*1 mеaning within the “under indictment” WOLLSCHLAEGER, Dr. Bernd Dr. Ju to some points He also of that statute.7 Schaechter, Tommy dith Dr. Schecht legisla- of federal firearms other sections man, Academy American of Pedia reading a narrow of “under tion to advance trics, Chapter, Florida American indictment.” Academy Family Physicians, of Flori as informa But none of these sections is Phy Chapter, College da American of of express statutory definition tive as sicians, Inc., Chapter, Florida Roland indictment”: term ‘indict “[t]he “under Gutierrez, Stanley Sack, Shannon an indictment or informa ment’ includes Fox-Levine, Plaintiffs-Appellees, a crime tion in court under which v. a term by imprisonment for punishable GOVERNOR of the State OF FLORI exceeding year may prosecuted.” one DA, Secretary, Florida, State of Sur 921(a)(14). § look We must 18 U.S.C. geon Florida, General of State Of law to determine whether Saiz’s cir state Secretary, Health Care Administra satisfied that broad definition. cumstances Florida, tion of the of Division State Hill, 883; also 210 F.3d see United Director, Department Florida of (5th 66, 67-68 Chapman, 7 F.3d States Health, Quality Division of Medical Cir.1993) (“The firearms statute federal Assurance, George Thomas, Jason defers to state law on the definition Rosenberg, Zachariah, Zachariah P. law, ... ‘conviction.’.... Under Texas Tucker, Espinola, Elisabeth Trina remained ‘under indictment’ [Defendant] Stringer, Orr, Gary Merle James Win conviction.”). For during appeal his Sanadi, Nuss, chester, Nabil El Robert above, it clear that the reasons discussed Bearison, Lage, Fred Donald Onelia defendants who are New Mexico considers Mullins, Brigette Goersch, Rivera discharge to conditional to remain Levine, Bradley Defendants-Appel expires. until probation under indictment lants.
III. Conclusion Association, County Medical Broward Society, County Pediatric Broward reasons, AFFIRM foregoing For the we County Society, Palm Beach Medical sixty-month imposed by sentence Association, Florida Public Health court. district University Miami of Law School Clinic, Children’s Health
and Youth Inc., Early Legal Duty, A care is Foundation, Initiative Childhood Pediatrics, Academy American Academy Ado of Child and American Psychiatry, American Acade lescent Family Physicians, my American sug- predicates only posses- argument, there were factual Although Saiz was convicted sion, 922(n) had gesting received a firearm that argue inap- § he had also he does not foreign com- transported in interstate or but been plicable because he was under indictment suggest person who that a possessing merce. We do not barred from a firearm was not Rather, merely possesses a consistently indictment and he is under under the statute. meaning prohibited firearm is within argues that he not under indictment. was because, 922(n). § at oral This is as Saiz conceded *2 Academy Orthopaedic Surgeons, College Surgeons, Ameri
American Medicine, College
can of Preventive College
American of Obstetricians Gynecologist, Congress American
And Gynecologists, And
of Obstetricians Psychiatric Association,
American Jurispru
Center for Constitutional
dence, Responsible Doctors for Gun
Ownership, National Rifle Association America, American Medical Associ
ation, Florida, Aclu Foundation County Society,
Alachua Medical Association,
American Public Health Suicidology,
American Association of Awareness Edu
Suicide Voices of
cation, Law Center to Prevent Gun
Violence, Amicus Curiae.
No. 12-14009. Appeals,
United States Court of
Eleventh Circuit.
July
Douglas Hallward-Driemeier, Bruce S. Manheim, Jr., Augustine Ripa, Julia Lew- is, LLP, Vice, Ropes Gray, & Daniel R. DC, Kainen, Washington, Dennis G. Weis- Mark, PL, Lucas, berg Kainen Hal M. Hal Lucas, P.A., Mullins, M. Edward M. Asti- Davis, Miami, FL, garraga for Plaintiff- Appellee. Vail, Winsor, Bondi,
Jason Allen C. Pam Osterhaus, Timothy David Attorney Gen- Office, Tallahassee, FL, eral’s for Defen- dant-Appellant. WILSON,
Before TJOFLAT and
Circuit
Judges,
COOGLER,*
District Judge.
ON PETITION FOR REHEARING
TJOFLAT,
Judge:
Circuit
sponte
We sua
vacate and reconsider
original opinion
matter,
our
report-
ed at
The Governor of the State of officials, other Florida and members of the Board of Medicine of Depart- the Florida “State”), ment (collectively, of Health appeal from the grant District Court’s summary judgment injunction and an favor of a group physicians physi- cian advocacy groups (collectively, “Plain- tiffs”) enjoining enforcement of Florida’s (the “Act”) Privacy Firearm Owners Act1 on First and Fourteenth Amendment grounds.
Society traditionally physi has accorded high cians a degree of deference due to * (codified Coogler, Honorable L. Scott United States 1. 2011 Fla. Laws 112 at Fla. Stat. Judge 381.026, District for the 456.072, 790.338). Northern District of §§ Alabama, sitting by designation. *10 Act, knowledge, cy. understanding Given this of the superior their such as factors education, conquer role as in “symbolic light longstanding authority Berg, Paula and death.” good ors of disease of States to define the boundaries of Theory Amendment is, Toward A First practice, medical we that the Act hold Right and the Discourse face, Doctor-Patient a permissible on its restriction of Advice, 74 B.U. Medical Receive Unbiased speech. Plaintiffs remain free— physician (1994). 201, 226 This deference L.Rev. always have been—to assert their apex in the examination room. reaches its rights First Amendment as an affirmative physician’s exami patient enters When in any brought against defense actions room, position is in a patient nation not, by striking them. But we will down must powerlessness. The relative Act, effectively hand Plaintiffs a decla- physician’s her trust place his or ration that such a defense will be success- au physician’s to the guidance and submit ful. thority. we reverse the District Accordingly, authority responsibility. comes With summary grant judgment Court’s society long has im- protect patients, To Plaintiffs, injunc- favor of and vacate the physicians certain duties and posed upon against tion enforcement of the Act. operate to define the restrictions keep- care. In good medical boundaries I. tradition, passed with this the State ing the Act. On June Florida Governor Rick protect patient privacy Act seeks to
The signed the Act into law. The Act Scott by-restricting inquiry irrelevant and rec- 790.338, § created Fla. Stat. entitled ord-keeping by physicians the sensitive firearms; concerning privacy “Medical ownership. The Act does issue of firearm prohibitions; penalties; exceptions,” and speaking from with prevent physicians Bill amended the Florida Patient’s generally. firearms Nor patients about Responsibilities, Fla. Stat. Rights and prohibit specific inquiry it or record- does 381.026, § to include several of the same patient’s about a firearm-owner- keeping amended Fla. provisions. The also ship physician status when the determines 456.072, § entitled “Grounds for dis- Stat. faith, on the circumstances good based enforcement,” pro- cipline; penalties; case, that such informa- patient’s of that measures for violation disciplinary vide for patient’s medical tion is relevant passed legislature of the Act. The Florida safety, or the of others. care or response complaints the Act in personnel that medical were constituents Rather, the Act codifies the common- questions regarding asking unwelcome good conclusion that medical care sense ownership, and that constituents record-keeping or require inquiry does not or discrimination on ac- faced harassment unnecessary to a regarding firearms when ques- refusal to answer such count of their patient’s especially not when care— simply or due to their status as fire- record-keeping constitutes such tions inquiry arm owners.2 upon patient priva- a substantial intrusion privacy, example, widely publicized her the mother refused in a incident an invasion of 2. For Ocala, pediatrician place pediatrician, then terminated took dur- to answer. visit, relationship mother patient’s their and advised the a routine asked a mother thirty days to a new doctor. Fla. kept any her home. she had find whether she firearms in ' Servs., question H.R. Comm. on Health & Human she felt that the constituted Because *11 firearms, provides, part, The Act relevant owns practitioner unless the or practitioners licensed health care and facil- facility in good believes faith that the “in- (i) “may intentionally ities enter” infor- formation is patient’s relevant to the medi- concerning patient’s ownership mation a of safety, others,” cal care or or safety of patient’s firearms into the medical record (iii) 790.338(2); § “may not discriminate” practitioner that the knows is “not relevant against patient a on the basis of firearm patient’s safety, medical care or or 790.338(5); (iv) § ownership, and “should others,” (ii) safety 790.338(1); § of unnecessarily refrain from harassing pa- a respect a patient’s right privacy “shall tient about firearm ownership,” refrain” inquiring and should from as to 790.338(6).3 § patient a family whether or his or her (2011) Analysis (Apr. cerning ownership H.B. 155 Staff 2 patient’s firearm into the 2011). Hiers, Family pedi- practitioner See also Fred medical and record if the knows that tangle gun question, atrician such pa- over Ocala Star- information is not relevant to the Banner, July safety, tient’s medical http://www.ocala.com/ safety care or or the others. article/20100724/articles/7241001. (2) practitioner A health care licensed un- incident, physicians In another refused to chapter der facility 456 or a health care li- provide nine-year-old medical care to a "be- chapter respect pa- censed under 395 shall a cause wanted to know if [the child's right privacy tient’s and should refrain family] had a firearm in their home.” Audio making inquiry asking a ques- written or Regular CD: Session Senate Floor Debate on concerning ownership tions of a firearm by (Apr. HB held the Florida Senate 27- by patient or ammunition by family a 28, 2011) (remarks Evers) (on at 26:32 of Sen. patient, member of the presence or the of a file with Florida Senate Office of the Secre- private firearm in a home or other domicile of tary). example, legislator In another a stated patient family or a patient. member of the that, during appointment daugh- an with his Notwithstanding provision, a health care ter, pediatrician legislator a asked that the practitioner facility or health care gun remove his from his home. Audio CD: good faith believes that this information is Regular Session House Floor Debate on HB patient’s relevant to the medical care or safe- by Representa- held the Florida House of others, ty, may or the make such a 26, 2011) (remarks (Apr. tives Rep. at 26:20 inquiry.... verbal or written Artiles) (on Repre- file with Florida House of (5) practitioner A health care licensed un- Clerk). legis- sentatives Office of the Another chapter der facility 456 or a health care li- reported complaint lator a from a constituent chapter may censed under not discrimi- provider that a health falsely care told him against solely upon nate a based disclosing awas Med- patient's right exercise of the constitutional (remarks requirement. icaid Id. at 13:40 possess own and firearms or ammunition. Brodeur). Rep. legislator relayed That also (6) practitioner A health care licensed un- complaint separated about a mother who was chapter der facility 456 or a health care li- from her children while medical staff asked chapter respect pa- under 395 shall censed the children whether the mother owned fire- legal right possess tient’s to own or a firearm arms. Id. unnecessarily and should refrain from harass- Further incidents are recounted in a Joint ing patient ownership during about firearm Undisputed Statement Facts filed an examination.... parties in the District Court below. Wollsch § Fla. Stat. 790.338. Farmer, laeger v. No. 1:11-CV-22026 provisions The Act also contains related (S.D.Fla. 11, 2011), Nov. Doc. 87. concerning emergency personnel medical and challenged text provisions The full of the companies, insurance affirming right as follows: patients physician ques- to decline to answer (1) tions, practitioner A health care affirming licensed un- that the Act does not alter chapter der [of the Florida existing regarding or a physician’s Statutes] law authori- facility health care chapter 790.338(3), (4), licensed under patients. § zation to choose (7). [of Statutes] Florida not inten- appear challenge Plaintiffs do not tionally and, any enter provisions, disclosed information con- these as the District Court teenth Amendments of the provisions of the of the United States Violation Constitution, declaratory ac- grounds disciplinary seeking for Act constitutes 456.072(2). § Fla. Stat. injunctive relief. Plaintiffs contended that tion under 456.072(l)(nn). Furthermore, unconstitutional, imposes § “[viola- an con- (1)- of subsections provisions speech, tions tent-based restriction on is over- (4) ac- grounds disciplinary broad, unconstitutionally constitute vague. and is *12 456.072(2) and §§] under Stat. [Fla. tion 14, 2011, September finding that On 790.338(8). Thus, § Fla. Stat. 395.1055.” likely were to succeed on the Plaintiffs Medicine of the Florida if the Board of merits, en preliminarily the District Court (the “Board”) finds of Health Department joined inquiry, enforcement of the record- Act, the has violated the physician that a discrimination, keeping, and harassment measures in- disciplinary faces physician Act, together of the with the provisions fines, practice, return cluding restriction discipline physi for provisions providing fees, suspension or revo- probation, Wollschlaeger Act. cians who violate the license. Fla. of his or her medical cation Farmer, F.Supp.2d 814 1384 456.072(2). investigation An culmi- § Stat. (S.D.Fla.2011). initi- may action be nating disciplinary 2, 2012, per On June the District Court Depart- the physician by a against ated enjoined the in manently enforcement of triggered by ment of Health or discrimination, and quiry, record-keeping, § complaint. Fla. Stat. 456.073. citizen’s togeth provisions harassment of the Act— 2, 2011, meeting of minutes of a June disciplinary provi er the related with Rules/Legislative Committee holding, on motions for sum cross sions— prepared Board is Board indicate mary provisions that all four judgment, against disciplinary proceedings to initiate Amendment, the First facially violated Act, stating who violates physician inquiry, record-keeping, “the determined [has] Committee provisions of the Act were void harassment under falls [the Act] violation [that] Farmer, Wollschlaeger v. vagueness. for legal obligation with a comply failure to (S.D.Fla. 1251, 1267-69 F.Supp.2d disciplinary guidelines current and the 2012). apply.” Fla. Bd. of this violation would Comm., Meet- Rules/Legislative Medicine found that Plaintiffs The District Court (Jun. 2011), available at ing Report, Plaintiffs standing to sue because had http://wwlO.doh.state.fl.us/pub/medicine/ to avoid engaging self-censorship were
AgendaMnfo/Public_Information/Public_ action, consti- disciplinary which potential Minutes/2011/Committees/R-L/060211_ injury-in-fact that was cognizable tuted Minutes.pdf. to the Act and redressable fairly traceable at 1258-59. The Dis- by injunction.. Id. days four after Gover- On June claims law, also held that Plaintiffs’ Plaintiffs trict Court signed the Act into nor Scott finding delayed review ripe, § the were against 1983 action filed a U.S.C. Plaintiffs, who hardship “cause to District Court would State in the United States Florida, engage to in self-censor- alleg- would continue for the Southern District development factual and that further record-keeping, ship,” dis- inquiry, that the unnecessary. Id. at was crimination, of of the issues provisions and harassment and Four- 1259. facially violate the First standing chal- held, lack apply physicians, Plaintiffs provisions do not because these lenge regulate any them. physicians do not conduct or merits, Turning to the the District Court harassment provisions of the Act could not found that Act imposed pass a content- constitutional muster. Id. at 1265-67. physicians’ speech based restriction on on The District Court found that the State of firearms. Id. at 1261: The had failed provide any evidence that the rejected District Court argu- confidentiality State’s regarding information ment that the Act permis- patients’ risk, “constitute^] firearm ownership was at regulation professional sible or noting that a may simply decline to occupational conduct that imposed provide information, a mere such and that state speech.” incidental burden on Id. at 1262. and federal pertaining laws to the confi- that, The District Court noted unlike dentiality of medical records provide ade- Act, provisions of the regulations quate protection “[s]uch patients. Id. govern the access or practice of a profes- regard With regulation of profes- sion; they do not burden prohibit sions, truth- the District Court found that the Act *13 ful, non-misleading speech scope within the lacked “narrow specificity,” id. profession.” Id. (quotation omitted), marks because the Act directly targets speech merely rather than The District Court then assessed the imposing an incidental speech. burden on State’s asserted passing interests in the Id. at reasons, 1266-67. For similar Act. The District Court acknowledged that District Court further found that the Act is the State has an in interest protecting its not the least restrictive means of achieving citizens’ Second Amendment right keep Thus, State’s interests. Id. at 1267. arms, and bear but found that right such a the District Court held that the “balance of is “irrelevant” to the Act and therefore is tip interests significantly in favor of safe- legitimate not “a or compelling interest for guarding practitioners’ ability speak it.” 'Id. at 1264. The District Court found freely patients.” to their Id. that, because the State acted on the basis purely anecdotal information pro- and The District Court also held that vided no evidence that discrimination inquiry, record-keeping, and harassment harassment based on firearm ownership provisions of the Act were unconstitution- pervasive, the State does not legiti- ally have a vague. Id. at 1267-69. regard With compelling mate or interest in protecting to the inquiry and record-keeping provi- sions, its citizens “from receipt barriers the District Court found that medical care arising from [such] discrimi- “relevance provide standard” failed to suf- nation or harassment.” (quotation Id. guidance ficient as to what conduct the Act omitted). However, marks prohibits. District Id. at regard 1268. With Court found that legitimate— Florida has provision, harassment the District Court perhaps but compelling “in noted that the term “harass” has an ordi- —interests protecting patients’ privacy regarding nary meaning clear, id., that is readily but their or use” and in the “[w]hat constitutes ‘unnecessary harass- regulation professions. Id. at 1265. ment’ anyone’s is left to guess,” id. at 1269. The District Court noted that it did not Balancing physicians’ free speech rights need to address argument Plaintiffs’ against legitimate the State’s interests the Act is overbroad because doing so protecting patient privacy regulating and would not change the outcome. Id. at professions, the District Court held 1270 n. 7. regardless of scrutiny whether strict that — or some lesser Thus, standard in- applied the District finding the —the Court— quiry, record-keeping, discrimination, remaining provisions and of the Act severa- however, for we an independent Plaintiffs’ motion sum- conduct' ex granted ble— record, granted part subjecting and and amination of the whole mary judgment, findings motion for sum- the District Court’s of ‘constitu part the State’s denied According- at 1270. tional facts’—those facts “that mary judgment.4 Id. involve the ly, permanently [defendant] the District Court en- reasons took the chal enforcing lenged from the record- action”—to de novo joined the State review. ACLU Fla., harassment, Bd., Cty. and discrim- Inc. v. Miami-Dade keeping, inquiry, Sch. (11th Cir.2009). Act, 790.338(1), § 557 F.3d provisions ination We (2), (5), (6), enforcing questions concerning and also review de novo 790.338(8), provided jurisdiction, § to the extent that it our matter such as 790.338(1) (2) Basham, standing ripeness. § con- that violations of Elend (11th Cir.2006). action, 1199, 1204 disciplinary and 471 F.3d grounds stitute for 456.072(l)(nn), pro- § the extent that it 790.338(1), (2), §of
vided that violations III. (5) (6) grounds disciplin- constitute begin by taking up We the issue of ary action. Id. justiciability. The District Court found July timely ap-
On State standing Plaintiffs had to sue because judgment. pealed the District Court’s We engaging self-censorship, were jurisdiction pursuant have to 28 U.S.C. cognizable injury-in- which constituted a §§ *14 and 1291. 1331 fairly fact traceable to the Act and re- by injunction.
dressable
880
F.Supp.2d
1258-59. The State contends that this
II.
was
error, because the Act
prohibit
does not
grant
We review a district court’s
physicians
asking patients
from
about fire-
summary judgment
de novo. Thomas
arm ownership, providing
firearm
Inc.,
1361,
Cooper Lighting,
v.
