*1 dence, Responsible Doctors for Gun WOLLSCHLAEGER, Bernd Dr. Ju Dr. Ownership, National Rifle Association Schaechter, Tommy Dr. dith Schecht America, of American Medical Associ man, Academy American of Pedia ation, Florida, ACLU Foundation of trics, Chapter, Florida American County Society, Alachua Medical Academy Family Physicians, of Flori Association, American Public Health Phy Chapter, College da American of American Suicidology, Association of sicians, Chapter, Inc., Florida Roland Suicide Awareness Voices of Edu Gutierrez, Stanley Sack, Shannon cation, Law Center to Prevent Gun Fox-Levine, Plaintiffs-Appellees, Violence, Amicus Curiae. No. 12-14009. OF THE GOVERNOR STATE OF United States Appeals, Court of FLORIDA, Secretary, State of Flori Circuit. Eleventh da, Surgeon of the General State of Secretary, Florida, Health Care Ad Dec. Florida, ministration of State Director, Department Division Florida Health, Quality Division of Medical
Assurance, George Thomas, Jason
Rosenberg, Zachariah, Zachariah P. Tucker, Espinola, Trina
Elisabeth Stringer, Orr, Gary
Merle James Win
chester, Sanadi, Nuss, Nabil El Robert Lage, Bearison,
Onelia Fred Donald
Mullins, Brigette Goersch, Rivera
Bradley Levine, Defendants-Appel
lants. County Association,
Broward Medical County Society,
Broward Pediatric County Society,
Palm Beach Medical Association,
Florida Public Health
University of Miami School Law Clinic,
and Youth Children’s Health Legal Duty, Inc., Early
care is a Foundation,
Childhood Initiative Academy Pediatrics,
American Academy
American of Child and Ado Psychiatry,
lescent American Acade
my Family Physicians, American
Academy Surgeons, Orthopaedic College Surgeons,
American Ameri College Medicine,
can of Preventive College
American of Obstetricians Gynecologist, Congress American Gynecologists,
of Obstetricians Psychiatric Association,
American Jurispru
Center for Constitutional
David H. Thompson, Cooper Kirk, & PLLC, Washington, DC, Thomas Richard Julin, Isani, Zysk Jamie Yoakley Gunster Stewart, PA, & Nancy Abudu, Ghana Ma- ria Kayanan, ACLU Foundation of Flori- da, Inc., Gerald Edward Greenberg, Gel- PA, ber Schachter Greenberg, & Grace Mead, Lee Stearns Weaver Miller Weis- Sitterson, PA, Miami, FL, sler Alhadeff & Marshall, Randall C. American Civil Liber- Union, AL, ties Montgomery, for Amicus Curiae. WILSON,
Before TJOFLAT and Circuit Judges, COOGLER,* Judge. District ON PETITION FOR REHEARING TJOFLAT, Judge: Circuit sponte We sua vacate and reconsider matter, our opinion revised in this report- ed797 F.3d 859 . We substitute in its place following opinion.
Douglas Hallward-Driemeier, Bruce S. Florida, The Governor of the State of Manheim, Jr., E. Lowy, Daniel officials, Jonathan other Florida and members of the Vice, R. Augustine Ripa, Ropes Gray,. & Board of Medicine of the Florida Depart- LLP, DC, Washington, Kainen, Dennis G. “State”), ment of Health (collectively, the Weisberg Mark, PL, Lucas, Kainen Hal M. appeal from the District grant Court’s Lucas, P.A., Hal Mullins, M. Edward M. summary judgment injunction and an Davis, Miami, FL, Astigarraga for Plain- group favor of a of physicians physi- tiffs-Appellees. cian-advocacy groups (collectively, “Plain- tiffs”) enjoining enforcement of Florida’s Vail, Jolly E. Jason Peterson & Truek- (the “Act”) Firearm Privacy Owners Act1 enbrod, PA, Winsor, Bondi, Allen C. Pam on First and Fourteenth Amendment Osterhaus, Timothy David Attorney Gen- grounds. Office, Tallahassee, FL, eral’s for Defen-
dants-Appellants. The Act protect patient privacy seeks to by restricting irrelevant Caso, inquiry and rec-
Anthony T. Chapman Univ. School Law, CA, ord-keeping by physicians Orange, Bryan H. the sensitive Heckenlive- Olsen, Tolies & ly, Munger LLP, issue of firearm ownership by prohib- San Francisco, CA, Levenstein, Harry iting Richard harassment and discrimination on the & Levenstein Sopko PA, Stuart, Kramer basis of ownership. firearm The Act does FL, Patterson, Cooper, Charles J. Peter A. prevent physicians from speaking with * (codified Coogler, Honorable L. Scott United States 1. 2011 Fla. Laws 112 at Fla. Stat. Judge 381.026, 456.072, 790.338). District for the Northern District of §§ Alabama, sitting by designation. *9 disclosed, information having from generally. Nor firearms about
patients inadvertently. deliberately whether or record- specific inquiry it prohibit does important a but hole The Act closes small a firearm-owner- patient’s keeping about larger patient-privacy-protec- in Florida’s determines when ship status understanding of tion scheme. Given this the circumstances faith, in based good Act, light longstanding in case, that such informa- patient’s of that authority of States to define the bound- patient’s medical tion is relevant practice, we hold good aries of medical safety of others. or the safety, care or is, face, permissible Act on its a that the traditionally physi- accorded Society has Physicians physician speech. restriction degree of deference due high a cians been-— n always free —as have remain knowledge, pedi- educational superior their rights as their First Amendment to assert “charismatic prestige, and gree, position of any defense in actions an affirmative “symbolic their resulting from authority,” not, by But brought against them. we will and death.” conquerors of disease role as Act, effectively hand striking down the A Amendment Toward First Berg, Paula a declaration that such defense Plaintiffs Discourse and Doctor-Patient Theory of will be successful. Medical to Receive Unbiased Right the District Accordingly, we reverse (1994). Advice, 201, 226 74 B.U. L.Rev. judgment in grant summary Court’s in the apex its deference reaches This Plaintiffs, injunc- and vacate the favor patients are room where examination against tion enforcement of the Act. Pa- powerlessness. relative position of physi- in the their trust place tients must I. physi- and submit to guidance cians’ Rick June Florida Governor On authority. cians’ Act law. The Act signed Scott into authority great comes great this With 790.338, § entitled created Fla. Stat. patients, society protect To responsibility. firearms; concerning privacy “Medical upon physicians certain long imposed has prohibitions; penalties; exceptions,” and that define the and restrictions duties Florida Patient’s Bill of amended the keep- care. In good medical boundaries Fla. Rights Responsibilities, Stat. tradition, passed the State ing with this 381.026, § to include several of the same commonsense Act codifies the the Act. The Fla. provisions. The Act also amended care good medical does conclusion 456.072, for dis- Stat. entitled “Grounds record-keeping regard- require inquiry enforcement,” pro- cipline; penalties; unnecessary pa- to a ing when firearms for violation disciplinary vide for measures in- not when that especially tient’s care— legislature passed of the Act. The Florida such a record-keeping constitutes quiry or response complaints the Act in upon patient priva- intrusion substantial personnel that medical were constituents care never re- cy good