medical Appeals, as far as States Court of United concerned, make healthcare this law will Eleventh Circuit. protect designed This law is not
worse. July information privacy of the privacy because already secured. This law at issue is protect Second Amend- designed doctors have no au- rights
ment because private not used their
thority have —and compel firearm positions power —to weapons. This relinquish owners stop perceived designed
law is instead to con- agenda, and is difficult
political for that designed purpose
ceive of law First Amendment
that could withstand
scrutiny. particularly if—doc- perhaps
Even if— political cam- actually waging
tors were merely being perceived
paign rather than so, would doing the First them from laws like the Act. “What
protect troubling is that there is no evi-
is more actually pursuing
dence that doctors agenda patients. Doctors
political patients from exercis- prohibiting
are not arms; are, per- to bear
ing not to do so—or
haps, convincing patients safely. precisely This is
to do so more the First Amendment
type
designed protect. Because asking from even the first
hibits doctors conversation, the Act is
question Accordingly, the district
unconstitutional. affirmed, and I
court’s decision should be dissent. respectfully
therefore