506 F.3d
counseling, or recording information con-
(11th Cir.2007). “Summary judg
1363
cerning patients’
ownership.
appropriate
gen
ment is
when ‘there is no
argues
physicians may
that
engage
State
uine issue of material fact and ...
in such conduct when it is relevant
to
moving party
entitled to a
a
judgment
is
as
care,
relevant,
patients’
and even
not
when
”
(alteration
original)
matter of law.’ Id.
merely suggests
physicians
the Act
that
56(c)). A
(quoting
genuine
Fed.R.Civ.P.
inquiring
“should refrain” from
as to fire-
issue of material fact exists “if the evi
790.338(2).
§
ownership.
arm
Fla. Stat.
jury
dence is such that a reasonable
could
hortatory language,
argues,
Such
the State
nonmoving party.”
return a verdict for the
physi-
a
that
does not constitute mandate
v. Four
United States
Parcels
Real
Thus,
inquire.
cians must not
the State
Cir.1991)
(11th
1428,
Prop., 941 F.2d
1437
Act
in fact
argues, because the
does not
omitted).
(quotation marks
actually prohibit
the conduct Plaintiffs
in,
a
legal
engage
standing
We review district court’s
wish to
Plaintiffs lack
ordinarily
they
Act
not
challenge
determinations de novo and
re
to
because
have
Moreover,
findings
injury-in-fact.
view its factual
for clear error.
demonstrated
Amendment,
argues,
obligation
In the context of the First
the State
we have an
790.338(3), (4), (7), finding
§
granted
physicians,
that
4. The District Court
the State’s mo
summary judgment
standing
challenge
respect
tion for
with
Plaintiffs lacked
these
Farmer,
provisions
provisions. Wollschlaeger
apply
of the Act that neither
1251,
(S.D.Fla.2012).
practitioners
regulate any
by
F.Supp.2d
nor
conduct
Indeed,
leaving
a mere recommendation
the Constitution.
aside
read the Act as
Act,
in-
physician facing malpractice
refrain
irrelevant
lia-
physicians
firearms,
about
quiry
record-keeping
bility
professional
for a wide swath of
ac-
valid.
to construe the
tivity involving speech
theoretically
order
could
raise a First Amendment defense.
that the District Court
We find
mounting
challenge
In
a facial
Plaintiffs’ claims are
properly held that
Act, however,
sought
Plaintiffs
a First
justiciable.
standing,
In
to have
“a
order
brought
Amendment defense to
action
injury
an
present
claimant must
against
physician
based on
tar-
concrete,
and actual or im
particularized,
geted by the Act. The State contends that
minent; fairly traceable to the defendant’s
only proper
vehicle for Plaintiffs’ First
behavior;
likely
to be re
challenged
proceeding
Amendment defense is a live
ruling.”
dressed
a favorable
Davis v.
words,
brought under the Act. In other
FEC,
724, 733;
2759,
(2008).
arguing
challenge
facial
Plaintiffs’
However,
ily harassing patient about firearm forgoes sion or in expression order to ownership just patient poten- as a could — ” avoid enforcement consequences.’ (quot tially file a alleging physi- lawsuit that a Cole, ing Pittman v. 267 F.3d malpractice by cian committed unnecessar- (11th Cir.2001))). ily harassing about other topic. physician could choose admit To a cognizable establish self- purportedly harassing speech to the censorship injury and purposes for the of a plead claim, the First Amendment as an affirma- plaintiff First Amendment “must defense, that, tive contending effect that the show as a result of his desired ex (1) rejection court’s of the affirmative defense pression, prose he was threatened with (2) (3) cution; would constitute state action in violation of prosecution likely; or battery questions prosecution.” counseling a credible threat of and re- there is (internal quotation marks omit- Id. at 1260 garding safety health and risks (including, ted). proceeds under plaintiff If a example, poisonous chemicals eredible-threat-of-prosecution prong, he home, alcohol, tobacco, swimming and “[FJirst, that he seri- must demonstrate: Act, pools). After passage of the Plaintiffs engage expression ously wishes have practice curtailed or eliminated this arguably by perti- is at least forbidden facing discipline.5 for fear of second, law, nent and that there is at least minimal the chal- probability
some Plaintiffs have established that if lenged rules will be enforced violated.” they engage wish to in conduct that is at omitted) (citations omitted) Id. (emphasis arguably least forbidden the Act. In omitted). (quotation marks “If a chal- practice medicine, their preventative enacted, recently lenged law or rule was or questions Plaintiffs wish to ask and record enforcing authority defending if the regarding information firearms as mat court, challenged law or rule an intent ter of making particu routine —without Id. may to enforce the rule be inferred.” larized determination of relevance —which at 1257. implies inquiry some such and recor- will that, dation not be relevant explain part as health
Plaintiffs care, patients or others and thus practice preventative physi- some routinely prohibited by would be the Act. The Act patients they cians ask whether recently was verbally enacted, firearms —either or via a and the State is own it, defending screening questionnaire provide fire- so we infer that there is —and safety counseling, part larger probability arm of a at least some that the Act will Complaint lays specifics out the firearm Plaintiffs' and entered related in- physicians’ practices regarding They individual formation into their medical records. inquiries safety counseling. firearm For practice pas- have even after continued Act, example, prior passage of the Dr. sage they good of the Act because believe in Wollschlaeger patients complete asked his questions faith that such and information are questionnaire questions However, that included re- patients’ relevant to their care. garding ownership, routinely they asking follow-up ques- now refrain from orally patients they asked whether owned fire- patients parents tions when or their seem present when, arms if other risk factors were upset by screening question, the initial —such home, patients as when had children in the Act, prior passage would not addiction, suffering depression, were Similarly, have refrained. Dr. Gutierrez con- ideation, family an suicidal had unstable envi- patient questionnaire tinues to use a that in- *16 ronment, were involved in a domestic- question ownership, cludes a about firearm provide violence situation —to firearm asking any but has resolved to refrain from counseling patient’s to the tailored circum- follow-up questions patient initially should a Act, passage stances. After of the Dr. appear topic. disinclined to discuss the Dr. Wollschlaeger has removed the firearms-relat- previous practice of be- Sack has ended his questions questionnaire his ed from and no ginning safety counseling by his firearm ask- longer orally questions regarding asks firearm ing patients they a firearm in whether have ownership part or discusses firearms as of his However, he continued to the house. has preventative counseling. standard framing provide safety counseling, it firearm pa- hypothetical terms not tailored to his physicians party The other who are to this individual Dr. Fox-Le- tients’ circumstances. practice asking suit have limited their Act, has, passage removed vine since questions providing counseling and about questions regarding safety, firearm varying but still do to de- so questionnaire, intake but continues to ad- grees. example, prior passage her For to Act, patients safety, vise some about firearm fram- Dr. Schaechter and Dr. Schechtman rou- tinely patients questions regard- hypothetical asked their her advice in terms. Thus, objectionable. predictably deem Without Plaintiffs if violated.6 be enforced stage, at this the ultimate cognizable determining, self-censor- a have established accept Amendment argument, their First Plaintiffs’ we injury for merits of ship to is at language point Plaintiffs claims.7 that the Thus, vague. Plaintiffs arguably least cogni a Similarly, to establish self-censor- cognizable have established pur injury for the self-censorship zable claim. injury vagueness their ship for claim, plaintiff must vagueness poses of “(1) seriously wishes that: he show they that curtailed their Plaintiffs claim (2) [speech] arguably would [speak]; such inquiry counseling practices and firearms rules, the rules are by the but be affected Act, they that would re- and due vague they apply as arguably at least Thus, the Act. practices those but for sume (3) him; a minimal there is least and fairly self-censorship injury is Plaintiffs’ enforced, will that the rules be probability Act, and re- passage traceable (empha at 1254 they if are violated.” Id. Accordingly, by injunction. dressable omitted) (citations omitted) (footnote sis standing. have Plaintiffs omitted). existence, Notably, “it is the not require standardless imposition, argues The that Plaintiffs State (alter injury.” Id. ments that causes [the] regard inquiry standing lack with original) (quoting Legal CAMP ation provision provision of the because Atlanta, Fund, City Inc. v. Def. Thus, nothing at all. prohibits in fact Cir.2006)). (11th 1257, 1275 F.3d claims, will Plaintiffs’ fear State objectively reason discipline face is not above, discussed For the reasons Ga., Bar able. See Wilson State third have met the first and Plaintiffs Cir.1998) (“A (11th party’s F.3d regard prong, to the second prongs. With may subjective prosecuted fear that she be it unclear whether argue Plaintiffs expressive activity will not engaging for re inquiries record-keeping routine and standing injury to constitute an for be held firearms, part of the garding made as objectively that fear is purposes unless preventative medicine and practice reasonable.”). proposed the State’s Under patients’ particularized circum based on construction, merely the Act recommends stances, qualify as “relevant” to health refrain” from ask physicians “should safety,-and that the law does not define rele ing questions about firearms unless “unnecessarily harassing” or “dis terms vant, hortatory language and that such criminate,” leaving physicians without speech. does not constitute bar guidance pro to what conduct the Act the Executive Di points State out physicians may hibits and when in a letter— may un- rector of the Board stated discipline patients for conduct acknowledge provide 7. We that the harassment 6. We note that the Act does not for partic- provisions of the Act in discrimination only disciplinary penalties, ac criminal but ular, 790.338(5) (6), prohibit § conduct Nevertheless, standing tion the Board. speech. to no Never- that theless, involve little purposes, disciplinary action the threat of self-censorship claim as a Plaintiffs *17 Bar, may be sufficient. See Harrell v. The Fla. challenged provisions of the result of all four 1241, 1248, (11th Cir.2010) 608 F.3d 1260 regulate challenged provisions Act. As all four standing challenge (finding attorney an had speech, arguably involves this is conduct that attorney advertising the state bar’s rules when standing purposes. We need sufficient for not, consequence noncompliance was dis for course, evaluate the merits of these action, disbarment). ciplinary as such standing stage. at the claims
877 (2013) shortly (holding attorneys Board’s after 264 posted to the website and var- labor, rights, legal, the Board does ious human Plaintiffs filed suit—that and media provision organizations as a cannot interpret inquiry “manufacture stand- ing” challenge provision but rather as a recommenda- of the prohibition, For- (contradicting eign Intelligence a letter the Executive Surveillance Act tion of 1978 previously “by choosing mailed to Florida expenditures Director had make based stating the Accord- on physicians opposite). hypothetical plain- future where .harm” contends, ingly, merely speculate government the State there is no credi- tiffs that the communications, regard target threat of enforcement with to will their ble and so inquiry provision. they the costs incurred were product surveillance). generalized their fear of disagree. Laws—such as the We Moreover, we note that the Board has disciplinary for action provide Act—that position not been consistent in its that the generally in should not be ease of violation inquiry provision hortatory, as indicated interpreted hortatory. Compare as Liese by the Executive Director’s letter first Sec’y Affairs, v. Veterans 312 gang stating contrary. The State is also (“In (Fed.Cir.2002) 1368, 1377 F.3d interpretation inconsistent in its any consequences absence of for noncom refrain” in language “should its briefs. plianсe, timing provisions are at [a law’s] instance, For it repeatedly characterizes precatory mandatory.”), best rather than in language provi identical the harassment Kornstein, 531, Kittay v. 230 F.3d with mandatory prohibition sion of the Act as a (2d Cir.2000) (noting n. 3 that attor against unnecessary harassment. State’s ney disciplinary mandatory rules “are 1, 6, 18, 27, 8, Br. at n. It also mini they character” because “state the inquiry provision describes itself as mum level of conduct below which no law ... “proscribing] inquiries,” id. at yer being subject can fall without to disci conduct,” “prohibiting] id. at 39. Wil Cf. omitted)), (quotation action” plinary marks son, (holding at 1428-29 F.3d Born, Inc., and Edwards 792 F.2d attorneys standing disbarred lacked (3d Cir.1986) (noting attorney 391-92 challenge State Bar rules that limit the disciplinary mandatory” rules “are be ways attorneys rep which disbarred can attorneys discipline cause are to the public resent themselves or have them). Thus, violating despite for contact with clients where “the State Bar position Board’s as the Executive —insofar repeatedly consistently taken ha[d] represent Director’s letters it—that position [challenged thé rules] inquiry provision constitutes a recommen application types no of scenar ha[d] mandate, dation rather than a the fact attorneys posed”). ios the have disbarred provides disciplinary that the Act for ac that, against controlling tion Plaintiffs case of a violation Neither is it as the contends, provides Supreme evidence that Plaintiffs’ fear that State the Florida they may discipline objectively face rea term interpreted Court “should” standing purposes. Notably, hortatory reviewing Florida’s sonable Code generalized disciplin this is not a fear of Judicial Conduct. See In re Code Judi (Fla. action, Conduct, ary specific apprehen but rather a cial 643 So.2d 1994). specific group physicians— interpretation sion is irrelevant to Such — legis targets. determining whose conduct the Act But what effect the Florida cf. Amnesty give language in the Clapper v. Int'l lature intended to USA -, Thus, 185 L.Ed.2d Act. Plaintiffs’ fear that *18 discrimination, and harass- inquiry provision ing, inquiry, discipline under
face impermissi- provisions ment objectively reasonable.8 is Act10— bly upon rights trench their under the that Plain argues also State view, Act First Amendment. In their standing regard to the rec tiffs lack with is a content-based restriction of the Act because it ord-keeping provision such, and as is to—and fails—strict entry of firearm infor only proscribes the scrutiny. Plaintiffs also assert that to medical care mation that is not relevant is, overbroad; they Act is that claim that injury safety, and Plaintiffs claim no or is regulation even if the Act’s from a wish to record irrelevant arising constitutional a limited number situa- However, claim an information. Plaintiffs tions, proscribes it nonetheless a substan- preventative injury practice to their speech, and must legitimate tial amount of arising being from not free to medicine Second, argue fall. Plaintiffs that the Act every the firearm information of record rights under the Due Process violates their patient as a matter of course. Some— Amendment, in Clause of the Fourteenth majority these records perhaps —of they vague that the Act’s terms are so be irrelevant to the care and will therefore put person ordinary intelligence fail to Thus, patients and others. prohibits. the Act on notice as what argument unavailing: Plaintiffs State’s injury arising, part, claim an from a begin with the latter contention We will desire to record irrelevant information. and then move to the First Amendment Brooks, challenges. Borgner See Accordingly, we find that the District (11th Cir.2002) (“Before F.3d properly Court held that Plaintiffs have un analyzing challenged state [the statute] standing to the Act. also challenge We find [appropriate der the level of First Amend properly that the District held that Court scrutiny], ment we must first determine adjudication.9 ripe Plaintiffs’ claims are statute, whole, whether the taken as a IV. required clear as far as what is and what is prohibited.”). Now for the merits of Plaintiffs’ claims. Plaintiffs’ facial attacks on the arise A. separate provisions
under two
of the Con-
First,
void-for-vague
Under “[t]he
stitution.
contend
(6)
790.338(1),(2), (5),
doctrine[,]
record-keep-
§
...