medical —and asking questions regarding unwelcome or harassment of quires the discrimination ownership, and that constituents firearm firearm owners. on ac- faced harassment or discrimination so, important an plays ques- In the Act to answer such doing count of their refusal as fire- gets patient’s simply what into a tions or due to their status protecting role record, arm owners.2 thereby protecting any kept firearms in her widely publicized incident mother whether she example, 2. For in a Florida, Ocala, question pediatri- Because she felt that the place home. that took cian, visit, privacy, the patient's an invasion of her during constituted a routine asked *10 provides, part, patient family The Act relevant that whether a or their owns firearms, practitioner unless the or facility practitioners licensed healthcare and facili- in good believes faith that the “information (1) “may intentionally ties not enter” infor- patient’s is relevant to the medical care or concerning patient’s ownership mation a of id. others,” safety, safety or the of patient’s into the medical record firearms (3) 790.338(2); § “may not discriminate” practitioner that the knows is “not relevant against patient a on the basis of firearm patient’s safety, to the medical care or or id. (4) ownership, 790.338(5); § and id. (2) others,” 790.338(1); § safety unnecessarily “should refrain from harass- right a respect patient’s privacy “shall patient about firearm ownership,” id. a ing inquiring and should refrain” from as to 790.338(6).3 § pediatrician facility mother refused to answer. The or a health care licensed under their, relationship chapter may intentionally any then terminated and ad enter days concerning vised the mother that she had 30 to find disclosed information firearm ownership patient’s a new & into the medical doctor. Fla. H.R. Comm. on Health record Servs., (2011) practitioner if Analysis knows that such Human H.B. 155 Staff informa- Hiers, 2011); patient’s (Apr. Family tion is not relevant to the see also Fred medical safety, safety care or tangle or the of others. pediatrician gun question, and over (2) StarBanner, practitioner A health care licensed July http://www. Ocala chapter facility under 456 or a health care ocala.com/article/20100724/articles/7241001. chapter respect licensed under 395 shall a incident, physicians In another refused to patient's right privacy and should refrain provide nine-year-old care to a “be- medical making inquiry asking a written cause wanted to know if child's [the questions concerning ownership of a family] had a in their home.” Audio firearm by patient by firearm or ammunition Regular CD: Session Senate Floor Debate on family patient, pres- a member of the or the by (Apr. HB held the Florida Senate 27- private ence of a firearm in a home or other 28, 2011) (remarks Evers) (on at 26:32 of Sen. patient family domicile of the or a member file with Florida Senate Office of the Secre- patient. Notwithstanding provi- of the this tary). example, legislator In a another stated sion, practitioner a health care or health that, during appointment daugh- an with his facility good care that in faith believes that ter, pediatrician legislator a asked that the patient’s this information is relevant to the gun remove his from his home. Audio CD: safety, safety medical care or or the of oth- Regular Session House Floor Debate on HB ers, may make such a verbal or written by Representa- held the Florida House of inquiry. 26, 2011) (remarks (Apr. Rep. tives at 26:20 Artiles) (on Repre- file with Florida House of (5) practitioner A health care licensed Clerk). legis- sentatives Office of the Another chapter facility under 456 or a health care reported complaint lator a from a constituent chapter under licensed not dis- provider falsely that a healthcare told him against patient solely a criminate based disclosing ownership firearm was a Med- upon patient’s exercise of the constitu- (remarks requirement. icaid Id. at 13:40 right possess tional to own and firearms or Brodeur). Rep. legislator relayed That also ammunition. complaint separated about a mother who was (6) practitioner A health care licensed from her children while medical staff asked chapter facility under 456 or a health care the children whether the mother owned fire- chapter respect licensed under 395 shall arms. Id. patient's legal right possess to own or Further incidents are recounted in a Joint firearm and should refrain from unneces- Undisputed Statement of Facts filed sarily harassing about firearm parties District Court below. Wollsch ownership during an examination.... Farmer, laeger v. No. 1:11-CV-22026 § Fla. Stat. 790.338. (S.D.Fla. 2011), Nov. Doc. 87. provisions The Act related also contains challenged provisions 3. The full text of the are concerning emergency personnel medical as follows: companies, affirming right insurance practitioner A health patients physician ques- care licensed to decline answer tions, chapter affirming under [of the Florida that the Act does not alter Statutes] discrimination, provisions harassment of the any provisions Violation facially the First and disciplinary ac of the Act violate grounds Act constitutes 456.072(2). § Fla. Stat. Fourteenth Amendments the United tion under 456.072(l)(nn). Furthermore, contended “[viola Constitution. Plaintiffs States " (1)- unconstitutional, of subsections an provisions imposes that the Act tions of *11 disciplinary for ac grounds speech, restriction on constitute content-based 456.072(2) §§ overbroad, and unconstitutionally vague. ] Stat. [Fla. tion under and 790.338(8). Thus, § Fla. 395.1055.” Stat. 14, 2011, that September finding On Florida Medicine of the if the Board of likely succeed on the Plaintiffs were to (the “Board”) finds of Health Department merits, preliminarily District Court en- Act, physician that a has violated joined inquiry, enforcement of the record- in measures disciplinary faces physician discrimination, keeping, and harassment fine, practice, re cluding a restriction Act, provisions together with fees, or probation, suspension and turn of providing discipline physi- for provisions Fla. their medical license. revocation of Wollschlaeger who violate the Act. v. cians 456.072(2). culmi investigation § An Stat. Farmer, F.Supp.2d may action be initi nating disciplinary (S.D.Fla.2011). by Depart against physician a ated 2, 2012, per On June the District Court by a triggered ment of Health in manently enjoined enforcement of the § Fla. complaint. citizen’s Stat. 456.073. discrimination, and quiry, record-keeping, 2, 2011, meeting of The minutes of a June togeth provisions harassment the Act— Committee of the Rules/Legislative disciplinary provi the related er with prepared that the Board is Board indicate for holding, on cross motions sum sions— disciplinary proceedings against initiate to provisions that all mary judgment, four Act, stating a who violates the Amendment, facially violated the First and' determined [has] that “the Committee record-keeping, inquiry, violation of falls under [that] [the Act] Act provisions of the were void harassment comply legal obligation with a failure to Farmer, vagueness. Wollschlaeger disciplinary guidelines for and the current (S.D.Fla. F.Supp.2d 1267-69 Fla. Bd. apply.” would this violation Comm., Rules/Legislative 2012). Meet Medicine (Jun. 2, 2011), at
ing Report, at 3 available The District Court held that Plaintiffs http://wwlO.doh.state.fl.us/pub/medicine/ standing to Plaintiffs had sue because Agenda_Info/Public_Information/Public_ engaging self-censorship were to avoid Minutes/2011/Committees/R-L/060211_ action, which consti- potential disciplinary Minutes.pdf. injury-in-fact that was cognizable tuted fairly to the Act and redressable traceable days four after Gover-
On June by injunction. Id. at 1258-59. The Dis- law, the Act into Plaintiffs signed nor Scott trict Court also held that Plaintiffs’ claims § seeking filed a U.S.C. 1983 action noting delayed review ripe, were declaratory injunctive against relief Plaintiffs, who hardship would “cause the State in the United States District Florida, engage continue to self-censor- Court for the Southern District of would development that further factual alleging inquiry, record-keeping, ship,” that the held, provisions apply existing regarding physician's do not law authori- because these 790.338(3), regulate any patients. physicians or do not conduct zation to choose Id. (4), (7). physicians, standing to chal- appear challenge Plaintiffs lack Plaintiffs do not and, lenge provisions, the District Court them. these discrimination, unnecessary. record-keeping, of the issues was Id. at and harass- provisions ment Act pass could not constitutional muster. Id. 1265-67. merits, Turning to the the District Court The District Court found that the State imposed physicians Act held provide any had failed to content-based restriction of on the evidence that the at 1261. The subject of firearms. Id. confidentiality of information regarding rejected argu- District the State’s Court patients’ risk, firearm ownership was at permis- ment that the Act “constitute[s] noting patient may that a simply decline to regulation professional speech sible information, provide such and that state occupational imposed conduct that a mere pertaining and federal laws to the confi- speech.” incidental burden on Id. at 1262. dentiality of provide medical records ade- that, The District Court noted unlike the quate protection patients. Id. at 1267. *12 Act, provisions regulations of the “[s]uch regard regulation to the With of the medi- govern practice profes- the access or of cal profession, the District Court found sion; they prohibit not or truth- do burden that the Act lacked specificity,” “narrow ful, non-misleading speech scope within the directly because the Act targets speech profession.” of the Id. merely imposing rather than an incidental The District Court then assessed the burden on at speech. Id. 1266-67 (quota- in passing State’s asserted interests omitted). reasons, tion marks For similar acknowledged Act. The District Court that the District Court further found that the protecting has an in its State interest Act is not the least restrictive means of right citizens’ to keep Second Amendment achieving the State’s interests. Id. at arms, right and bear but found that such a Thus, 1267. the District Court held that is “irrelevant” to the Act and therefore is tip significantly the “balance of interests in legitimate compelling not “a or interest for safeguarding favor of practitioners’ ability it.” Id. at 1264. The District Court found speak freely patients.” to their Id. that, because the acted on State the basis purely pro- of anecdotal information and The District Court also held that vided no evidence discrimination or inquiry, record-keeping, and harassment ownership harassment based on firearm Act provisions of the were unconstitution- pervasive, legiti- the State does not have a ally vague. regard Id. at 1267-69. With in compelling protecting mate interest inquiry to the and record-keeping provi- receipt its citizens “from barriers to the sions, the District Court found that arising medical care from discrimi- [such] provide “relevance standard” failed to suf- (quotation nation or harassment.” Id. guidance ficient as to what conduct the Act omitted). However, marks the District at prohibits. regard Id. 1268. With to the legitimate— Court found that Florida has provision, harassment the District Court perhaps compelling interests, but not “in — noted that the term “harass” has an ordi- protecting patients’ privacy regarding clear, nary readily meaning but their firearm or use” in ownership and regulation ‘unnecessary professions. Id. constitutes harass- “[w]hat anyone’s guess.” ment’ is left to Id. at Balancing physicians’ speech rights free that it 1268-69. The District Codrt noted in against protecting the State’s interests argu- to address Plaintiffs’ did need privacy regulating the and medical ment that the Act is overbroad because held that— profession, the District Court doing change so would not the outcome. regardless scrutiny of whether strict applied- inquiry, some lesser standard Id. at 1270 n. 7. —the however, independent an ex concluding the we conduct Thus, District Court — record, subjecting the Act are severa- amination of the whole remaining provisions “ for sum- findings Plaintiffs’ motion ‘constitu the District Court’s granted ble-— mary judgment, and granted part and “that facts’ ”—those facts involve tional motion for sum- the State’s part denied took the chal [defendant] reasons the According- Id. at 1270. mary judgment.4 action”—to de novo review. ACLU lenged en- permanently Court ly, Bd., the District Fla., Cty. Inc. v. Miami-Dade Sch. enforcing the record- joined Cir.2009). from (11th the State 557 F.3d We harassment, and discrim- inquiry, keeping, concerning questions review de novo also Act, 790.338(1), § provisions ination subject-matter jurisdiction, such our (6), (2), (5), enforcing and Basham, standing ripeness. Elend 790.338(8), provided extent that § to the (11th Cir.2006). 1199, 1204 471 F.3d 790.338(1) (2) con- § that violations of action, and III. disciplinary for grounds stitute 456.072(l)(nn), pro: that it § to the extent begin by taking up the We issue 790.338(1), (2), violations of vided that justiciability. The District Court held (6) disciplin- grounds constitute standing Plaintiffs had to sue because ary action. Id. self-censorship, which engaging were timely ap- the State July
On cognizable injury-in-fact fair- constituted a judgment. We pealed the District Court’s Act and ly traceable to the redressable *13 to 28 U.S.C. jurisdiction pursuant have at injunction. F.Supp.2d 880 1258-59. §§ and 1291. 1331 this error The State contends that was prohibit physi- because the Act does not
II.
asking patients
cians from
about firearm
grant
a district court’s
review
We
safety
ownership, providing firearm
coun-
novo. Thomas
summary judgment
de
recording
concerning
information
seling,
Inc.,
1361,
506
Lighting,
F.3d
Cooper
ownership. The State
patients’ firearm
Cir.2007).