‘a statute which either
ness
—the
accept
argument
8.We do not
Plaintiffs’
withdraw this recommendation should the in-
construing
inquiry provision’s
given
"should re
quiry
relevant in a
case. Neverthe-
language
hortatory
less,
frain”
as
would render
inquiry
we find that the
clause is not a
meaningless
portion
provision
al
recommendation,
rejection
mere
and our
physicians
lowing
to nevertheless make fire
argument
Plaintiffs'
does not alter the result
inquiries
doing
when
rele
arm
so would be
standing inquiry.
of our
safety.
Corley
vant to care and
See
v. United
States,
appeal
9. The State does not renew on
its
(2009) ("[A]
879
doing
challenged provisions,
of an act
after
requires
forbids or
which we ad
common
vague
[persons]
so
specific
terms
Plaintiffs’
dress
contentions. See
necessarily guess at its
intelligence must
Oklahoma,
601,
Broadrick v.
413 U.S.
617
meaning
application,
and differ as to its
16,
2908, 2919,
n.
93 S.Ct.
what is not
Giac
399, 402-03,
Pennsylvania, 382
cio v.
U.S.
record-keeping provision pro
The
518, 520-21,
resolves the issue. See Johnson Gover
(11th
Fla.,
nor
405 F.3d
Cir.2005) (en banc) (“The
step
first
stat
inquiry provision
phrased
differently, but we think it is sub-
utory interpretation requires
slightly
that courts
context,
record-keeping
requirement simply
stantially similar
means
practical
its
effect.
physician
terms of
that a
should
provision
base his or her
physicians
directs
provision
This
calculation
relevancy
pa-
of a
particular-
tient’s
of firearms on
making
inquiry
a written
or
refrain from
Thus,
concerning
patient.
ized information about the
asking questions
the owner-
by
physician may
a firearm or ammunition
make
ship
inquiries
as to the
family
member
firearms-ownership
status of
or all
patient,
presence
or the
of a firearm a patients,
long
so
as he or she does so with
*21
home or other domicile of the
private
good-faith
the
specif-
belief—based on the
family
pa-
member of the
patient or a
patient’s
ics of the
inquiry
case—that the
provision,
Notwithstanding
tient.
this
a
patient’s
is relevant to the
medical care or
in
[physician]
good
...
faith be-
safety,
safety
If,
or the
of others.
that this information is relevant to
lieves
example,
physician
the
seeks firearm infor-
safety,
care or
patient’s
the
medical
personal agenda
mation to suit a
unrelated
others,
safety
may
make such a
the
safety,
to medical care or
he or she would
inquiry.
or written
verbal
making
“good-faith”
not be
a
inquiry, and
790.338(2).
plainly
§
Fla.
so
Stat.
the
directs him refrain
inquiring.
again,
prohibition
Here
the substantive
qualified by
relevancy requirement,
is
Accordingly, we conclude that
inqui-
effectively providing
physicians
ry provision
sufficiently
clear that a
inquire
good
whenever
faith
believe
person
intelligence
of common
need not
ownership
that firearm
information is rele-
guess
prohibits.
as to what it
safety. Again,
vant to medical care or
provision
high
sets a
bar as to the mental
necessary
trigger
prohibition:
state
Finally,11 the
provi
harassment
any good-faith
lack
physician must
belief
sion also contains the same basic elements
relevancy
as to the
of the information.
provisions,
as the first two
albeit with a
provision
require physicians
The
does not
provi
few modifications. The harassment
knowledge
to have
of relevance before
physicians
sion directs
to “refrain from
only a
speaking,
good-faith
but
as to
belief
unnecessarily harassing a patient about
Although
phrased
relevance.
this is
differ-
ownership during
аn examination.”
ently
record-keeping provision’s
than the
790.338(6).
§
Fla.
Stat.
Like
record-
relevancy requirement, we think the two
keeping
inquiry provisions,
the harass
provisions form two sides of the same coin.
provision
impose
ment
does not
a flat ban
prohibitions apply
physician
when a
issue,
qualifies
on the
but rather
the information to be
knows
irrelevant
here,
necessity require
its
with a
ban—
apply
physician
good-
do not
if the
has a
statute,
ment. Under the terms of the
faith
the information is rele-
belief
physicians
only prohibited from ha
are
vant.
rassing patients
about firearm
And,
record-keeping provi-
as with the
unnecessary.
harassmeht is
when such
sion,
relevancy
key
clause is also
here.
again
way
Plaintiffs
that the term “rele-
One
which the harassment
assert
above,
vague,
provision
previous
vant” is
but as we observed
differs from the
two
result,
cross-appealed
11. Plaintiffs have not
Dis-
ness. As a
we need not address their
.the
holding
argument
trict Court’s
that the discrimination
that what constitutes "discrimina-
790.338(5),
provision,
vague-
provision
§
is not void for
tion”
is unclear.
under
of the medical ex-
however,
regard
purpose
to related to the
is with
provisions,
Second,
relevancy require-
triggers
amination.
standard
the mental-state
record-keeping
present
of ments
both the
Instead
prohibition.
the substantive
inquiry provisions
illuminate the
prohibiting
high
bar before
imposing
necessity requirement
meaning
irre-
of the
knowledge of
speech requiring
—
require-
provision.
the harassment
These
good-faith
levance or the absence
manifestly
particularized
ments
turn on a
pro-
harassment
of relevance —the
belief
formula,
physician
as to the
a rela-
determination
imposing
this
flips
vision
care
relevancy
of the
to the medical
permitting
before
tively high bar
safety
or the
patient,
firearm own- or
speech. Harassment about
explic-
link
necessary.
others. While that
is not made
only permitted when
ership is
inversion,
necessity require-
it in connection with the
by this
are not troubled
We
ment,
however,
implication, given
pat-
we dis-
the clear
although,
because
tern,
necessity
below,
imagine
requirement
scenarios in
is that the
cuss
we can
*22
warranted,
object:
directed to the same
the medical
might
which “harassment”
be
advisable,
safety
patient,
safety
in
ma-
care or
of
or the
we think that
the
the
even
cases,
Imposing
of
it will not be.
of others.
jority
permit-
standard before
rigorous
a more
express
Plaintiffs
concern that the rele
ting record-keeping
inquiry might
or
solely
a
vancy
hinge
determination will
on
question,
a
.but we
present more difficult
particular patient’s subjective understand
inappropriate
pre-
think it
as a
do not
“unnecessary
of what constitutes
requisite
permitting “harassing.”
to
harassment,”
result,
and that as a
necessity
may
subjected
liability
discipline
re
be
to
or
Finally, we think that the
arbitrary
in
an
record-keeping
like the
and
basis. Were this indeed
quirement,
ease,
provision
likely
in the context
the
the
would
be
quiry provisions, when read
whole,
Walters,
provision and the Act as a
invalid. See Conant v.
309 F.3d
of the
(9th Cir.2002)
629,
requiring
particu
(holding
also has the effect of
a
a statute
physician
providing
against
larized determination
the
for administrative action
in
Young
Progressive
physicians
engage
to relevance. See
v.
who
that “the
(Fla.2000)
Co.,
to
patient
Se. Ins.
753 So.2d
believes
be
recommendation
(“[A]ll
marijuana”
read
narrow
parts
requisite
of a statute must be
lacks the
Amendment);
specificity
together in order to achieve
consistent
under the First
“
Collins,
whole,”
courts
possible,
see also Thomas
‘[w]here
(1945)
statutory provisions
communicates that should not disparage firearm-owning patients, and summarize, To we read the Act persist speak attempting should prohibit record-keeping about firearm about firearm ownership only when physician knows is not relevant to when medical such information to be irrelevant to the safety. Like provisions care or the other of patient’s safety, medical care or' or the Act, provision targets the harassment safety others; inquiry about firearm physicians pursue agenda who wish to an ownership only when physician lacks a safety. unrelated to medical care or good-faith belief that the information is relevant patient’s to the medical care or Although the District Court found the safety, safety others; or the and harass “unnecessarily” modifier problematic, ment about ownership only when disagree. we The modifier in fact allows physician does not it necessary believe physicians the freedom to challenge -i.e.,— patient’s medical safety, care or patients regarding firearms “harass” — of others. when, particularized under circum- case, of the patient’s doing stances so is Having determined that the record- *23 reasons, necessary for health safety or keeping, inquiry, and provi- harassment patient if the might physi- even find the clarity sions are of sufficient to conform to example, cian’s advice unwelcome. For if the requirements process, of due we hold suicidal, a patient physician may is wish that the District Court erred in finding attempt persuadé to patient the to re- vagueness. them void for home, patient’s move firearms from the B. patient initially objects.
even if the So if physi- even the considers the turn now to the first of We Plaintiffs’ cian’s health and advice related to challenges. First Amendment We need harassing, firearms to be the inclusion only proceed apply First Amendment “unnecessarily” the modifier leaves room scrutiny regulates activity to the Act if it physicians deliver such advice when the falls within ambit of the First necessary safety, to medical care or consis- Therefore, protections. Amendment’s we with the provisions. tent Act’s other analysis by begin resolving our a neces- provision sufficiently harassment is clear sary preliminary any issue: whether of the person intelligence that a of common need challenged' provisions implicate signifi- guess prohibits. as to what it “speech” cant as that term amount is in the context of understood First Amend- point, patients by As a final we note that ment law. subject physicians themselves cannot
discipline. complaint Patients file a triggers investigation by
which an the Board, they may bring malpractice or the and Four Under First action, Amendments, long physician operat- prohibited but so as a is teenth States are good “mak[ing] [any] abridging faith within the law ... boundaries speech.” good practice, providing medical and is the freedom of U.S. Const. GOGO support for this The State finds Amendment literal I.12“The First
amend.
Shore,
in Locke v.
634 F.3d
proposition
abridgment only
‘speech,’
ly
the
forbids
(11th Cir.2011).
case,
In that
we said
1185
recognized
pro
that its
long
have
but we
practice
governs
statute
spoken
“[a]
not end at
tection does
Johnson,
is not unconstitutional as
occupation
491 of an
Texas v.
written word.”
2533, 2539,
right
speech,
of the
to free
abridgement
105 an
109 S.Ct.
U.S.
(1989).
any
right
of that
long
so
as
inhibition
may also be
342
Conduct
L.Ed.2d
observing
incidental effect of
merely
com
with elements of
“sufficiently imbued
regulation.” Id. at
legitimate
an otherwise
scope
munication to fall within
v.
(quoting Accountant’s Soc. Va.
Amendments.”
1191
Fourteenth
First
(4th Cir.1988)).
602,
409, Bowman,
405,
F.2d
604
Washington,
v.
418 U.S.
Spence
2730,
goes,
so far as it
but
842 That
is true
L.Ed.2d
94 S.Ct.
begs the
(1974).
interpretation
particular
proffered
State’s
To determine whether
An inhibi
we must answer here.
protections
question
conduct implicates
freedom of
Amendment,
professionals’
it
tion of
we look to whether
First
the First Amendment “so
does not violate
convey
particularized
“inten[ded]
”
whether,
“merely the incidental effect
long
the circum
it is
message,” and
under
regulation.”
stances,
legitimate
... an otherwise
likely “that the mes
highly
it is
added).
analysis
The State’s
(emphasis
Id.
sage
understood
[observers].”
would be
Johnson,
high
generality
at
at such a
level of
proceeds
109 S.Ct.
491 U.S.
410-11,
of a
regulating
practice
that all laws
418 U.S. at
(quoting Spence,
2730).
necessarily impose only
profession would
94 S.Ct.
speech,
and so would
incidental burdens
under this definition—
It would seem
always pass muster under
the First
indeed,
almost
measure —that
under
the case.
Amendment. This cannot be
an-
asking questions
writing
down
con
The State also cites Justice White’s
protected expression
constitute
un-.
swers
SEC,
However,
curring opinion
Lowe
der the First Amendment.
211-36,
2557, 2573-86,
escapes
First
argues that
State
*24
(1985),
do not find
scrutiny
it is directed L.Ed.2d 130
but we
Amendment
because
anything
opinion
in that
that would counte
practice of medicine.
toward conduct—the
(as must)
category
that
of
conceding
it
nance the idea
the entire
seemingly
While
only
professional regulation touches
on
asking questions
writing
that
down
conduct,
beyond the
of
Amendment
and thus lies
reach
answers would receive First
Indeed,
strangers
if
the First Amendment.
Justice
protection
it occurred between
a
corner,
recognized
point,
some
“[a]t
on a street
the State asserts
White
a
activity
by phy-
longer
regulation
conducted
a
measure is no
a
because the
a
or of
practice
profession
regulation
speech
of the medical
but
part
sician as
beyond that
the statute
pro-
press;
point,
the medical
profession, and because
scrutiny
demand
regu-
to close
must survive the level
long
fession has
been
230,
State,
Id. at
by
by
the fact that the law ed
the First Amendment.”
lation
2583;
Holder v. Hu
communication is 105 S.Ct. at
see also
restricts oral and written
1, 28,
Project, 561 U.S.
consequence
of no
whatever.
manitarian Law
150,
146,
(1939);
ap
see also
prohibition is
S.Ct.
885
2705, 2724,
such,
its pri that it sion would seem to indicate is provision against individuals harassment, with verbal marily concerned proscribed on the treatment] [medical un since it defines a about which Hurley Gay, v. Irish-Am. ground[ See ].” It is necessary prohibited. harassment Bos., Grp. 515 U.S. Lesbian & Bisexual physi imagine how one would difficult 2338, 2347, 557, 572, 132 L.Ed.2d 115 S.Ct. cally patient a about firearm ] (1995). facial “harass! light of the Especially 487 790.338(6) § ownership.” See Fla. Stat. challenge hold nature of Plaintiffs’ —we added). However, even assum (emphasis regu- a provision is that the discrimination ing that there are some situations which only with an incidental lation of conduct provision applied could be without in such, it does not speech. effect on As balance, that on volving speech, we think offend, alone the First implicate, let provision substantially regulates Amendment. must survive some level of speech and so scrutiny.13 First Amendment provision of The harassment Act, 790.338(6), § requires physicians sum, In that while the dis- we conclude unnecessarily harassing a to “refrain provision regulation crimination ” ownership.... merely about an inci- professional conduct with point us to Saxe v. State Coll. thus does not speech, Plaintiffs dental effect on Dist., Amendment, prop which stands for the First the rec- implicate Area Sch. categorical ord-keeping, inquiry, pro- is no and harassment “[t]here osition that exception’ regulate significant to the First visions do amount of ‘harassment protected speech. Accordingly, we must speech free clause.” 240 Amendment’s (3d Cir.2001) J.) (Alito, 200, proceed to determine what level of scruti- F.3d 204 Of ny of these the First Amendment demands course, “non-expressive, physically harass Lowe, 230, provisions. See 472 U.S. 105 entirely ing conduct is outside the ambit of (White, J., concurring). S.Ct. at 2583 clause,” but the First the free “protects variety Amendment also wide may deep that listeners consider see, 206;
ly
e.g., Sny
question,
offensive....” Id. at
Before we answer that
howev-
443,
1207, er,
helpful
survey
think it
Phelps,
der v.
562 U.S.
131 S.Ct.
we
(2011); Brandenburg
landscape
professional speech.
179
v.
Two
L.Ed.2d 172
Ohio,
444,
1827,
concepts
profession
23
orient our discussion:
89 S.Ct.
(1969).
only
relationship.
physician
L.Ed.2d
A
is not
430
bring
types
judged
plainly legit-
13. We note that Plaintiffs
two
in relation to the statute’s
Stevens,
sweep.”
challenges
imate
United
pro
States
facial First Amendment
473,
U.S.
challenge,
vision: a traditional facial
which
(2010) (quotation
L.Ed.2d 435
marks omit-
only
can succeed
if "no set of circumstances
ted).
valid,”
exists under which the
would be
State, Cty.
Emps.
& Mun.
Am. Fed'n
Coun
plainly legitimate applica-
there are some
If
Cir.2013)
Scott,
(11th
cil 79 v.
717 F.3d
provision,
tions of the harassment
such as to
-
denied,
-,
U.S.
rt.
harassment,
physical
that would seem to
ce
(2014) (quoting
887
profession;
any
the medical
he or
reasonable definition
professional
member of
of
(defin-
fiduciary
speech.