(11th
judg
“Summary
1363
may engage in such
argues
physicians
that
gen
when ‘there is no
appropriate
ment is
patients’
to
conduct when
is relevant
fact and ...
of material
uine issue
relevant,
care,
the Act
and even when not
judgment
a
as a
party is entitled to
moving
that
merely suggests
physicians “should
”
(alteration
original)
in
Id.
matter of law.’
inquiring as to firearm own-
refrain” from
56(c)).
genuine
A
(quoting Fed.R.Civ.P.
790.338(2).
Fla.
Such hor-
ership.
Stat.
“if
evi
material fact exists
issue of
tatory language,
argues,
the State
does not
jury
a
that
reasonable
could
dence is such
physicians
constitute a mandate that
not
nonmoving party.”
a verdict for the
return
Thus,
inquire.
argues
the State
that be-
Real
v. Four Parcels
United States
actually
in fact
cause the Act does not
(11th Cir.1991)
1428,
F.2d
Prop., 941
Plaintiffs wish to en-
prohibit the conduct
omitted).
marks
(quotation
in,
standing
Plaintiffs lack
to chal-
gage
they have not dem-
lenge the Act because
legal
a district court’s
We review
Moreover,
injury-in-fact.
onstrated
ordinarily
and
re
de novo
determinations
obligation
have an
to read
argues,
State
we
findings for clear error.
view its factual
Amendment,
a
recommendation that
the Act as mere
In the context of the First
(4), (7),
790.338(3),
finding
physicians, §
granted the State’s mo-
4. The District Court
challenge
respect
standing to
these
summary judgment with
to
Plaintiffs lacked
tion for
Wollschlaeger,
F.Supp.2d
provisions.
at
apply to
provisions
of the Act that neither
by
practitioners
regulate any conduct
nor
inquiry
speech
theoretically
from irrelevant
could
physicians refrain
raise a First
firearms,
record-keeping
about
in or- Amendment defense.
der to construe the Act as valid.
mounting
In
a
challenge
facial
to the
Act, however,
sought
Plaintiffs
a First
that the
We find
District Court
any
Amendment
brought
defense
action
properly held that Plaintiffs’ claims are
against
a
speech
based on
tar-
justiciable.
standing,
In order to have
“a
geted by the Act. The State contends that
present
injury
claimant must
an
only proper
vehicle for Plaintiffs’ First
concrete, particularized, and actual or im
Amendment
proceeding
defense is
live
minent; fairly traceable to the defendant’s
brought
words,
under the Act. In other
behavior;
challenged
likely
to be re
arguing that
challenge
Plaintiffs’ facial
ruling.”
dressed
a favorable
Davis v.
justiciable,
saying
the State is
FEC,
2759,
wait
challenge
Plaintiffs must
the Act
(2008).
However,
At the we note that Plaintiffs’ where rights First Amendment are in volved, challenge First Amendment to the Act lest free be chilled even equivalent be viewed as the functional regulation before the law is enforced.” argument Bar, of a First Amendment raised as Harrell v. The Fla. 608 F.3d (11th Cir.2010) hypothetical an affirmative defense (citing Hallandale brought against physician asking ease Fighters 'l Fire Local v. City Prof questions (11th irrelevant about firearms con- Hallandale, 922 F.2d Cir. trary good practice. physi- 1991)). medical A *14 cian could in raise such a defense a disci- alleged injury Plaintiffs’ sole is self-
plinary proceeding brought under the Act censorship, may cognizable which a in be malpractice for such conduct or in a action. jury-in-fact standing purposes. for See id. a example, patient For could file a lawsuit (“[I]t is well-established that ‘an actual alleging physician that a mal- committed injury plaintiff can exist when the is chilled practice by unnecessarily harassing the pa- exercising right expres from her to free tient firearm ownership just about as a — in forgoes expression sion or order to patient potentially could file a al- lawsuit ” consequences.’ (quot avoid enforcement leging physician malprac- that a committed Cole, ing Pittman v. 267 F.3d by unnecessarily harassing tice (11th Cir.2001))). any topic. physician about other The cognizable To establish a self- to purportedly could choose admit to the censorship injury purposes for the of a harassing speech plead and the First claim, defense, plaintiff a as an in First Amendment “must Amendment affirmative that, rejection that show as a result of his desired ex contending effect the court’s (1) pression, prose of the affirmative defense would he was threatened with constitute (3) cution; prosecution likely; action in is state violation of the Constitution. Indeed, Act, leaving prosecution.” aside the a there is a credible threat of omitted). facing malpractice liability (quotation a marks If for wide Id. professional activity involving plaintiff proceeds swath of a under the credible- in example, poisonous must chemicals prong, he dem- threat-of-prosecution home, alcohol, tobacco, “[Fjirst, swimming and seriously that he wishes onstrate: Act, Plaintiffs pools). passage After of the that is at least engage expression law, practice have curtailed or eliminated this by pertinent arguably forbidden facing discipline.5 for fear of second, there is at least some and challenged probability minimal Plaintiffs have established that Id. if rules will be enforced violated.” they engage wish to conduct that is at citations, quotation and marks (emphasis, arguably least forbidden the Act. In omitted). challenged “If a law or rule was medicine, practice preventive their enacted, au- enforcing or if the recently questions wish to ask and record Plaintiffs challenged law or thority defending a mat regarding information firearms as court, an intent to enforce the rule rule a making particu ter of routine —without Id. at 1257. may be inferred.” larized determination of relevance —which that, as of the explain part Plaintiffs implies inquiry that some such and recor- care, preventive physi- some practice of will not be to the health dation relevant routinely patients they ask whether cians safety patients and or others and thus verbally own firearms —either or via prohibited by would the Act. The Act screening questionnaire provide enacted, fire- recently was and the State —and counseling, larger it, safety part defending arm so we infer that there is battery counseling probability and re- Act questions at least some will Thus, safety (including, health and risks be enforced if violated.6 Plaintiffs garding Complaint lays specifics sage they good 5. Plaintiffs' out the of the Act because believe in practices regarding physicians' individual questions that such are faith information inquiries safety counseling. However, For firearm patients’ relevant to their care. Act, example, prior passage of the Dr. they asking follow-up ques- now refrain from Wollschlaeger patients complete asked his patients parents tions when or their seem questions questionnaire that included re- when, upset by screening question the initial ownership, routinely garding firearm Act, prior passage they of the would not orally patients asked whether owned fire- Similarly, have refrained. Dr. Gutierrez con- present risk arms if other factors were —such patient questionnaire tinues to use a that in- home; patients as when had children in the question ownership, cludes a about firearm addiction, suffering depression, were asking any but has resolved to refrain from ideation; family suicidal had an unstable en- follow-up questions patient initially should vironment; or involved in a domestic- were appear topic. disinclined to discuss the Dr. provide safety violence situation'—to firearm previous practice Sack has ended his of be- counseling patient's tailored to the circum- ginning safety counseling by firearm his ask- Act, passage stances. After Dr. *15 ing patients they whether have a firearm in Wollschlaeger has removed the firearms-relat- However, the house. he has continued to questions questionnaire ed from his and no safety counseling, provide framing firearm it longer orally questions regarding asks firearm hypothetical pa- terms not tailored to his ownership part or discusses firearms as of his tients' individual circumstances. Dr. Fox-Le- preventive counseling. standard has, Act, passage vine since of the removed physicians party The other who are to this questions regarding ownership firearm practice asking ques- suit have limited their questionnaire her intake but continues to ad- providing counseling and tions about firearm patients safety, vise some about firearm fram- safety, varying degrees. still do but so to For Act, ing hypothetical example, prior her advice in terms. passage Dr. . routinely and Schaechter Dr. Schectman provide 6. We note that the Act does not for patients questions regarding asked their fire- penalties, only disciplinary criminal but ac- ownership arm and entered related informa- Nevertheless, standing by the for patients’ They tion Board. tion into their medical records. practice pas- purposes, disciplinary have continued this even after the threat of action stage, self-censor- cognizable have established a ultimate merits of Plaintiffs’ ar- gument, accept we that injury language for their First Amendment ship point Plaintiffs to is at arguably least claims.7 Thus, vague. Plaintiffs have established a Similarly, cogni to establish a cognizable self-censorship injury for their injury pur for the self-censorship zable vagueness claim. claim, plaintiff must poses vagueness they Plaintiffs claim that curtailed their “(1) seriously that: he wishes to show inquiry firearms counseling practices (2) [speech] arguably would [speak]; such Act, due to the and that they re- would rules, by the but the are be affected rules practices Thus, sume those but for the Act. they arguably vague apply at least self-censorship injury Plaintiffs’ fairly him; there is least a minimal Act, passage traceable to of the and re- enforced, probability that the rules will be by injunction. dressable Accordingly, they (empha if are violated.” Id. at 1254 standing. Plaintiffs have omitted). sis, footnote, and citations Nota argues The State that Plaintiffs existence, bly, imposition, “it is the not the standing lack regard inquiry with to the requirements that causes of standardless provision of provision the Act because that (alteration in injury.” original) Id. [the] Thus, in fact prohibits nothing at all. Fund, (quoting Legal CAMP Inc. v. Def. claims, State Plaintiffs’ fear that will Atlanta, (11th City F.3d face discipline objectively is not reason Cir.2006)). Ga., able. See Wilson v. State Bar of (“A above, For the reasons discussed (11th Cir.1998) F.3d party’s Plaintiffs have met the first and third subjective may fear that she prosecuted be prongs cognizable-injury of the test for engaging expressive for activity will not vagueness challenges. regard to the With injury be held to constitute an standing prong, argue second Plaintiffs is purposes unless that fear objectively inquiries unclear routine whether and rec reasonable.”). Under the proposed State’s firearms, ord-keeping regarding made as construction, merely, the Act recommends part practice preventive medicine physicians “should refrain” from ask and not on patients’ particularized based ing questions about firearms unless rele circumstances, qualify as “relevant” to vant, hortatory language and such does not safety. They health and argue also speech. constitute a bar The State law does define the terms “unnecessar points out that the Executive Director of “discriminate,” ily harassing” leaving posted the Board stated in a to the letter — physicians guidance without as to what shortly Board’s website after Plaintiffs prohibits physi conduct the Act and when filed suit—that the Board does not inter may subject cians for con discipline pret inquiry provision prohibition, as a (contra patients may unpredictably duct deem ob but rather as a recommendation jectionable. determining, Without at this dicting a letter the Executive Director had Bar, ular, 790.338(5) (6), may prohibit be sufficient. See Harrell v. The Fla. conduct (11th Cir.2010) speech. 608 F.3d involve little to no Never- theless, (finding an.attorney standing challenge self-censorship had claim Plaintiffs as a *16 attorney advertising challenged the state bar’s rules when provisions result of all four of the consequence noncompliance challenged provisions regulate the for was dis Act. As all four action, disbarment). ciplinary arguably speech, such as conduct involves this is that standing purposes. sufficient for We need course, not, acknowledge 7. We that the of evaluate the merits of these harassment provisions partic- standing stage. discrimination of the Act in claims at the 1176 provision physicians ing” challenge Florida to of the For- mailed to