King,
also a
member of various
See
she is
lowing First Amendment on against conversely, claim misrepresentation strongest speaks is when he negligent suggesting that mer- publicly profession a for matters unrelated to his dentist fillings are harmful and in cury amalgam speaks weakest when he furtherance of removed). profession. should be his by a Conversely, physician conversation regulations speech by When of uttered a their mutual love of patient with a about professional analyzed are in terms of the category: fall in the third golf would speech audience —whether the occurs with- of medi speech practice unrelated to the in relationship the confines of a of trust physician- the confines of a cine but within and confidence or'not —the relevant inter- A patient relationship. more sinister ex slightly ests are different. a fidu- Within category within this is ample speech of ciary quasi-fiduciary relationship, or the by a harassing intimidating speech phy government has a in strong polic- interest See, patient. e.g., Suspen sician to a In re ing the relationship boundaries of the Singh, sion or Revocation License protect party exploita- of of the weaker from A-2181-06T2, at *1 No. WL solely tion. This interest does not derive 2007) (af (N.J.Super.Ct.App.Div. June general from some principle gov- that the physician’s of a license firming revocation ernment obligated protect the weak repeatedly pressuring elderly in for part rather, predation by strong; the the patient physician’s attempt to conceal the government’s ensuring interest is in her). to solicit a loan from societally the beneficial function of these attorney- relationships agent-principal, utility The of this two-dimensional model — client, physician-patient, not nulli- etc.—is professional speech of comes to the fore exploitation by fiduciary. fied due to identify attempt when we the various relationships, Outside the confines of such societal, governmental, and individual in- government’s protecting interest shape regulations speech by terests that of wanes, listener and instead the interest of professionals. The combination Of salient physician’s obtaining audience infor- present physician speaks interests when a mation reaches its zenith. profession of his furtherance is related to, from, play but distinct the interests at interplay Once two-dimensional physician speaks fiduciary. when a as a forth, interests is set our intuitive conclu- government regulation speech sions about whether certain kinds of
When
professional
analyzed speech by
profession-
uttered
constitute
physicians
latitude
through
professional
speech,
proportionate
the lens of the
effec-
al
and the
such
tivity
regulate
of the
it furthers or with which a state
—whether
physician
practice
profes-
speech,
is unrelated to .the
of a
make sense. When
gov-
speaks
patient
relevant interests are
to a
in furtherance of the
sion—the
medicine,
one,
two
regulating
pro- practice
ernment’s interest
but
sub-
implicated: reg-
protection
public
fession for the
stantial state interests are
protection
professional’s
speaking
profession
interest in
free-
ulation of the
regulation
of the rela-
ly.
vary depending
public,
Both interests
on of
practice
tionship
protection
whether the
effects the
for the
Conversely,
society.
and the
profession.
government’s
The
interest is
benefit
speaks
public
on a
strongest
professional speaks
physician
when a
in when a
of medi-
profession
practice
furtherance of his
and weakest matter irrelative to the
cine,
with
neither state interest adheres
professional speaks
when a
irrelative to his
addressed,
force; instead,
Supreme
the countervail-
Court has also
any special
category
speech by
in in
another
passing,
interest
physician’s
interests —the
*29
regulation compelling phy
in
society’s
professional
interest
freely and
speaking
—a
to the fore.
sicians to discuss certain information with
freely
listening
—come
about the risks of abortion
patients
their
of our two-dimensional
Another benefit
Parenthood
and childbirth. Planned
of
and illumi
aligns
that it
with
framework is
833, 884, 112
Casey,
Pa. v.
505
Se.
U.S.
Supreme
the
guidance
the limited
nates
(1992)
2791, 2824, 120
S.Ct.
L.Ed.2d 674
subject
pro
the
of
provided
has
Court
framework,
(joint opinion). Under our
Take,
example, pro
speech.
fessional
type
regulation
of
falls at the intersec
this
Under
speech by professionals.
motional
governmental
tion of
inter
two substantial
type
of
of
analysis, regulations
our
regulation
profession
ests:
of the
for the
category,
in
where the
speech fall
the first
of
protection
public,
regulation
of the
and
primary
play
two
interests at
are the
fiduciary relationship
protec
the
for the
by
protecting
public
interest in
the
state’s
tion of the
and the benefit of soci
society’s in
regulating
profession,
the
of
ety. When one understands
both
of information. No
terest in the free flow
primary
play
at
in this cate
the
interests
precisely the interests the
tably, these are
gory
government regulation,
cut in favor of
Supreme
has found relevant to ana
Court
Supreme
Court’s succinct conclusion
lyzing regulations
professional
of
advertis
regulation implicated
physi-
that the
“the
Bd.
Pharm. v.
ing. See Va. State
Va.
of
rights”
First Amendment
but sur
eian[s’]
Council, Inc., 425
Citizens Consumer
U.S.
scrutiny
regulation
a
vived
“reasonable”
766-68,
1827,
748, 764,
1817,
96 S.Ct.
1828-
practice
of medicine makes more
(1976)
29,
(characterizing
now address the issue of the appropriate level of First Amendment noted, As the Supreme Court has scrutiny with which to evaluate the Act. yet clarify to precise scrutiny level of with which to government review restric professional tions of speech. bridge To regulations
All speech gap, proceed of are this we must via inference equal eyes not created in the of the First from the known to the unknown. first regulating speech piece Amendment. Laws “re of information we have is the level of judicial scrutiny scrutiny government ceive different levels of due regulations of depending on the type regulation speech by professional of and on a matter irre- justifications purposes underlying and practice profession lative to the of his Camnitz, (in 238, it.” v. 774 244 any particular relationship Stuart F.3d outside (4th above). Cir.2014), denied, U.S. -, cert. category every 576 fourth In almost — - (2015). 2838, instance, 135 S.Ct. L.Ed.2d when a professional speaks context, statutory speech-most professional Some restraints on his status as a speech entirely laws that restrict based on its con incidental to his speech. When true, viewpoint, example-receive government generally may tent or this is scrutiny,” exacting professional speakers differently “most Turner Broad. not treat argument speak patients 17. There can be no that Plaintiffs to their within the examination inquiries view about firearm aas practice room on matters irrelative to the of i.e., preventative matter So, of in further- care — medicine. because we find that the Act practice they ance of the of medicine—or that inquiry permit was tailored so as to about patients— wish to raise these issues with their all in which the firearms in circumstances i.e., fiduciary within the context of a relation- good physician faith that believes such Indeed, ship. See Plaintiffs’ Br. 3-4. health information is relevant to the essentials, stripped theory to its Plaintiffs’ of individual, IV.A.2, supra part we of see appears prohibits the case to be that the Act indeed, need we cannot —address not— speaking patients them from their fur- propriety applying prohibit phy- of the Act to medicine, practice therance of the but that discussing matters irrelative to sicians objective passing the State’s the Act was to patients’ safety. health or Because their prohibit speaking them from a matter irre- regulates Plaintiffs concede that the Act medicine, practice lative to the and that it practice speech uttered in furtherance punish doing will seek to them for so. medicine, proceed analyze we it such. argue We do not understand Plaintiffs to right have a First Amendment 892 traditionally sub “occurs in an area See Pick speakers. nonprofessional
than
(9th
regulation,” and has
1208,
ject
government
Brown,
F.3d
1227-28
up
740
v.
that it
a low
therefore concluded
warrants
Cir.2014) (“[OJutside
re
doctor-patient
the First
protection
under
er level
constitutionally
lationship, doсtors are
456,
Ohralik, 436
Amendment.
U.S.
pam
soapbox
orators
equivalent
the Court
Correspondingly,
at 1918.
S.Ct.
receives robust
and their
phleteers,
to measure
a lower bar
which
has set
Amendment.”);
under the First
protection
regulation
speech—interme
of such
State
Madison,
Sch. Dist.
City
also
Joint
see
diate,
scrutiny.
than strict
Fla.
rather
Comm’n,
Relations
Emp’t
No. 8 Wis.
Bar,
623, 115
at 2375. To
515 U.S. at
S.Ct.
426,
167, 176,
97 S.Ct.
429 U.S.
review, the
this level of
State
survive
(1976) (“[The government]
L.Ed.2d
in sup
interest
“must assert
substantial
speak
... discriminate between
may not
demonstrate
regulation”
of its
port
employ
their
ers on the basis
“directly and material
that the restriction
ment....”);
Ed.
Pickering v. Bd. of
sweep
ly advances” that interest without
County,
Twp. High Sch. Dist.
Will
necessary.
widely
more
than
Id.
1731, 1734,
Ill,
(citing
at 2376
Cent. Hud
*31
(1968) (“[T]eachers may
recognition
Story,
Joseph
Commentaries
b.
see also
§
Jurisprudence
235-36
Equity
scrutiny
Plaintiffs contend
strict
1886) (“In
(13th
... cases
which
[in
ed.
First,
required
they
for several reasons.
fiduciary
between the
there is a
relation
satisfy
argue that the Act must
strict scru
law,
prevent
in order to
undue
parties,]
tiny because it is a content-based restric
confidence,
advantage from the unlimited
physicians
it
speech i.e.,
tion on
restricts
—
affection,
duty
the rela-
or sense of
which
their
speaking
topic:
about a certain
creates,
naturally
requires the utmost
tion
status as firearm owners. See
patients’
faith ...
in all
degree
good
transactions
Paul,
City
R.A.V. v.
St.
If there is
mis-
parties.
between
382, 112 S.Ct.
quintessential professional
with
stitution suffers content-based restrictions
here,
we are concerned
which
State
categories
within certain limited
regulatory leeway
even more
than
has
society
has determined do not merit
regulating promotional speech by
when
full
protection.
First Amendment
See 505
professionals, given
fiduciary
context
*33
382-83,
at
112
at
U.S. 377
S.Ct.
2542-43.
However,
within which the former occurs.
regulations “may
made
[not]
Such
be
conclusively
we
not determine
wheth
need
vehicles for content discrimination unrelat
scrutiny
applies
er
lesser form of
ever
conduct,”
distinctly [regulable]
ed to their
regulations
professional speech,
of
because
383-84,
2543,
112
id. at
S.Ct. at
but intra-
in this case the outcome is the same
category
permis
content discrimination is
a heightened
whether
intermediate scruti
very
when the basis for it is the
ny
judicial
sible
standard or some lesser level of
scrutiny
category
speech
reason the entire
of
at
applied.
Sorrell v. IMS
Cf.
—,
Inc.,
U.S. -, -,
protection
issue receives
un
Health
131
less-than-full
S.Ct.
(2011)
2653, 2667,
Amendment,
388,
der the
id. at
(finding
895
tion,
only
obscenity
prohibit
speaker-based
presumptively
choose to
un
—is
Supreme
constitutional. The
patently
is the most
offensive in its
Court has
which
never
analysis
way
framed its
in this
prohibit
...
it
...
when
prurience
[b]ut
scrutinizing regulations
speech by
pro
only
obscenity
which includes offen-
See, e.g.,
fessionals.
Thompson v. W.
388,
messages.” Id. at
112
political
sive
Ctr.,
357, 366-68,
States Med.
535 U.S.
122
at
S.Ct.
1497, 1503-04,
S.Ct.
speech gets diminished
effectively
appropriate
cannot
when
diate level of review was
protection. The State
regulating profes-
оf
pursue
assessing
regulations
professional
its interest
(4th
by
Stuart,
laws
reference
may
if
not draw
sions
it
other
4.
conducting an interme
When
c.
scrutiny analysis,
diate
we.look first to the
Accordingly,
proceed
we will
un
substantiality of the State’s interest. See
scrutiny.
of intermediate
der the rubric
Bar,
at
at
Fla.
S.Ct.
standard,
uphold
we must
Under this
propose
hypothetical
2376. We
if
“directly
it
advances”
“substantial”
interests, as in a rational
governmental
interest,
not more extensive
State
and “is
analysis; rather we must look to “the
basis
necessary
than is
to serve that interest.”
put,
forward
precise interests
Hudson,
Cent
447 U.S. at
See
omitted).
(quotation marks
State....”
Id.
Here,
so,
the State asserts
good
In
doing
we find ourselves
interests,
Act serves several substantial
company. Three of our sister circuits
scrutiny
including safeguarding
privacy
pa-
applied
have either
intermediate
R.A.V.,
Supreme
vided its rationale was consistent with “the
21. As the
Court noted in
however,
give
very
category
this does not
the State free rein
reason
entire
protection
regulations
professional speech
less than full
under
to turn
into
issue” receives
Amendment,
not,
it
"vehicles for content discrimination unrelated
the First
could
consistent
Amendment, impose
distinctly [regulable]
with the First
a restric-
to their
content.” 505
383-84,
physicians
U.S. at
897
families, facilitating
practice
professions
protec
their
access
the
for the
tients and
care,
preventing
substantial,
discrimina
public
merely
to medical
tion of the
not
and harassment.22 These interests
tion
“compelling.” Goldfarb,
but
421
at
U.S.
“obviously
“para
into” the State’s
factor[ ]
792,
Furthermore,
95
at 2016.
S.Ct.
the
Bar,
objective,”
515
at
mount ...
Fla.
U.S.
Supreme
has also
Court
held that “the
2376,
624,
115
the area of
protection
potential
privacy
clients’
is a
regulation preserving its cit
professional
Bar,
substantial state interest.” Fla.
515
—
profes
harmful
ineffective
izens from
or
625,
(quoting
U.S. at
As noted the intermediate wheth Court has directly deemed er regulating State’s interest advances State’s ultimately speculate We need to the reasons Because we conclude that the proffered patient privacy State’s interest in patients might disclosing be uncomfortable substantial, we find further discussion of firearm-ownership physi- to their their status unnecessary. State's alternative interests See cians, patient might but we note that wish It, Inc., Fla. Bar Went For keep any subjects private number of when 624 n. 132 L.Ed.2d subjects discussion of those is not relevant to (1995) (noting that the State need not example, care. For his or her medical "point support to more than one interest in patient may not wish to disclose his or her restriction; single ... its substantial interest affiliations, religious political pref- sexual satisfy is sufficient to Central Hudson's first erences, physi- to a or bank account balance prong”). merely the un- cian. The Act circumscribes patient necessary information on collection of complaints 23. Some of received many subjects. one of sensitive It does so as legislature prior passage Florida protecting patient's ability a means of Act reflect constituents’ concerns that their status, receive effective medical treatment without firearm-ownership once entered into record, privacy compromising patient's with re- their medical be disclosed to parties. gard third Plaintiffs contend that this is medical to matters unrelated to their fear, existing pro- an irrational law safety, of others. care or or the privacy. safeguards vides sufficient IV.A.4, part See infra at 72. *36 898 State); carry presented by Falanga, To its burden the 150
substantial interest.
here,
must establish that
the
(noting
State
F.3d at 1340
anecdotal evidence of
prevent
that
Act
to
“are
harms
seeks
public).
complaints
real,
merely conjectural,
not
and
however,
importantly,
given
More
what
regulation will in fact alleviate these harms
actually
prohibits
record-keeping
—
material,
Turner,
way.”
in a
and
direct
only
about firearm
when the
664,114
at 2470 (plurality
512 U.S. at
S.Ct.
physician knows such information to be
opinion).
may
rely
the State
not
on
While
irrelevant,
IV.A.1,
supra part
inquiry
see
conjecture,”
speculation
“mere
or
Eden-
ownership only
about firearm
when the
770,
1800,
field,
at
113
at
it
507 U.S.
S.Ct.
physician
good-faith
lacks a
belief that the
required
present ‘empirical
is not
“to
data
relevant,
supra part
information is
see
IV.
accompanied by
...
a surfeit of back
A.2, and harassment about firearm owner-
”
ground
justify
information’
its restric
ship only
physician
when the
does
Falanga,
(quoting
tion.
buyers to
range
personal
submit wide
of
highly disparate
Given the
power bal-
undergo
information and
a background
ance of the physician-patient relationship,26
check), patients
qualms
should have no
we find it to be clear that extracting pri-
revealing
about
their status as firearm
vate
patient,
information from a
knowing
physicians,
owners to
and thus the Act
such information to be irrelevant
patient privacy.
does not further
Again,
provision
care,
of medical
is a real harm.
argument
we find
inapposite.
to be
circumstances,
In these
it is a matter of
may possess
The fact that the State
infor-
common sense that restricting unnecessary
mation about resident firearm owners is
inquiry eliciting such
utterly
directly
immaterial to
information
physi-
whether or not
advances the
cians
State’s substantial
should have access to such informa-
interest .in
Moreover,
regulating
tion.25
again,
profession
here
medical
to pre-
Plaintiffs
working
mistake the actual
vent harmful
the Act. The
or ineffective medical care
Act,
purpose
it,
of the
as we read
is not to
safeguard patient privacy.
and
Amendment,
25. Unlike in the
legitimizes
Fourth
there is
interaction that
in itself
"third-party exposure” exception
no
physician expressions.
mitigates
pro-
somehow
the State’s interest in
dominance, patients
In the face of this
sus-
tecting
privacy
of its citizens.