previously Accordingly, Intelligence the Act of 1978 opposite). eign the Surveillance stating contends, choosing threat to based “by expenditures there is no credible make State inquiry plain- the regard hypothetical with to future harm” where of enforcement speculate merely government tiffs that the provision. communications, target their and so will disagree. provide Laws that We product the costs incurred were in of viola action case disciplinary for surveillance). fear generalized their generally the Act—should as tion—such Moreover, we note that the Board has hortatory. Compare interpreted as not be consistent that the position not been in its Sec’y Affairs, 312 v. Veterans Liesegang inquiry provision hortatory, is as indicated (Fed.Cir.2002) (“In 1368, the 1377 F.3d by the Executive Director’s first letter for noneom- any consequences absence stating contrary. the The State is also are at timing provisions pliance, [a law’s] in its of the interpretation inconsistent mandatory.”), rather than precatory best language “should refrain” in its briefs. Kornstein, 230 F.3d Kittay v. with instance, For characterizes repeatedly Cir.2000) (2d (noting attorney that n. 3 538 in language provi identical the harassment mandatory rules in char disciplinary “are a mandatory prohibition sion of the Act as they “state the minimum acter” because unnecessary It against harassment. also lawyer can below which no level of conduct inquiry the as provision describes itself being subject disciplinary to fall without ... inquiries,” “proscribing] id. omitted)), and (quotation marks action” conduct,” “prohibiting] id. at 39. Wil Born, Inc., F.2d 391- Cf. v. 792 Edwards son, (holding F.3d at that 1428-29 Cir.1986) (3d attorney that dis (noting attorneys standing disbarred lacked to mandatory” “are because rules ciplinary that challenge ways rules limit the subject vio attorneys discipline are for attorneys represent which disbarred can them). Thus, despite the Board’s lating public to the themselves or have contact as Executive Di position —insofar where with clients “the State Bar ha[d] represent it—that in letters rector’s repeatedly consistently posi taken the constitutes a recommenda quiry provision that no [challenged tion rules] ha[d] mandate, than a the fact that tion rather application to of scenarios the types action provides disciplinary the Act attorneys disbarred posed”). have against Plaintiffs in case of a violation that, that Plaintiffs’ fear that is it provides controlling evidence Neither as the contends, discipline objectively face rea they may Supreme State the Florida Notably, standing purposes. interpreted sonable for Court term “should” as generalized disciplin fear of hortatory this is not reviewing Florida’s Code action, apprehen ary specific but rather a Conduct. In Judicial See re Code Judi Conduct, (Fla. specific group physicians— sion cial So.2d — 1994). targets. interpretation the Act But whose conduct Such is irrelevant cf. Amnesty determining Int’l what Clapper legis effect the Florida USA -, give 185 L.Ed.2d language lature intended Thus, (holding attorneys and var they may Act. Plaintiffs’ fear labor, rights, legal, ious human and media under discipline inquiry provision face organizations objectively cannot “manufacture stand- reasonable.8 accept argument meaningless portion provision 8. We do not al- Plaintiffs' construing lowing physicians inquiry provision’s "should re- make fire- nevertheless language hortatory inquiries doing render when frain” would arm so would be rele- *17 argues The State also that Plain scrutiny. fails—strict Plaintiffs also assert standing lack regard tiffs with to the rec overbroad; that is, Act is they ord-keeping provision of the Act because it claim that even if regulation the Act’s proscribes only entry of firearm infor speech is constitutional in a limited num- mation that is not relevant medical care situations, ber of proscribes nonetheless safety, injury or and Plaintiffs claim no a substantial legitimate amount of speech, arising from a wish to record irrelevant Second, and must fall. Plaintiffs argue However, information. Plaintiffs claim an that the Act violates procedural their injury practice preventive to their medi rights under the Due Process Clause of cine arising being from not free to record Amendment, the Fourteenth in that every the firearm information of patient as Act’s terms vague are so that they fail to a matter of course. perhaps the Some— put person ordinary intelligence on majority these records will therefore —of notice as to what Act prohibits. be irrelevant to the care and safety begin We will with the latter contention Thus, patients and others. the State’s ar and then move to the First Amendment gument unavailing: is Plaintiffs claim an challenges. Brooks, Borgner See injury arising, part, from a desire (11th Cir.2002) (“Before F.3d record irrelevant information. analyzing challenged [the state un- statute] Accordingly, we find that the District der the [appropriate level of First Amend- properly Court held that Plaintiffs have scrutiny], ment we must first determine standing to challenge the Act. We also find statute, whole, whether the taken as a is that the properly District Court held that clear as far required as what is and what is ripe adjudication.9 Plaintiffs’ claims are prohibited.”). IV. A. Now for the merits of Plaintiffs’ claims. Under void-for-vague “[t]he Plaintiffs’ facial attacks on the Act arise doctrine[,] ness ... ‘a statute which either separate under two provisions of the Con- forbids or requires doing of an act in First, stitution. contend vague [persons] terms so of common 790.338(1), (2), (5), record- —the intelligence necessarily guess must at its keeping, inquiry, discrimination, meaning and differ application, as to its provisions harassment of the Act10—im- violates the first essential process of due permissibly upon trench their rights under ” Foods, view, Specialty law.’ Harris v. Mexican First Amendment. In their Inc., (11th Cir.2009) Act is content-based restriction on F.3d and, such, (third subject to—and original) alteration in (quoting Rob less, safety. vant to Corley care and See inquiry v. United we find that the clause is not a States, recommendation, mere rejection and our (2009) ("[A] 173 L.Ed.2d argument statute Plaintiffs’ does not alter the result given should be standing construed so that effect inquiry. of our provisions, all part its so that no will be inoperative superfluous, insignifi- void 9. The appeal State does not renew on its omitted)). (quotation cant.” argument marks Even ripe. if that Plaintiffs’ claims are not inquiry provision we were to construe the as a physicians mere recommendation that challenge refrain 10. Plaintiffs’ is limited to these four firearms, inquiring about perfectly provisions. it is Accordingly, unless context de- otherwise, legislature may reasonable that wish to mands future references to the Act withdraw this recommendation only should the in- should be understood to refer to these quiry given be relevant provisions. case. Neverthe- *18 1178 we ad 609, 629, challenged provisions, after which 104 Jaycees, 468 U.S.
erts v. U.S.
(1984)).
3244, 3256,
specific
(citation omitted); Grayned see v. also 790.338(1). Fla. safety of others.” Stat. 104, 110, Rockford, 408 U.S. 92 City of points regard three salient with We note (1972) L.Ed.2d 222 S.Ct. First, provision. to this the substantive (“Condemned words, to the use of we can in prohibition contained the first clause—- certainty in our expect never mathematical “intentionally not physician that a challenged language.”). When statute is any concerning disclosed information enter enforcement, prior to vagueness ownership,” firearm id.—is conditioned allege litigants must are “chilled in relevancy requirement the second constitutionally protected engaging If, English Dictionary Oxford clause. See activity.” City See Bankshot Billiards (2015) conjunction “if’ as a (defining (11th Ocala, F.3d Cir. sup a clause of condition or “introduc[es] 2011) (“[P]re-enforcement provides review prohibition ap The substantive position”). law-abiding citizens with a middle road in the plies only when the condition second facing prosecution refraining between is, physician met—that when a clause is conduct.”). from otherwise constitutional concerning that information firearm knows Still, possible vagueness about “speculation patient’s is not relevant to the ownership situations not before the hypothetical safety, safety care or or the medical support a facial attack on a Court will not Logically, physician does others. when surely it is statute when valid the vast concerning not know that information fire majority applications.” of its intended Colorado, 703, 733, pa ownership 120 arm is irrelevant Hill v. U.S. safety safety, L.Ed.2d 597 medical care or or the S.Ct. tient’s (citation omitted). quotation others, marks prohibition apply. does not Second, relatedly, the statute is un begin by setting forth our
We high degree of certain- require of each of the written to derstanding meaning of the part subject issue; on the ty point as to non-relevance pertinent prohibition Relevant, ef- specified thing.” before takes to a Oxford terms, By record-keeping (2015). its English fect. Dictionary agree We physicians from enter- provision prohibits relevancy the Act’s requirement does *19 concerning information ing firearm owner- neat, have a definition; one-size-fits-all only physician when the ship has knowl- rather, relevancy necessarily is determined edge of that information’s irrelevance to case-by-case is, on a basis. That whether safety. Any care or mental medical state information is related to the matter at regarding irrelevance that does rise to depends hand entirely specifics on the of knowledge the level of not trigger would the matter at hand. A reading that infor- prohibition. the mation about firearm-ownership is rele- would, every indeed, vant in case render course, Finally, prohibition of if the ap- the record-keeping provision superfluous, plies only physician when a knows the but problem easily this is by avoided irrelevant, information to be then the criti- adhering to a plain-meaning construction cal meaning relevancy issue is the of the relevancy determination, of as an ad hoc requirement. argue Plaintiffs that the requiring physicians to base their calcula- provision vague pro- is because it does not tion as to the relevancy patient’s of a vide them with sufficient notice as to when firearm-ownership particularized status on record-keeping regarding firearms is rele- patient. By information about the employ- safety. vant to care or medical Plaintiffs ing relevancy standard, a flexible the Act specify note that the Act does not whether provides physicians with the freedom to physician must make a particularized regarding record information firearm own- finding patient of relevance for each or ership whenever doing part so would be of physician’s general whether a belief practice good the of medicine. always firearms are relevant will suffice. They argue that also the Act does not Taking points these three together, we specify physician if a must believe that think record-keeping the provision stands firearm information is relevant at the time simple proposition for the physician inquiry of record-keeping, good- or if a may not record a patient’s firearm-owner- faith belief that the may information later ship status unless the physician believes (such practice become relevant as in the of particularized that —because of some infor- medicine) preventive require- satisfies the patient, mation about the individual that, ments of the Act. Plaintiffs contend example, that patient the is suicidal or has reading
because a that information about patient’s violent tendencies —the firearm- always firearms is relevant would render ownership pertains status patient’s the the Act meaningless, physicians reasonably safety, medical care or safety or the requires fear that the Act higher, some record-keeping others. The is provision unspecified level of relevance. sufficiently clear person that a of common intelligence guess need not as to what plain
We find that recourse to meaning prohibits. resolves the issue. See Johnson v. Gover Fla., (11th
nor 405 F.3d Cir.2005) (en banc) (“The step first in stat utory interpretation requires that courts inquiry provision phrased The apply plain meaning statutory of the slightly differently, but we think it is sub language ambiguous.”). unless it is stantially record-keeping “Rele similar to the vant” “[b]earing means on or provision practical connected terms of its effect. hand; closely with the matter in relating inquiry provision The physicians directs particularized of firearms on inquiry ownership or making a written refrain from Thus, patient. phy- information about concerning the owner- asking questions fire- inquiries make as to the sicians ammunition or a firearm ship of any pa- or all arm-ownership status family member of by a or patient tients, they do so with the long so in a of a firearm presence or the patient, specifics belief—based on good-faith other domicile home or private rel- inquiry case—that the patient’s family pa- member of the or a care or patient’s medical evant provision, this Notwithstanding tient. If, safety others. for ex- safety, or the good faith be- ... [physician] informa- seeks firearm ample, is relevant to that this information lieves agenda unrelated to personal tion to suit a safety, care or medical patient’s safety, he would not medical care others, may make such a safety *20 the “good-faith” inquiry, a and so making inquiry. verbal or written him to refrain from plainly Act directs 790.338(2). § Fla. Stat. inquiring. prohibition again, the substantive Here inqui- that the Accordingly, we conclude relevancy requirement, by a qualified is that a sufficiently is clear ry provision may physicians effectively providing intelligence need not person of common good faith they believe inquire whenever guess prohibits. as to what rele- ownership information is that firearm safety. Again, the care or vant to medical to the mental high a bar as sets provision Finally,11 provi harassment the necessary trigger prohibition: the state the same basic elements sion also contains any good-faith lack belief must physician a with a provisions, as the first two albeit relevancy of the information. to the provi harassment few modifications. The require physicians not does provision The “refrain from physicians directs sion of relevance before knowledge to have unnecessarily harassing a about as to only good-faith a but speaking, belief during an examination.” ownership firearm phrased this differ- Although is relevance. 790.338(6). § the record- Fla. Like Stat. record-keeping provision’s than the ently inquiry provisions, the harass keeping and inqui- think the we relevancy requirement, impose a flat ban provision ment does provisions form two record-keeping ry issue, qualifies rather speech on the but prohibitions coin. The the same sides of here, necessity require with a its ban — informa- a knows the apply physician when statute, of the ment. Under the terms if apply and do not tion to be irrelevant harassing physicians prohibited are good-faith belief that physician the has ownership only patients about firearm relevant. is information unnecessary. is when such harassment And, record-keeping provi- as with way pro- in which the harassment One key here. sion, relevancy clause is also previous provi- from the two vision differs assert that the term “rele- again Plaintiffs sions, however, regard is to the with above, we observed vague, vant” is but as triggers the substantive mental state context, simply means requirement imposing high this prohibition. Instead speech prohibiting base their calcula- physicians should bar before —re- of irrelevance or the quiring knowledge relevancy patient’s of a tion as to the result, address their As a we need not cross-appealed the Dis- ness. have not 11. Plaintiffs ‘'discrimina- argument that what constitutes holding that the discrimination trict Court’s 790.338(5), provision is unclear. vague- tion” under this provision, is not void for good-faith manifestly particularized of a belief of rele- ments turn on a absence by determination provision flips vance—the harassment this as to the formula, relatively high relevancy bar imposing of the to the medical care speech. safety patient, Harass- or of the permitting safety before or the ownership permit- firearm others. that link explic- ment about While is not made only necessary. when are not it in connection with necessity require- ted We ment, inversion, however, implication, this be- the clear given pat- troubled this below, tern, although, necessity as we discuss we is that requirement cause scenarios in which “harass- imagine object: can directed to the same the medical warranted, safety even advisa- care or might patient, safety ment” be or the ble, majority think that in the of of we others. cases, Imposing it will not be. a more express Plaintiffs concern that the rele- permitting standard before rec-
rigorous vancy hinge solely determination will on a inquiry might present ord-keeping particular patient’s subjective understand- question, more difficult we do not but ing “unnecessary of what constitutes inappropriate prerequisite think it as a to harassment,” result, and that as a permitting “harassing.” subjected liability discipline be
Finally,
necessity
arbitrary
we think that the
re
on an
basis.