Smith v.
pend
phy-
Cf.
their critical faculties and defer to
735, 743-44,
Maryland, 442 U.S.
opinions.
disempowered
sicians'
Patients’
2577, (1979) (explain-
row
we address the second
fit that is not
interest —‘a
challenges:
to the asserted
Amendment
of Plaintiffs’ First
reasonable;
that
necessarily
but
if
perfect,
A
is
overbreadth.
statute
“overbroad
necessarily
single best
not
represents
applications
number of its
are
substantial
scope
pro
is in
unconstitutional,
whose
but one
disposition
judged
relation to
”
served.’ Greater
the interest
portion
legitimate sweep.”
to
plainly
statute’s
Unit
Ass’n, Inc. v. United
Stevens,
460, 473,
Broad.
New Orleans
130
v.
559 U.S.
ed States
1923,
173, 188,
(2010)
States,
119 S.Ct.
1577, 1587,
435
176 L.Ed.2d
(1999)
1932,
(quoting
omitted).
Bd.
against them allegedly fell
the course of treatment
I.
good
outside the bounds of
medical care.
By rejecting
challenge
Plaintiffs’ facial
organizations,
Numerous medical
includ-
Act,
simply refusing
provide
we are
ing the American Medical Association
a declaration that such a
Plaintiffs with
(AMA), view firearm related deaths and
defense will be successful.
injuries as a
public
problem
serious
health
particularly pernicious
with
chil-
effects on
Second, our decision should not be
dren. These organizations believe that
*39
-pronouncement
read as
the Act’s
public
problem
this
health
can be alleviat-
“wisdom, need,
propriety.”
[or]
Griswold
by providing people, particularly
ed
chil-
Connecticut,
parents,
dren and their
with information
(1965).
1678, 1680,
V. Consistent with their beliefs about how Accordingly, we REVERSE the District public problem, best to address this health grant summary judgment Cоurt’s doctors, including number Florida Plaintiffs, in- favor and VACATE the plaintiffs, followed the AMA’s advice. junction against enforcement of the Act. They routinely spoke patients with about SO ORDERED. firearms, asking if patients firearms were present specifically in the home in order to WILSON, Judge, dissenting: Circuit follow-up safety tailor information. There Majority original many genuinely has vacated its is no doubt that doctors that, opinion replaced it with one un- help believe that these conversations can subjects original opinion, protect patients public. like the Florida’s their and the In- (Act) deed, Privacy Firearm Owners’ some doctors believed these conver- scrutiny. important they First Amendment this is sations to so were While be encouraging development, Majority an willing patients to lose the business of who engage. believes the Act survives intermediate refused to Moyer, Ap- community 1. See Christine S. "Public related Health medical to reduce firearm proach: Physicians Aim to Prevent Gun Vio- injuries by using preventive care methods that lence,” News, Sept. American Medical public have been used to other health address http://www.amednews.com. available at accidents, problems such as motor vehicle published by American Medical News is smoking, spread of diseases. Moyer’s AMA. article describes efforts in the materially those inter- by patients directly or advance complaints response In and coun- questioning who found doctors’ ests. of firearms seling on Further, must be those interests offensive, overly political, irritating, rights convey weighed against doctors’ Simply put, the passed-the Act. Florida safety message their chosen about firearm prevents doctors gag
Act is a order addressing chosen role in play and to their in a asking question the first from even they public to be a health crisis. what view pro- firearms. The Act conversation about disagreement If the medical there is doctors from significantly chills hibits view that community plaintiffs’ with the providing their views and infor- expressing with information about providing patients topic about one and one patients mation to health, it good public firearm only, topic firearms. certainly presented in the record agree with Regardless of whether we Indeed, and com- before us.2 the record message conveyed by pa- doctors to inexorably to the conclu- mon sense lead firearms, perfectly I think it is tients about that children will suffer fewer sion Amend- that doctors have a First clear injuries par- related if their —and message. This right convey ment safety. more about firearm ents—-know *40 infringes upon right, that significantly Act they But will know less. As a result of now subject, very it at the and is therefore Act, many no that doc- the there is doubt least, Subject scrutiny. intermediate to to curtail, if significantly tors in Florida will scrutiny, pass the Act cannot this level cease, altogether pa- discussions with constitutional muster. safety. firearms and firearm tients about in protect- asserted interests The State’s Thus, not advance while the Act does owners, including rights of firearm the interests, the Act does the State’s asserted rights their to be free privacy rights, their significantly ability speak limit doctors’ to discrimination, and from harassment and they in patients ways to their believe care, ability to access medical are their The protect public will the and save lives. Act incredibly important. Were the neces- actually the Act poor fit between what rights, I believe the sary protect those purportedly it does and the interests might scrutiny survive an intermediate in purpose serves belies Florida’s true challenge. But the State has offered no passing silencing this Act: doctors’ disfa- rights are evidence to show that those This, message safety. vored about firearm .threat, in the under nor is there evidence suggesting that the Act will either the State cannot do. record through safety counseling meeting August [preventive care 2. At its annual (ABA) medicine, adopted vitally American Bar Association Res- pillar a and is of modern olution pa- important and welfare of to the health opposing] governmental poli- legal actions and ethical and re- tients. It is also the rights physicians cies that limit the and sponsibility physicians. Failure to fulfill providers inquire other health care objec- these duties results in a breach they guns patients possess whether their patients.... tive standard of care owed to they and how are secured in the home or to are another known Firearms in home dangers patients their about the counsel may to dis- risk factor that doctors choose guns practices in the home and safe parents patients cuss with their dangers. avoid those young patients. above, Citing policy quoted the ABA the AMA specifically recognized that properly Legislature pass court invalidated Among The district Act. content-, things, Legislature other speaker-, Act as a and view- heard that: given a woman practi- days restriction that “chills was to find a point-based physician new way impairs tioners’ a after she refused to an- questions ulti- swer about provision of medical care and firearms in her home; a mately patient.” Wollschlaeger physi- harm the was asked a Farmer, home; cian F.Supp.2d to remove firearms from his (S.D.Fla.2012). facility Majority separated The reverses and a mother from her interrogating the Act survives children while holds them about intermediate firearms; scrutiny physician under First Amendment. Su- refused to care for nine-year-old boy preme prece- Court Eleventh Circuit because he wanted dent, however, home; to know supports the conclusion about firearms falsely that the Act cannot survive intermediate citizens were told that Medicaid scrutiny. required them to disclose their firearm pay they and would not if
II. answer; refused to a doctor refused to examine a child when the mother re- provisions The Act contains four issue questions; fused to answer firearms (1) appeal. keeping The “record a facility billed for services not delivered cannot provision” states doctors rec- family after a ques- refused to answer ord firearm-related information in medical tions their about firearms. files that “know” not to be “relevant.” experiences Leg- These show that the (2) 790.338(1), § “inquiry Fla. Stat. islature’s action in passing the Act over- provision” states that doctors “shall re- whelmingly was based on real concerns patient’s right spect privacy and protecting privacy about constituent asking patients should refrain” from about *41 preventing discrimination and harass- ownership, firearm unless the doctor be- during ment doctor’s visits. good in faith that the lieves information is medically relevant. Fla. Stat. A legislator’s experience Florida own (3) 790.338(2), § pro- The “discrimination similar: a answering pediatri- was “After practitioners “may vision” states that question gun ownership, cian’s about against patients discriminate” on the basis pediatrician legislator] asked that re- [the ownership. firearm Fla. Stat. gun move the from his home. To the (4) 790.338(5), § Finally, the “harassment legislator, the doctor’s conduct constituted provision” practitioners states that “shall political ‘a ... attack on the constitutional ” respect patient’s legal right to own or right to own a ... firearm.’ A National possess firearm and should refrain from representative Rifle Association also com- unnecessarily harassing” patients about plained questioning patients about ownership. firearm Fla. Stat. gun ownership satisfy political agen- “to 790.338(6). § stop.” da needs to State asserts examples these are of what the Act was passed response in This was to con- designed stop. complaints stituent about the manner and discussing extent to which doctors were attempts appeal on Tellingly, the State ownership patients. Specifi- firearm with though it scope to narrow the of the Act— cally, explains: as the State event, In inconsistently. does so
[Ajctual experienced by Supreme explained discrimination has that a law Court gun directly restricting in rendered uncon- owners Florida motivated tries, chapter, its Florida the American “the inevitable effect on stitutional based Academy Family Physicians, its Florida its face ... [or its] on [the] statute College Physi- American chapter, Health Sorrell IMS purposes.” stated — cians, U.S. -, chapter and its Florida all recom- Inc., (internal (2011) providing counseling guidance and quotation mend L.Ed.2d 544 omitted). Therefore, variety injury-prevention topics assessing on a marks Act, safety. Doctors thus including we cannot firearm constitutionality of asking insist that fire- inevitably quite legitimately silence that this Act will ignore questions as a matter of topic of firearms all but arm-related on the doctors recording the information Doctors risk course and the rarest of circumstances. they good patients’ if to medical files is for their licenses are found losing their Act, safety. public’s cannot safe health and for the so have violated only the State will advance ly assume that legisla- As the incidents discussed reading suggests of the Act it the narrow however, history suggest, the Act was tive here. apparently designed prohibit doctors brief, routinely firearm own- revealing portion asking of its about In a only ership prescreening, that the “Act informational proscribes State asserts rightly suspect, despite inquiries doctor-patient Appellees within the relation- forms. present firearms assurance to the con- ship recordkeeping about State’s con- trary, relevant to medical аnd that the standard of relevance that is not higher the Act is than the point, templated concerns.”3 At this difficulties arise Appellees Appellees’ Consequently, and -the State have dif- own standard. because Many purposes assessing the Act’s consti- ferent definitions “relevant.” doctors, organizations tutionality, many medical assert I assume that doctors always particularized fact or circum- that it is relevant to ask about— absent some thus, in- firearm-ownership indicating stance is record— discussed, AMA, relevant,4 particularly stop asking formation. As as will recording Academy well as the American of Pedia- about and this information.5 may only part 3.Here one of the State’s contradictions. that it have been of the State’s litigation strategy. briefing, in its There are no assurances Elsewhere the State asserts not, that, ends, inquiry provision it.just litigation that the once this the Board will stated, proscription merely interpretation. but is instead not revert back to its broader *42 Further, perspective, interprets advisory. From a doctor’s how- the State the same word ever, ("should”) mandatory mandatory. in the the Act must be treated as to be context of Indeed, body provision— interpreting Executive Director of the the harassment the Act, interpreta- responsible enforcing though the the State vacillates on this for Board tion, Department of Medicine of the Florida as well. (Board), physicians Health mailed a letter to inquiry provision physicians stating that the was manda- 4. And how will be able to make the course, tory. change inquiring? I But in a the Board relevance determination without coming posted shortly Appellees website after will return to this issue in the discus- to its that, fact, provision only filed suit was sion. argument pro- advisory.' The State's that the one, only advisory appears vision is is not a bad be- It that the Act determines as a ownership provisions other which matter State law that firearm cause unlike use "shall,” clearly mandatory inquiiy medically preven- relevant in word all cases provision ambiguous purposes. uses the word “should.” tive medicine Elsewhere in its however, briefing, emphasized extremely risky But it be the State would for doctors to rely specifically interpretation, given that the tim- the Act allows doctors to ask change suggests they "in of the Board’s in course about firearms whenever believe prohibits The Act also “discrimination” conversations about fire- uncomfortable gun ownership. might arms, on the basis of One while others are not. Because the reasonably based on expect, the incidents explicitly State acknowledges that the leg- Act, prompted passage that this history provides islative examples of what provision declining bars doctors from to discrimination, constitutes doctors reason- treat a who refuses to answer ably punishment fear for discrimination questions regarding ownership. under the Act for speaking as the doctors explicitly The Act affords doctors the con- did in the above-cited incidents. Accord- right pa- tinued to refuse to treat such ingly, provision, the discrimination like the tients, however, 790.338(4), § see Fla. Stat. keeping record and inquiry provisions, will Legislature apparently so the intended to cause doctors not to ask about or make prevent other forms of discrimination regarding recommendations firearm own- passed when it the Act. The State asserts ership, particularly if patients initially are that “actual discrimination experienced resistant to information topic.6 on this by gun directly owners in Florida motivat- provision harassment chills doctors’ Legislature pass ed the the Act.” This speech even further. The explains State statement is followed the list of inci- Legislature “the physicians enabled legislative history. dents contained make ownership] inquiries any [firearm above, As noted explained the State also or patients, provided all they do so with passed the Act was in response to inquiry the belief that the is relevant to questioning gun ownership about fol- patient’s Logically then, care. if a low-up recommendations to make such physician seeks firearms information safer, including recommenda- only suit a political agenda unrelated to guns tions to remove from the home en- patient’s discussions, well-being, ... tirely. he These which some con- unnecessarily harassing patient....” stituents and his legislators perceive to be a attack, political Appellees’ could As brief explains, be viewed as discrim- consistent inatory. policy, Based on their with AMA gun many status as doctors believe owners, patients subjected some are to that asking about firearm ownership is good faith” tory that the information is relevant is illustrative of what constitutes "dis- and tо record such information unless crimination” —we must view the harassment this, "know” it to be irrelevant. From provisions designed and discrimination Legislature State concludes that "the enabled inquiry keeping pro- reinforce and record physicians inquiries to make these Moreover, visions. the fact that the Act ex- " patients all if the doctor holds a different plicitly primary allows the form of discrimi- view of medical relevance than the State. is, actually nation that occurred—that doctors course, interpretation, This would allow turning away patients who refused to answer inquiries legislative history; detailed in the questions about firearms —belies the notion precisely inquiries previ- the same the State provision that the discrimination is meant to ously designed stated that the Act was experienced by address actual discrimination prevent. uncertainty, Given this doctors who *43 may prohibit firearm owners. It indeed some ownership wish to ask about firearm in all discriminatory of the conduct that the State' taking significant they cases would be risk if occur, speculates might and it would not cre- continued to do so. problem ate a constitutional if that is all it IV, point A bit more is said on this in Part context, however, did. In this it is difficult to infra, my in relation to brief discussion on provision anything see the discrimination as vagueness. provi- other than reinforcement of the other purpose 6. Given the overall the of Act and the prohibiting saying sions doctors from legislative history light Act's in —considered writing things. certain legislative the State’s that assertions that his- pro- information and medical well-being preventive in all patient’s to the
related agenda.7 political anti-firearm moting an fire- why questions about cases, which many doc- ownership were asked arm Act, then, one group Under this the Act. As passage the this tors before prohib- professionals, speakers, medical clear, however, history makes legislative in a engaging from or at least chilled ited follow-up the inquiries and routine these fire- topic, about one great deal they were deemed prompted conversations ask routine ques- Doctors cannot' arms. part to be legislators by constituents ownership of all incom- firearm tions about which agenda political anti-firearm of an before, despite the they did ing patients briefing in as unneces- its State defines the associations host of medical fact that a sary harassment. Doctors cannot they should. suggest that patients’ their record about information in the the incidents discussed Most of highly-confidential in firearm to involve noth- history appear legislative files, though the information even medical the disagreement between more than a ing to the doctor in a prove later essential in- doctor, gun-related perceived the who the malpractice suit or to medical patient’s to be relevant formation also Doctors emergency in an situation. perceived well-being, patient, and the who information provide cannot unwelcome part to be of an information the running the risk of without and advice provision The harassment attack. political if their medical are facing discipline efforts that State has suggests Act the of the political agenda. part construed to disagree- in side patients’ the taken offers reasons to believe Though State suggest that nothing There is to ment. to might interpreted not be that the Act messages regard- inquiries or doctors’ things, of these at various prohibit all believed genuinely were not firearms ing accepts briefing, the State points its interest patients’ in the best medical to be are the intend- that these forms evidence given. But there is when of this Act. Under reasonable targets ed history suggest that legislative Act, then, are interpretation doctors designed pre- provision is harassment discipline talking potentially place taking from these conversations vent patients in all with their about firearms certainly result That is in the future. a few narrow circumstances. but largely cease Doctors will it will achieve. regard- observation is order topic on the One final counselling into and inquiring interpretation. The firearms, ing the State they be of cross- Act’s lest accused district court’s decision life-saving deemed the providing between the line brief, (most, fire- unnecessarily patients harass about ... the State In its initial asserted arms, time) they though suggesting all of the that the word ... not while inquiry provision rendered "should” in the State cannot even broach areas.” If these advisory. Regarding provision purely next whether the decide one brief to the ex- provision, which included harassment against merely prohibits advises unnec- word, “should,” the State asserted same act certainly harassing patients, essarily doctors “prohibits] facilities and provision self-contradictory rely cannot on the State’s unnecessarily harass- from ... practitioners punish will not seek assurances guns.” same word ing patients who own provision for the harassment doctors under provi- one in the same statute rendered used speaking ways that some constituents deem mandatory. an advisory the other In but sion Judge Tjoflat recognized at political. to be As contradiction, the State to correct this effort simply argument, rules will cause oral these Legisla- Reply Brief "the in its asserted clear.” doctors to “steer *44 physicians with freedom to provided ture
907 inquiry provi- treat and harassment First Amendment requires height- “[t]he mandatory advisory as rather than scrutiny government sions ened whenever the an intentional “effort to render the Act regulation creates a speech because of however, Majority, unconstitutional.” The disagreement with message it con- accepts interpretation the district court’s added) (in- veys.” at (emphasis Id. provisions inquiry harassment omitted). quotation ternal marks Thus, mandatory. despite accepting are restricted here is part of a interpretation an of the Act that even the exceptional tradition of protection, and it would suggests State “render the Act un- certainly is not within an traditionally area constitutional,” Majority strikingly “proscription.” The Court has holds that the survives First Amend- explicitly recognized importance of a words, In scrutiny. Major- ment other free flow of information between doctor ity gone limiting speech has further patient, which explicitly this Act rights argued than the State it should or directly limits. physician “[T]he must could. know all that a can articulate in identify disease; order to and to treat bar
III.
full
riers to
impair diag
disclosure would
proscribes speech
The Act
about one
nosis and treatment.”
Trammel United
(firearms)
topic
by
group
speakers
one
States,
40, 51,
906, 913,
U.S.
100 S.Ct.
(medical
such,
professionals). As
the Act
(1980).
patients (too forcefully persistently) or that “the inevitable effect (explaining 2663 they speak of medical schools face” and “a statute’s patients about on its to their statute ownership deem firearm thought which may be considered purposes” stated (in- relevant. constitutionality evaluating purposes of omitted)). Doctors marks quotation ternal the why reason a second There exists in order to about firearms patients asked pro here deserves being silenced speech more tailored —and thus give specifically Amendment. the First under tection speech safety In- are afforded information. protections effective—firearm Greater concern, public matters of dealing deed, supporting with the State’s amicus curiae political, matter of so “any which include that the Act is neces- legislation explain community.” cial, concern to the or other questions can in- sary a “doctor’s because U.S. Snydеr Phelps, right patients’ with exercise terfere (2011) (inter 179 L.Ed.2d in a by putting patients arms] bear [to omitted). Firearm marks quotation nal they question their position where hesitant under public concern safety qualifies as physi- because of firearms So, too, regula does state standard. stag- That statement is disapproval.” cian Act, speech care. Under the tion of health suggests perceived It the gering. patients their re by Florida doctors truthful, non-mis- with doctors’ problem entirely pro the former is almost garding regarding firearm leading message latter, hibited, as it about the speech and message working, that was so the was .it itself, significantly Act is relates to the viewpoint That is classic was silenced. the complaint about chilled lest a doctor’s discrimination. anti-gun harassing, as perceived Act be Further, Majority’s the under politicking. pro- the contention that Despite State’s latter could be holding, about the speech just topic are on the gun doctors silenced doctor-patient entirely from eliminated doctors, the Act’s surely anti-gun as relationship.9 history any doubt as to legislative erases sought to si- viewpoint State which still, express purpose
Further
“the law’s
discussed,
history
legislative
lence. As
are to diminish
practical
effect
of the Act was
purpose
that the
safety messages
confirms
of firearm
effectiveness”
political
quences
rather than the
of firearms
Snyder
explains that "whether
also
listeners,
many
consequences
them. To
requires
public
private
us to
concern
form,
Amend-
content,
those well-attuned to Second
even
and context of
examine the
debates,
political
a doctor’s advice could
(internal
ment
speech.”
'S.Ct. at 1216
new, perhaps previously
unconsidered
offer
omitted).
quotation
The content of the
marks
may
change public
perspective that
well
views
certainly
speech prohibited by
Act
con-
personal practices. The State was
as well as
public,
speech prohibited
cerns the
as the
great
doctors'
aware of the
influence
no doubt
recognized by AMA be
has been
sharing might
knowledge and information
public
part
address a
health
of an effort to
debate,
public
be-
have on
perhaps cut
problem. The form and context
disagreed with the doctors’
cause the State
direction,
necessarily.
opposite
in the
but not
message,
powerful
it silenced them.
private
pa-
speaks in
to her
When a doctor
health,
safety during
topic
concerning public
topics
tients about a
like firearm
doc-
On
examination,
message
patients
ability
inform their
one-on-
the course of an
tors’
impact
consequences
legislation
fairly significant
on the
have a
one about
clearly to be a matter of
patients’
guns because doctors
even more
views about
seems
concern,
trusted,
though
public
even
knowledgeable,
presumably
are
private.
conveyed in
conse-
genuinely interested in the health
*46
firearm-safety messages
by professionals
that
and assigns varying
to silence
levels
scrutiny
attacks” and
perceived
“political
accordingly.
were
as
To the extent
“political agenda” against
of a
that framework
part
acknowledges
profes
that
Moreover,
ownership.
the State’s
sionals speaking
outside the
confines of
protect
professional
that
meant to
argument
relationship,
the Act is
on matters unre
conjunc-
rights
profession
the
of firearm owners—in
lated to the
are entitled to the
argument’s neglect
tion with the
of the
same First
protection
Amendment
as non
are,
rights
professionals
of non-owners—further evidences
I agree with that conclu
taking
fight.
the
is
in this
which side
State
sion. There is no reason to think that the
Thus,
practical operation,
authority
regulate
[Flori-
its
State’s
a profession
“[i]n
goes
beyond
even
mere content
entirety
professional’s
da’s] law
extends to the
of a
discrimination,
addition,
viewpoint
to actual
discrim-
In
Majority’s
existence.
con
(internal quotation
ination.”
Id.
marks
that
restricting speech by pro
clusion
laws
omitted).
heightened judi-
“It follows that
furthering
profession
fessionals
outside
scrutiny
cial
at 2664. a professional relationship,
is warranted.”
Id.
including com
speech,
subjected
mercial
must be
to First
Supreme
recognized that
The
Court has
scrutiny
Amendment
is well-settled. See
rare that a regulation restricting
“[i]t
Nev.,
1030,
Gentile v. State Bar
501 U.S.
speech because of its content will ever be
2720,
(1991);
111 S.Ct.
B. Thus, Majority dir. while the leaves the question open, catego- it declares that this Majority persuaded The is now the' ry speech may actually subject to a scrutiny Act is to some level of scrutiny more than in- level of deferential under the First Amendment. It is the scrutiny. termediate analysis ways, part follows where we Majority open possibility as the leaves signifi- This novel framework and the a more deferential approach restric- Majority cance that the attaches to it are speech tions of within the of a boundaries problematic. diminishes the First It professional relationship. protection profes- Amendment afforded to by permitting the to silence sionals State professionals topic the State whatever Majority’s analysis
The a two- fit. That is not what the Constitution creates sees dimensional, four-category precedent framework for commands. Our instructs assessing scrutiny apply, and we scrutiny applicable speech intermediate should here, on a cases and the Act there are several this standard for restrictions
relax
only
certain
critical differences.
where
professional’s
justify.
characteristics so
Lowe, Locke,
similarity
Lowe,
concurrence
Justice White’s
all
that occurs
this case
consider
(White,
But this rule does not be- Id. White concluded that because Justice cause, similarity fell into the latter while there is one be- the defendant’s аctivities applied. regulations category, tween the issue those the First Amendment Thus, Locke), only quently, regulation Lowe established State’s was relationship is a professional existence of a not directed at but instead at im burdening if a law necessary condition proving quality profession, the overall of a to evade First Amendment scru- speech is broadly speaking, by ensuring that only tiny. Nothing implied in Lowe that such a qualified practice individuals the profes support condition was See, e.g., (relying sion. id. on Lowe to sufficient fact, suggests In three conclusion. Lowe uphold restricting a statute practice conditions, all of have been more which design professionals); interior to licensed subsequent applying cases present Bowman, Soc’y Accountant’s of Va. rule, present and none of which are Lowe’s (4th Cir.1988) (relying F.2d here.10 reasoning up Justice White’s in Lowe to condition, In addition to the above Lowe restricting hold a statute the use of certain *48 contemplated speech also that would be terms in the work product of unlicensed burdened without First Amendment scru accountants). if tiny only consequence the burden was a A fourth final condition that is im- professional licensing of a scheme. Id. at plicit in the in contemplated rule Lowe is 229, at (discussing 105 S.Ct. “the content-neutrality great- least to a far —at government may that the principle restrict present er extent than is here. To be entry professions into and vocations ” sure, prohibition applied only the SEC’s through licensing (emphasis schemes topic advising, of investment but within added)). condition, there is a And third field, that it did not differentiate. It was recognizes government’s
which
that
if
not as
unlicensed advisers were left free
speech
ability
through
to burden
licens
products
to recommend investment
implicating
scheme without
the First
government preferred
govern-
as
Amendment “has never
extended to
—such
been
ment bonds—but restricted from recom-
encompass
licensing
speech per
se
mending anything
Similarly,
else.
in
229-30,
press.”
or of the
Id. at
105 S.Ct.
Locke,
designers
unlicensed
were not left
reasoning
developed
at 2583. This
has
design techniques
free to recommend
“any
into a
be]
rule
inhibition [must
government might prefer
energy
merely the
of observing
incidental
—such
effect
saving, “green” designs
restricted
legitimate
regulation.”
an
otherwise
—but
added)
In
Locke,
recommending anything
from
else.
at' 1191 (emphasis
634 F.3d
(internal
omitted).
least,
way,
speech
In
at
the burden on
quotation marks
(and
contemplating
cases
Lowe
subse-
cases like Lowe is content-neutral.11
exception
example, banning only obscenity
10. There is one
from the Ninth Cir-
excessive
cuit,
readily distinguishable
which is
from the
prurience
price advertising
in its
exclusive-
case,
instant
as will be discussed below.
fraud;
ly
industry especially prone
in an
prurience
withholding
and fraud are bases for
assertion,
Contrary
Majority’s
to the
protection
full First Amendment
from obscen-
principle
R.A.V.
content discrimination
ity
speech, respectively.
and commercial
See
—that
permissible
where the basis for that dis-
R.A.V.,
388-89,
at
In all four conditions were satis- practice profession by of a dental to the challenged provision was a con- fied. The licensing prohibits inqui- the unlicensed.13 The Act professional tent-neutral scheme may fairly purported speech be characterized charged State's interests do 12. Even if —the conduct, any limiting regulation targets relate to reasons for First as a which con- not profes- entirely speech protection applicable to Amendment duct that consists almost First, nothing speech. scrutiny. about sional not immune from First Amendment sure, authority regulate professions has State’s deemed an To be “it has never been anything protecting Second abridgment press to do with of freedom of or rights, physicians Amendment are in no illegal merely make a course of conduct be- initiated, position rights better to violate those than part the conduct was in evi- cause denced, citizen, point robustly other I discuss more by lan- or carried out means of Second, privacy may Lowe, herein. while well be guage. ...” 472 U.S. at supports potential J., an interest that limitation (White, concurring) (emphasis at 2582 protection professional speech, added) omitted). afforded to (internal quotation marks If applies that would warrant restriction primarily by language, conduct is carried out range however, to a wide of matters about which doc- difficult to claim that a it becomes currently may freely inquire, not one that tors regulation merely an of that conduct creates applies ownership only. Finally, to firearm speech. incidental burden on The there is no evidence that firearm owners have to fall under the rubric of com- then seems receipt encountered barriers to the of health- speech, to intermediate scruti- mercial harassment, care, discrimination, See, Sorrell, another ny. e.g., S.Ct. at 2667-68. address; words, point I will in other restric- Indeed, exactly considering what the in- guns related to is unrelated to tion on content quiry provision purports regulation profession be- to do shows how far the State’s nothing suggest the Act the scenario contem- that it fur- removed is from cause there is inquiry provision prohib- plated in Lowe. The thers that interest. ries, unnecessarily and ha- 132 S.Ct. keeping, record L.Ed.2d 574 (2012) (plurality opinion). discriminatory expression— and rassing nothing more than may which consist of Lowe’s rationale further supports the to store firearms more recommendations professionals conclusion that licensed en- safely or to remove them homes with joy First rights Amendment even when if are tak- children those recommendations they speaking are within the confines of a “political topic, en to be attacks” —on one professional relationship. Justice White safety. This of explained that renders the Act content-based rath- course require high a State can standards of content-neutral, distinguishing this er than qualification, good such as moral charac- case even further from Locke. law, proficiency ter or in its it before admits an applicant to the bar.... wisely has Lowe’s rationale been beyond parameters. these Lowe extended limiting govern- for
articulated reasons ... Clients trust investment advis- expression. into free It ers, ment intrusion protection if not for the of life and very catego- recognized only that a narrow liberty, at safekeeping least profes- ry speech speech unlicensed accumulation property. Bad invest- — practice in the one-on-one ment ... engaging sionals advice lead to ruinous losses for the client. To profession unquali- protect for which are inves- of a tors, may require the Government ... incidentally as a fied—could be burdened advisers, lawyers, investment like licensing profes- an entire consequence of evince qualities truth-speaking, holding pur- of Lowe and the sion. honor, discretion, fiduciary responsi- concurrence was to pose of Justice White’s bility. expand and thus to category, narrow that speech rights
the free
even of unlicensed
Despite
level of scruti-
some lesser
maintains that
Southeastern
Planned Parenthood of
by professionals
speech
ny may apply
833, 112
Pennsylvania
Casey,
professional
of a
rela-
the confines
within
(1992), reaf
915
framework
the health
Justice White’s
risks
abortion and child-
work because
882,
why
at
112
inapplicable. That
is
Justice
birth.” 505 U.S.
S.Ct. at 2823
was
(plurality opinion).
requirement
in Lowe and Justice O’Connor
The
also
White
Casey
opposite
“legitimate goal”
reached
conclusions about
advanced the
of ensuring
impli-
the First Amendment was
that women do not unwittingly
whether
suffer “dev-
cated,
why
opinions
astating psychological
and that is
the two
consequences” of
if
applied
less-than-fully-informed
making
cannot be treated as
decision
scrutiny.
“protecting
same level of
the life of the unborn.”
882, 884,
Id. at
ilar—in Casey. scrutiny in Id. at applied applies the one intermediate here. form—to 651, (holding that al- at 2282 S.Ct. implicat-
though the First Amendmeht was
3.
ed,
regulation compelling
disclosure
sup
from the Ninth Circuit
Two cases
in advertisements was
certain information
this conclusion as well. In Conant v.
“reasonably
port
long
constitutional as
as it was
interest”).
Walters,
Zauderer
the court
invalidated a federal
related to the State’s
that
the reasonableness
stan-
explained
regulation prohibiting doctors from recom
rigorous
there was less
than
applied
dard
marijuana
af
mending the use medical
14,
scrutiny, see id. at 651 n.
intermediate
Amendment
applying heightened
ter
First
14,
high-
case
Thus,
is,
Casey
Majority
as the
while
speech,
regulation
id. at 1229. The
notes,
Majority’s
“consistent with” the
Conant,
prohibited
which
doctors from rec-
framework, Casey
two-dimensional
does
ommending
marijuana,
medical
burdened
framework;
necessarily support
entitled,
least,
very
that was
at the
imply
correlation does not
causation. On
protec-
to intermediate First Amendment
contrary,
weight
binding prece-
time,
At
same
persuasive authority suggests
dent and
tions.
Id.
1226-27.
Casey
sug-
recognized
any speech
that neither
nor
other case
Conant
bur-
truthful,
significance
compelling
non-misleading
information concern-
opposed
restricting
it can be observed in
the risks of abortion and abortion alterna-
Casey
imagine
itself.
It is difficult to
that a
tives would survive a First Amendment chal-
prohibiting
providing
lenge.
statute
a doctor from
*53
equivalent
of the law’s
on the functional
as a resült
ban
medical treat-
dened
marijuana
regulated
fell into the ment can
scrutiny,
medical
be
without
prescribing
third,
category,
speech
directly
that
unprotected
'id.
is
related to medical
targets professional
the ban
con-
treatment does not fit within that category
because
(i.e., giving patients drugs)
only
Pickup.
and
under
duct
(i.e., writing
incidentally
speech
burdens
Here, in stark contrast to Pickup where
drug
prescription pad).
name of a
on a
the
speech
all of the burdened
was the func-
Similarly,
Pickup
equivalent
court in
concluded tional
of providing drug,
the
a
none
therapy, though
speech
by
carried out in of the
that SOCE
burdened
the Act fits in
form,
indistinguishable
category. Asking
from that
questions
verbal
was
irrelevant
drug
performing
ownership,
a
or
a sur-
about firearm
prescribing
recording the an-
words,
swers,
harassing
In
or
a
gery.
other
burdened
based on
exclusively the functional
speech
ownership by persistently
was
and ir-
—
ritatingly
There-
equivalent
discussing
subject
of the treatment
itself.
noth-
—is
fore,
therapy
ing
no
like
a
banning
giving patient drug
perform-
SOCE
was
differ-
a
or
Further,
some,
outlawing
drugs,
ing
therapy.
ent than
certain
and the
SOCE
(i.e.,
all,
speech
speaking
though by
speech
burden on
the ban on
no means
therapy)
by
that constitute SOCE
was burdened
the Act is
words
similar to the
necessary
speech
by
to the ban on the
regulation
incidental
burdened
Ca-
(i.e.,
sey.
perform-
disfavored medical conduct
To the extent that the Act burdens
therapy).
Pickup
speech designed
patients
Id. at 1230.
to inform
about
recognized
dangers
speech
that the law at issue went no the
of firearms or
de-
banning speech
necessary
signed
patients
ways
further in
than
to inform
of safer
firearms,
regulate
proscribed
speech
medical conduct. own
much
like the
right
“express
speech
Casey. Accordingly,
Doctors’
their views to
such
anyone, including
patients
speech
given
minor
and their
pro-
should
intermediate
subject,
parents,
including
Strengthening
about
tections.
this conclusion is
SOCE,”
that,
explicitly protected by
Casey
was
the act
the fact
while the law
exclu-
in question.
sively
speech necessary
fully
Id. at 1230.
concerned
a
patients
procedure,
inform
about medical
here,
regulations
regula-
like the
speech
the Act
also
that is
here
burdens
Conant,
in Casey
speech
tions
burden
purpose.
unrelated to this
The Act bans
fits,
least,
very
into
that
the inter-
irritating
questioning
poli-
irrelevant
category
mediate
First Amendment
where
ticking on the
of firearm owner-
prоtections apply. When the Ninth Cir-
nothing
ship,
by
which
definition has
what-
reasoning in
expanded
Pickup,
cuit
Lowe’s
soever to do with medical treatment or
very
narrowly circum-
it was
careful to
way
in no
procedure
medical
and is
de-
category
speech
left
scribe
was
patients
anything
about
signed to inform
unprotected. Only speech that is the func-
of medical relevance.
equivalent
surgery
tional
performing
a broad
prescribing
drug
can be burdened
Because the
burdens such
scrutiny
physician speech
topic
It
swath of
on the
Pickup.
without
under
is well
noting
including speech
defini-
speech
worth
burdened
firearms —
medical treat-
Casey
scrutiny
nothing
received intermediate
even tion has
to do with
Conant,
heightened
though
exclusively
applied
intend-
which
was
ment —
fully
scrutiny,
directly applicable.
Doctors
patients
ed
inform
about medical
Thus,
right
to ask
procedure.
even if
is have a First Amendment
*54
discuss,
Asking
at
and to
Lowe’s rule. 740 F.3d
1225.
about firearms
questions
they engage
prac-
of
someone whether
in a
pros
and cons
persistently,
even
(“Do
smoke?”)
just
you
tice
is far less like
patients
with their
firearm
discussing
medical conduct than
the dan-
right
have the
to discuss
surely
as
as
marijuana.
gers
engaging
practice (“Smoking
in the
of medical
pros
and cons
cancer,
you
X,
lung
cannot be labelled un-
causes
so
should use
Such communication
Y, Z
It
simply
stop.”).
because it takes
or method to
is even more
protected conduct
an irrelevant
professional
asking
of a
obvious than
someone
place
the confines
within
(“Do
so,
you
gun?
If
Pickup
nothing
question
does
to un-
own
we
relationship.
far
like
go hunting.”)
and in fact reaffirms
should
is
less
medi-
principle
dermine this
discussing
I make
cal conduct than
it,
though
no
740 F.3d
(‘You
correctly
your firearm
am-
Pickup was
should store
comment on whether
separate,
munition
locked safes
use
decided.16
lock.”).
trigger
simply
Thus it is
inaccu-
a regula-
rate to characterize the
as
reg-
tion on medical conduct rather than a
patient obviously
a doctor asks his
When
speech.
ulation on
questions, the doctor “does not
irrelevant
judgment on
purport
exercising
to be
be-
The Act is unlike other State laws that
individual,”
half
so Lowe
particular
only incidentally
speech;
burden
it direct-
regulation ceases to
says
“government
that
can it
ly
questioning.
possibly
bans
How
regulation
profes-
legitimate
function as
doctors,
argued
telling
be
that a law
“Do
only
impact
with
incidental
practice
sional
questions
guns,”
not ask irrelevant
about
regulation
speak-
speech;
on
it becomes
only incidentally
right
burdens the
to ask
such,
ing
...
to the First
questions
guns?
irrelevant
about
The bur-
].”
Amendment!
By
den could not be more direct.
con-
(White, J., concurring).
at 2584
trast, a
malpractice regime
medical
that
Further,
above,
only
holds a doctor liable when his
as discussed
unreason-
beyond
the licens-
able treatment causes a
harm has
case
extends Lowe
context,
limiting
only
speech.
set a
ing
Pickup, also
incidental burdens
Under
regime, liability
principle.
questioning
prescrib-
Irrelevant
doc-
attaches
(for
wrong
directly
of ar-
purposes
drug,
burdening
tors about firearms
hunting
going
politi-
giving patients
on a
bad
harmful
ranging
trip
practice
rant)
clearly
drugs
incidentally burdening
cal
the functional
is
care,
equivalent
providing
right
drug
which was
to write the name of the
on a
Liability
only
Pickup
prescription pad.
context which
extended
also attaches
professional relationship
16. The Ninth Circuit's decision not to take the
within the
dissent,
spirited
case en banc drew a
which
related to medical conduct but is not itself
“[b]y labeling
stated that
...
as 'con-
conduct)
(con
unprotected category
and the
duct,'
panel's opinion
entirely exempt-
has
professional relationship
duct within the
regulation
ed such
from the
Amend-
First
through speech) may prove
carried out
doing,
panel
ment.
In so
...
insulates
erred,
illusory.
Pickup
the court in
it
If
scrutiny
from First Amendment
California’s
by putting
much
into the
did so
too
prohibition'
guise
professional
of a
—in
unprotected category.
Humanitarian Law
Cf.
regulation
politically unpopular expres-
—of
Project,
As
(or
continue,
er,
counseling
directly
what the
so it is not
quack
even if
medicine
medicine)
regulating
can
quack
declaring
deems to be
be
medical conduct or
State
scrutiny, doctors cannot
certain form of treatment bad medicine.
prohibited without
time,
patients
directly
to their
At the same
the Act
bans
prohibited
talking
be
asking
questioning
472
at
irrelevant
about fire-
quack
about
medicine. See
U.S.
(White, J.,
even,
especially,
ques-
at
concur-
indeed
those
105 S.Ct.
arms —
(“I
having nothing
think
could tions
to do with medical
ring)
State]
do not
[the
directly targets
...
conduct. The Act thus
privately
speak
make it a crime
reject any
only
urging persons
questioning
incidentally
to follow or
and
advances
(internal
thought.”
quota-
might
of medical
whatever medical
interests
be
school
omitted));
eliminating
tion marks
Applying this rationale
foregoing leads to the conclusion
stating
drafted a law
that it is bad
State
than intermediate First
patients
nothing
to counsel
on firearm that
less
medicine
that,
scrutiny applies. For the Act
may Amendment
accordingly,
doctors
“First,
survive,
government must
not,
part
practice
preventive
support
interest
medicine,
assert a substantial
patients
counsel
on firearm safe-
second,
government
might
regulation
regulation;
with a
its
ty,
dealing
we
...
that the restriction
the law in must demonstrate
malpractice
like
laws and like
in-
Further,
directly
materially advances that
drafted
Pickup.
had the State
ends,
terest;
third,
regulation
though
must be
and its asserted
the Act need
It,
For
fit.
clari-
narrowly
perfect
drawn.” Went
not be a
Id. Sorrell also
(internal
quota
at 2376
regulation burdening speech
at
115 S.Ct.
that if a
fies
Sorrell,
omitted);
under-inclusive,
see also
addressing
tion marks
one area
but
Hudson,
2667-68;
at
Central
larger problem,
this is evidence
“[Interme
justification
U.S.
be insufficient to sus-
scrutiny]
only
standards ensure not
diate
scrutiny.
tain the law under intermediate
*56
proportional
that
interests are
the State’s
at
131 S.Ct.
resulting
placed
burdens
following
The State asserts the
inter-
not seek to
but also that
the law does
(1) securing
improving
ests:
and
health-
Sorrell,
message.”
suppress
disfavored
(2)
owners;
care, particularly for firearm
we
not
interests
(4) preventing
against
discrimination
by
put
suppo-
forward
the State with other
and harassment of firearm owners.
I as-
It,
For
Now, however,
told
doctors are
doubt
this law will cause doctors to
because
less,
more,
questions
patients’
irrelevant
about fire- know
not
about their
not to ask
if
arms,
ownership
can rest assured that
patients
firearm
status. As the amicus
relevant,
firearms, it is
suggests,
poten-
doctors ask about
curiae
this information is
interest
tially important
patients’
know it is
their best
patients
well-being.
so
course,
question.
Of
there Much of that lost information
to answer
will include
protections prohibiting
initially questionable
are no additional
information of
rele-
information,
that,
disclosing
late,
only
the doctor from
vance
after it is too
will
in full
original
prove
peo-
fear remains
force.
to be critical. That is
so the
bad
also know that
The
far
ple’s
But firearm owners
health.
State falls
short of
answering
of not
are
consequences
showing
directly
health
that the Act
and material-
now, because the
probably
ly
anyone.
more serious
advances healthcare for
At
Thus,
most,
the cal-
question
poli-
is more relevant.
State seeks to achieve its
“[t]he
slightly: answering,
objectives
while
changes
cy
through
culus
the indirect means of
privacy rights,
potentially
restraining
speech by
detrimental
certain
certain
Sorrell,
doing
not
appealing
speakers.”
becomes more
because
vital to effective not drawn serve interest.” Id. at that the of information between doc- flow Indeed, entirely unnecessary it is Thus, tor and be unobstructed. *59 serve that interest. reasons, im- the amicus curiae the Act it proves healthcare because removes argument premise This launches from a n potential suspicion fundamentally misunderstands one obstruction — privacy consequences disclosing firearm keeping medical primary purposes ownership outweighs the health benefits— way information confidential. The best to blocking that was the free flow of informa- information is not ensure that confidential patient on the tion between doctor is to divulged through our doctors avoid If Legis- of firearms. this was the sharing any information with doctors at all. goal, poorly view, lature’s its chosen means are But if we took that doctors would In order to remove an very suited to the task. The infor- obviously not be effective. information, the obstruction to the flow of to give potential mation them has the we altogether. lives, eliminated the flow This give freely, State our so should it save we simply does not withstand intermediate should ask for it without hesi- and doctors scrutiny. tation. information-sharing with our accept unlikely premise if Given
Even we medi- life-saving potential, has unwilling that firearm who were to doctors owners have built community cal and the State ownership information disclose rela- doctor-patient around the passed high before this Act was walls their doctors walls, now, that within those tionship is no to ensure willing will be to do so there Therefore, any informa- while the be used for the collection of are no secrets. there (A) ownership the lawful protecting relating interest in tion strong has a State (B) ammunition; records, confidentiality any possession of firearm or of medical ammunition; Act, of a firearm or directly burdens the lawful use claim that the which (C) a firearm or information-sharing, storage is or the lawful speech and limits § 300gg-17(c)(2). from ammunition.” 42 justified by suspect these concerns is U.S.C. disclosing very may Patients also refrain from the outset. The Act itself causes the status, which, confidentiality designed pre- ownership their firearm harm is above, proven has not to be det- limiting the flow of information discussed vent: ways in anyone’s except rimental to care patient. doctor to uncooperative patients, that befall all event, justify In for the State to just questions those who refuse to answer to further burdening speech order its about firearms. confidentiality, it interest must confidentiality directly materially that this Act Given that the of medical show closely guarded already, records is addresses a real concern. The concern status, privacy prevent if need to further ensure ownership that firearm recorded files, justify placed will not confiden- misuse cannot the burden medical remain by entirely speculative tial is and therefore doctors’ the Act: “The choice It, at infor- dangers suppressing insufficient. Went For between the mation, dangers and the of its misuse if it freely available is one that the First The record reflects no incidents of fire- Sorrell, Amendment makes for us.” arm-ownership information from medical (internal quotation S.Ct. at 2671 marks being parties, records disclosed to outside omitted). variety and there are a of measures that, suggests will also even if place to ensure such incidents State princi- kept never occur. In addition to ethical information is confidential from the world, confidentiality may incur ples, patients of medical records outside still ad- consequences privacy by is secured state and federal laws dis- verse loss Maj. n. if by Majority, Op. professionals cussed other medical are able suggested argument 24. It was also at oral determine firearm status from that, harm Again, as a result of the Affordable Care medical records. ad- records, digitization entirely speculative. and the of medical dressed here government bureaucrats somehow personnel Those doctors and are medical records, gain providing confidentiality access to medical bound the same restric- *60 just government the with information on fire- tions discussed. And there is no ev- ownership. arm To the extent such idence to validate the State’s fear already information not from re- patients is available whose firearm is sources, Act in other the Affordable Care corded their medical files will receive explicitly prohibits subsequent the information from worse care from doctors as being gathered through medical records: result of this information. Fear of this provided type purely speculative “None of the authorities to the and cannot sat- Secretary isfy the the intermedi- [Affordable Act] under Care State’s burden under It, ... may scrutiny.17 shall be construed to authorize or ate See Went For only speculating 17. Given that the State is files will cause them to receive worse care doctors, patients' subsequent equally that irrelevant in medical from it if notations seems 790.338(4). § the swer. See Fla. Stat. There- at 2377. As U.S. a con- “[p]rivacy is explained, fore, privacy Court has particular with this interest person integral cept too mind, plainly the Act is more extensive its to freedom to allow too essential right necessary patients’ than to serve interest ideas just those support to manipulation keeping the information from their doc- Sorrell, 131 prefers.” government the the prong tors and fails under third at 2672. scrutiny. intermediate patients’ Majority relies on Finally, the information, private in protecting interest C. owner, a firearm including status as Maj. Op. at 897 physicians. own See their way, if a physician In the same waits merely wants to If the State n. gun ownership until the risk of manifests right the to decide patients reserve for suicide, homicide, itself in a or accidental ownership, firearm whether to disclose shooting, physician will have missed not allow individ- poor Act is a fit. It does to an opportunity prevent such adverse to decide that their patients ual consequence gun ownership. potential of their doctors’ ownership status none precisely this is the situation the Act Instead, Yet patient never has business. the decision because upon just physicians the chance to make also forces but is unable to broach the sub-* the doctor will, patients, directly their who more would ject.18 provision A better tailored forcefully, consequences feel inquire simply re- physicians allow something happens” until bad Act’s “wait quire respect patients’ them to their deci- mandate. But Act sion to decline to answer. pro- next asserts that the Act State opposite. It allows doctors to
does
rights.
Amendment
There is
patients
who decline to an-
tects Second
refuse
see
acquiesce
goal
burdening
plausible
subsequent
in the State's
not more
to think that
speech by
speakers.”).
disfavored
disfavored
provide
care based on a
doctors would
worse
history
patient's
of a
recalci-
documented
(cid:127)
signs, symptoms, or
18. In the absence of
trance, tardiness,
time,
pay
bills on
failure
condition,
complaints of an illness or
it is
frequent follow-up
Yet
re-
calls.
doctors
imagine
physician
how a
would
difficult
main free to make these —and
other-—(cid:127)
particular ques-
reach the conclusion that a
patients’
medically
rec-
irrelevant notations
questions would
"relevant to the
tion or
be
ords,
though
consequences
even
would
safety,
patient's
care or
or the
medical
just
the concerns the
seem to be
as severe as
cases,
And in some
it is vital to
of others.”
purportedly
addresses. When statute is
generally
physi-
patients
the health
under-inclusive, it belies the fact that the
so
regarding
with-
inquire
certain matters
cians
purpose.
statute has another
As
Court
any particularized relevance determina-
out
Sorrell,
explained
“[pjerhaps the State
tion,
warning signs can
that conditions and
so
confidentiality
have addressed ...
could
developing
caught
into more seri-
before
through
policy.... A
a more coherent
statute
ous,
example,
life-threatening matters. For
quite
type
present
a different
of that
would
course,
a doctor
ask
as a matter
presented
than the one
here. But the
case
diet and
habits in
about his
exercise
purpose
did not enact a statute with that
State
patient's
of heart
risk
order to assess
*61
Instead,
design.”
927 enough private fice is no more and is entitled to no foods; get ask us if we internists Sorrell, enough greater protection.” much and not drink too soda sleep, (second omitted). in citation This state- water, engage unsafe and whether we regard rendered with to doctors causing ment was practices), (hopefully) sexual offices. If do not have a we should continue their own question whether us to from right behavior. No to be free unwelcomed visitors in that harmful engage to offices, right patients to their own who volun- anyone’s that it is disputes one tarily certainly activi- chose to visit doctors do any of the aforementioned еngage ties, greater protections ques- not have from absolutely no evidence and there by the doctors That is intruding tioning on firearm own- themselves. that doctors are when, already in- particularly than are true as ex- any more doctors rights ers’ plained, any question the answer to about on of the above-mentioned truding right to do some- firearms will not lead to adverse conse- rights. That we have quences. right not mean we have a be thing does right about that or questioning free from regard to the State’s asserted Sec- With suggestions people people from of other — justification, like its medi- ond Amendment on voluntarily went to see for advice
we justification, “[t]he cal State seeks may tell us healthy live lives—who how to objectives through the policy achieve its par- in a exercising particular right restraining certain indirect means way is a bad idea. ticular speakers.... certain But the speech by would make bad decisions compelling people more fear that potentially As for other use, relinquishing their if firearms] a doctor could as persuasion [such means of justify information cannot providing given truthful refusing such as treatment speech.” on Id. at give up content-based burdens patients treatment unless worse (internal arms, quotation marks omit- absolutely no evidence 2670-71 their there is ted). message fact that a doctor’s being means used. Such The that such are incompatible with justify firearm speculative fears are insufficient firearm own- protect the State’s desire to regulation that is to intermediate It, questioning or ers from uncomfortable scrutiny. For 515 U.S. Went im- safety does not counseling on firearm at 2377. 115 S.Ct. concerns and Second Amendment plicate noted Perhaps respond, one could to silence a simply the State’s desire belies above, asking preventing doctors disagrees. it message with which in most situa questions firearm-related put are people tions ensure fewer will D. being away turned position in a that the Act is finally asserts But the The State failing questions. to answer such and dis- prevent harassment right designed not include a right to bear arms does firearm owners. against crimination question about whether not to be asked provides very little evidence—no even State privacy arms. “Personal one bears support its a few anecdotes—to ‘ample protec more than own home receives one’s being patients are discrimi- contention unquestioned from the ‘resident’s tion’ harassed on the basis against nated engage in conversation right to refuse It doubtful whether ownership. Bi with unwelcome visitors.’ Watchtower establish that N.Y., is sufficient to Village such evidence Tract Inc. v. ble & Soc. in a “di- advance an interest Stratton, the Act will It, (2002). way.” For material Went A of- rect physician’s L.Ed.2d 205 *63 928 (internal at identical anecdotal evidence of harassment
U.S.
omitted). A
quotation
“governmen-
Sorrell,
marks
Supreme
the
Court stated: “[A]
body seeking
tal
to sustain a restriction on
reported
they
few have
that
felt coerced
speech
...
must demonstrate that
the
and harassed....
It is doubtful that con-
harms it recites are real and that its re-
physicians
may
cern for ‘a few’
who
have
striction will in fact alleviate them to a
...
‘felt coerced and harassed’
can sustain
degree.”
material
Id.
115 S.Ct. at
a broad content-based rule like” the Act.
(internal
omitted).
quotation
marks
here,
Regarding particular, harassment in provision puts scrutiny chill that stand intermediate as a result. the harassment on Indeed, protected speech significant, “[m]any doctors’ are those who must en- provision and the benefit of the is minimal they like, speech dure do not but that is a given how innocuous the “harassment” necessary cost of freedom.” Id. allegedly place that takes seems to be. As provision presents The discrimination a I, simple discussed Part doctor’s rec- with, question. begin closer To unlike the ommendation to remove firearms from a inquiry, recording, provi- and harassment present home where children were was sions, directly targeted by is less prompted passage one of the incidents that A provision of the Act. doctor could presumably of this Act and that would inquire into and record information about if constitute “harassment.”19 Even doc- facing firearms with little fear of a discrim- might ultimately disciplined tors not be for charge simply doing ination those behavior, certainly this Act will such cause mean, however, things. That does not many engage of them not to in it. remained, if the provision discrimination Were evidence harassment no speech prohibited would be or chilled. against greater, firearm and had owners so, obviously While less doctor who legislative history explicitly stated presses patient on the issue of firearm that the Act was needed to prohibit doc- ownership, engages in tough questioning advising patients tors from relinquish subject, repeated- and recommends in pursuit political agenda— firearms of a ly that a patient remove firearms from his is, apparent were it not home discriminating could seen as goal unpopular State’s was to eliminate against patient. typically would speech rather We than harassment —the con- think of such behavior stitutionality provision more as harassment harassment discrimination, well be different. But that is not than as but the Act itself case nearly before us. Confronted with does not define either.20 A who is Again, Majority 19. patients' defines "to harass” as lieve is best for their health and well-being. persistently.” "[t]o disturb or irritate I am by certain that most are smokers "harassed” confronting In a case a somewhat similar smoking their doctors about under this defini- issue, Judge then Circuit Alito used the term apply persistence tion. If doctors same "discriminatory harassment” to describe fed including recommendations — prohibitions. eral Saxe v. State Coll. Area removing firearms from homes with chil- Dist., (3d Cir.2001). Sch. 240 F.3d they smoking dren—-as do to cessation recom- provision Even if the harassment ed, then, is invalidat mendations, are, according Major- it seems that the same which ity, harassing patients their and therefore might constitutes harassment constitute "dis discipline. One would think that criminatory pro harassment” and thus be ought persist encouraging doctors their provision. scribed the discrimination Fur patients genuinely to do what doctors be- ther, I, supra legislative as noted in Part (1995) added). But harsh, (emphasis this is tough-love 487 relatively subjected to easily be- anti-discrimination law or a typical could not a from doctor treatment *64 case, against be- being discriminated because unlike the statute typical lieve he is patients owns a firearm —other Hurley, cause he the Act here is before Court being are not firearms do not own way, who “unusual in obvious since it does an[ ] doctors, but by their lectured persistently ..., face, target speech ... on the on its being firearms are who do own patients basis of its content.” Id. 115 S.Ct. they own fire- precisely scolded because at 2347. me, That, could be it seems arms. almost no evidence of State offered Act. by the prohibited discrimination Indeed, conduct-based discrimination. Further, provi three if the other even only examples actual of adverse conduct down, doctors’ are struck sions by people cited the State befell who re- a result of the will be chilled as
inquiries
status,
people
to disclose firearm
not
fused
consti
provision.
Inquiries
discrimination
were known firearm owners. There
who
discriminatory mo
strong
tute
evidence
involving billing
an
for ser-
was
incident
tive, see,
Cnty.,
v. Madison
e.g., Barbano
rendered,
allegedly not
but that in-
vices
(2d Cir.1990),
141-46
922 F.2d
away
turned
for
volved a
who was
they
if
ask
fear that
rightly
doctors will
And other
refusing
questions.
to answer
subsequently
patients
about firearms and
service,
for
which
patients were declined
any aspect of their treat
complain about
conduct,
discriminatory
not
constitutes
ment,
inquiries
initial
will be
the doctors’
they
but
were declined for service
speech,
against
sup
ammunition
them
used as
because, again, they refused to answer
standing
claims. Even
port discrimination
they
not because
were known
questions,
alone,
provision thus
the discrimination
Thus, there is evidence
firearm owners.
chills firearms
significantly
prohibits
being
are
discriminated
people
that
doctors,
by
though
proba
it
related
their doc-
against
refusing
for
to answer
speech than the
bly has a lesser effect on
there is no evidence
questions,
tors’
but
provisions.
other
Act’s
being
are
discriminated
patients
that
reject
I
asser
Accordingly,
State’s
they
because
own firearms.21
against
provision
that
the discrimination
tion
simply
support
cannot
its as-
The State
scrutiny
First Amendment
as
evades
of prevent-
that the Act is a means
sertion
conduct,
discriminatory
not
regulation
against fire-
type
of discrimination
sure,
Supreme
To be
Court
speech.
examples do not
arm owners because those
pro
that anti-discrimination
explained
has
against firearm
discrimination
constitute
designed
discriminatory
visions
to address
did,
if
the Act
matter,
owners. And even
not,
vio
general
conduct “do
as a
away pa-
to turn
expressly allows doctors
First or Fourteenth Amend
late the
see
questions,
who refuse to answer
tients
Gay, Lesbi
Hurley
ments.”
v. Irish-Am.
790.338(4),
Bos.,
§
so it cannot be
Fla. Stat.
Grp.
an & Bisexual
that form
571-72,
justified as an effort to eliminate
132 L.Ed.2d
away
refusing
patients
would turn
history
by the
was said to contain
doctors
cited
State
Indeed,
examples
questions
any topic.
faced
if
of "actual discrimination”
on
to answer
examples almost ex-
owners. Those
patients
who re-
to treat
doctors continued
speech.
clusively involved
would
questions, doctors
fused to answer
significant malprac-
séemingly
exposed to
way
21. There is no evidence in the record one
liability as a result.
tice
point,
suspect
I
the other on this
but
discrimination,
Further,
point-discriminatory
either.
the Act
restrictions
unnecessary to protect patients
from speech.’ DeAngelis,
will be eliminated. As Went For It ex
interests are proportional
resulting
plains,
statute cannot
intermedi
.survive
placed
burdens
but also that the
scrutiny
assumption
ate
on the
that it will
law does not seek to
suppress
disfavored
entirely speculative problem.
solve an
See
message.”).
at
115
at
515 U.S.
2377. This
that,
proves
Hurley,
also
unlike in
where
V.
provision
discrimination
was found not to
Amendment,
implicate the First
here the
I also believe the Act to be void for
point
prohibition
“focal
of [the]
[is not] on vagueness.
outset,
At the
because this
discriminating against
the act of
individu
right
“law interferes with
free
provision
publicly
als
available
...,
stringent vagueness
more
... services.”
tive such in- Relatedly, prohibition on routine information, is ing, patient-specific absent quiry assuming prohibi- there is such a — the Act was exactly type hopeless in a bind. physicians tion—leaves designed prohibit. good If to reach the faith a doctor is highlighting vague- the Act’s Further that firearm is relevant conclusion ness, the State is not even clear on wheth- first in- particular patient, a he must provision advisory is or inquiry er the patient quire patient of that whether responsi- the Board mandatory. Initially, a firearm in the a'family keeps member enforcing the Act informed doctors ble for place pa- other where the home or some Then, mandatory. it the Board that was may it. But the doctor cannot tient access it was changed course and stated faith as to good that without his belief do Similarly, in Part advisory. as discussed an require can relevance. How II, characterization of the in- the State’s it- that the Act individualized assessment contradictory, internally is quiry provision may a impossible? If doctor self renders advisory it at times as describing subject, what then inquire on the Again, people of proscription. times as a a a to conclude that would allow doctor what intelligence guessing common are left A pa- relevant? firearms discussion was prohibits. the Act keeps gun a volunteering that he tient standard, likely meet have re- home would surprisingly, plaintiffs Not likely to be ways, though this strikes me variety Act in a sponded to this harassing no persists, rare occurrence. What else? Would doctor he is doubt is, however, patient’s wearing a T-shirt emblazoned patient. question The is logo with the National Rifle Association’s necessary? that harassment prohibition a circular be sufficient? Such course, Of the doctor does not know with ordinary intel “give person does not any great precision he cannot ask because opportunity to know ligence reasonable ownership, compounding about firearm certainly will “lead prohibited” what is problem per- further. intuition Medical citizens to steer far wider of the unlawful haps persistence tells the doctor is Grayned City Rockford, zone.” See necessary, but the doctor is left with no 108-09, 2298- U.S. guidance on whether this intuition is suffi- (1972). inquiry 33 L.Ed.2d The (i.e., persistence cient to render harass- then, provision, unconstitutionally vague. ment) necessary purposes of the Act. provision, The harassment which bans Legislative history suggest would that this harassment, unnecessary only also leaves exactly point at which doctors are people intelligence guessing of common supposed stop, simply but it is not clear may go about how far doctors in counsel- may pun- from the Act what doctors ing patients safety. Intuitively, on firearm doing. Majority’s sugges- ished for initially when doctors are met with resis- brief, may tion that engage gen- doctors patients medically tance from on a impor- good eralized discussions does no because subject, persist tant doctors should for the know, patient’s the doctor from the good patient. example, of the For if a reaction, that the initial discussion did no patient doctor knows smokes and advises good Majority’s whatsoever. The further so, him dangers doing *67 that, cases, suggestion in some a doctor may become irritated. the doctor While máy patient’s conclude based on a particu- approach should take a different perhaps lar that the persist circumstances need to counseling, certainly to his he should not clear, will be guid- also offers doctors no simply counseling the the cease. because proceed majori- ance oh to how the vast Indeed, patient irritated. is the doctor will cases, ty of persist where the need to will likely persistent have to be more irri- not be obvious.22 again, people Yet tating with this smoker than with the intelligence common guessing. are left responds favorably who smoker to the doc- initial counseling, signaling tor’s that the Again, uncertainty compounded by the is message doctor’s has been received. fact the that the State claims firearm safe- often, ty if counseling always, good is not might One think that the same is true of patients. for If that counseling good is firearm owners. If a initial doctor’s coun- patients, then it makes no sense limit to seling by patient, is well-received the the counseling that to the distribution of a doctor knows message that the has been received, pamphlet generic and a discussion is subject so he need not broach the Instead, likely impact. initial to have little to no again. But if a counseling doctor’s if resistance, counseling good, is common suggests is met with intuition sense patient may they ought persist that this be—like tells doctors that to the smoker counseling subject counseling, point resistant to past even —the counseling. anyone’s guess one most need of further irritation. It is whether Here, the Act uncertainty. creates If the doctors doing continue so after to- Normally, a doctor would able be to make whether he owns a firearm. Thanks to the simply by asking inquiry provision, longer option. the determination that is no an VI. instead holding, or whether will day’s practice medicine. licenses to their lose great speech Act deal of The silences speakers topic. on one group one con- forward these put who people subject directs us to Precedent therefore internally inconsis- times tradictory and at scrutiny, Act to at least intermediate possess of the Act interpretations tent under which fails. it If intelligence. common, exceptional if not designed prevent is not to This law irrel- Act about what the guessing left they are the doctor- speech harming evant the Act proves that all but prohibits, it allows patient relationship, because irrel- some of Sadly, suspect I vague. is to relationship within that speech evant have continued doctors practices Far from continue as it did before. much probably despite will engage speech in a doctor’s stopping irrelevant doctors to well-intentioned these office, virtually allows all Act instead them, simply like I do but discipline, stop- irrelevant to continue while know. virtually all ir- ping —relevant fire- single topic: relevant alike—about a pros- is the Exacerbating the situation improve designed arms. This law is not liability. If firearm pect malpractice because, as the healthcare as far medical counseling brief of ex- safety —-whether concerned, will community this law reducing pros- capable of tended —is This law is not make healthcare worse. injuries, accidental firearm related pect of protect privacy priva- because designed is, avoid it then to as the AMA believes already at issue is cy of information provide firearm liability, doctors should designed pro- law is not secured. This counseling If that is too counseling. rights Amendment because tect Second pediatri- generic or too brief —because authority have not doctors have no —and inquiry sought comply cian with private positions power used their —to it of the Act—but provisions harassment relinqúish compel firearm owners to their specif- persistent, can that more proven designed to law is instead weapons. This pre- ically counseling tailored would have it agenda, and stop perceived political load- *68 a child who found her father’s vented designed law difficult to conceive ed, accidentally firearm from unlocked withstand First purpose that could herself, may suspect I well shooting jury scrutiny. Amendment regardless find the doctor liable. And perhaps particularly Even if—doc- if— attaches, I liability malpractice whether actually waging political cam- tors were that doctor who will the death feel for have being perceived merely than paign rather conscience the rest of of a on her child fo.r so, Amendment would doing the First her life. like the Act. them from laws What protect enough jobs Doctors’ are hard when troubling that there is no evi- more is laws that force them does not enact State actually pursuing are dence that doctors asking questions and twice about think patients. Doctors agenda with political information save lives. providing patients from exercis- prohibiting are not is, arms; are, vague thinking per- this Act twice Given how to bear right so—or nearly enough for doctors not to do convincing patients will not be haps, precisely the protect safely. to do to their This is figure out what to do so more hand, the First Amendment comply type and to patients, on the one pro- the Act protect. Because Act, designed on the other. with the from even asking Mbits doctors the first conversation,
question in this the Act is Accordingly,
unconstitutional. the district affirmed,
court’s decision should be I respectfully
therefore dissent.
Ricky KNIGHT, Irvin, Franklin et
al., Plaintiffs-Appellants, Adams, suing individually
Thomas Otter persons
and on behalf aof class of
similarly situated, Billy Two Feathers
Jones, suing individually and on be persons similarly
half of a class of
situated, al., Consol., et Plaintiffs-Ap
pellants, THOMPSON,
Leslie in his individual
capacity, Parker, al., Donald et
Defendants-Appellees, Stricker,
William S. Ellen Leon Ruth
ard, individually et al. and in their capacity, Consol.,
official Defendants-
Appellees.
No. 12-11926.
United States Court Appeals,
Eleventh Circuit.
Aug. 2015. .