this indeed
Were
case,
quirement,
record-keeping
like the
and in
the provision
likely
would
*21
Walters,
quiry provisions, when read in the context
invalid. See Conant v.
309 F.3d
whole,
(9th Cir.2002)
of the Act as a
also has the effect of
a
(holding
statute
a
requiring
particularized
providing
determination
for administrative action against
physician
physicians
engage
the
as to relevance. See
who
in
that “the
Co.,
Young v. Progressive
patient
Se. Ins.
believes to be a
recommendation
(Fla.2000) (“[A]ll
parts
marijuana”
So.2d
of a
the requisite
lacks
narrow
Amendment);
in
together
specificity
statute must be read
order to
under the First
“ ‘[wjhere
whole,”
Collins,
a
achieve
consistent
see also Thomas v.
possible,
give
courts must
effect to all
Act, provision the harassment to the to be irrelevant such information agenda an un- pursue to who wish sicians safety, or or the medical care patient’s safety. care or to medical related others; about firearm safety inquiry Court understood Although the District only physician the lacks ownership when “unnecessarily” proble- to be the modifier information is belief that good-faith in fact matic, The modifier disagree. we medical care or patient’s to the relevant chal- the freedom to physician allows a others; safety of and harass safety, or the is, patient regard- “harass” —a lenge—that only ownership firearm when ment about when, particular- under the' ing firearms necessary physician does not believe case, patient’s circumstances ized safety, patient’s medical care for safety necessary for health or doing so safety of others. reasons, might if find the patient even the record- Having determined unwelcome. For exam- advice physician’s provi- inquiry, and harassment keeping, suicidal, physician patient if a ple, clarity of sufficient conform sions are patient attempt persuade wish to hold process, of due we requirements home, patient’s from the firearms remove holding the District Court erred initially objects. So patient even if the vagueness. them void for physi- considers even if the safety health and ad- cian’s firearm-related harassing, the inclusion of the
vice to B. “unnecessarily” leaves room modifier Plaintiffs’ turn now to the first of We to deliver such advice when challenges. apply First Amendment We safety, care or consis- necessary to medical *22 only scrutiny to the Act First Amendment provisions. Act’s other The tent with the activity if it that falls within the regulates sufficiently clear provision is harassment protec- First Amendment’s ambit of the need intelligence that a of common person Therefore, analysis by begin tions. we our guess prohibits. as to what it issue: resolving necessary preliminary a by point, patients As a final we note that challenged provisions any whether of the subject physicians to themselves cannot significant “speech” a amount of implicate may complaint, discipline. Patients file a in the context that term is understood as triggers investigation by an the which of First Amendment law. Board, may malpractice a bring But, long a is action. so as good faith within the bound- operating First and Four Under pro- and good practice,
aries of
medical
is
Amendments,
prohibited
States are
teenth
viding only
safety
firearm
advice that
is
[any]
abridging
...
“mak[ing]
law
necessary, he need not fear
relevant and
Const,
speech.”
the freedom of
U.S.
at the hands of the Board or a
discipline
literal-
I.12“The First Amendment
money judgment in a court of law.
amend.
146, 150,
(1939);
ap-
L.Ed. 155
see also
prohibition is
S.Ct.
84
12. The First Amendment’s
296, 303,
Connecticut,
against
through the Four-
plied
the States
310 U.S.
60
Cantwell v.
900, 903,
(1940).
Clause.
teenth Amendment’s Due Process
The support State finds for this conduct) (second Shore, of noncommunicative proposition in Locke v. 634 F.3d (11th Cir.2011). Stuart, case, original); modification in Miller v. 1185 In that we said (11th Cir.1997) (hold 1376, governs that 117 F.3d 1382 practice “[a] statute the of an that a a occupation ing regula is not unconstitutional as state not insulate an abridgement right speech, speech of the to free tion of commercial from First provision discrimination by classifying simply review
Amendment
The
790.338(5),
profession
Act,
part
§
of the
if not a horse of a
speech
as
N.J.,
accountancy); King
color,
v. Governor
at least a steed of a
different
(3d Cir.2014)
216,
(reject
228-29
767 F.3d
provision prohibits
different shade. This
that verbal communica
argument
ing the
against
a
based
“discrimination]
when
are
“conduct”
tions become
patient’s
exercise of the
solely upon
services), cert.
professional
used
deliver
right
possess
to own and
constitutional
Christie,
King v.
575 U.S.
denied sub nom
or ammunition.” Id. Unlike the
firearms
2048,
-,
The harassment
of
sum,
In
we
conclude
while the dis-
Act,
790.338(6),
§
requires physicians
provision
crimination
a regulation
unnecessarily
harassing
“refrain
” professional conduct with merely an inci-
firearm
ownership....
about
speech,
dental effect on
and thus does not
v.
point
College
Plaintiffs
us
Saxe
State
Amendment,
District,
implicate the First
which
the rec-
Area School
stands
ord-keeping, inquiry,
proposition
categorical
pro-
is no
harassment
“[t]here
exception’
regulate
significant
‘harassment
to the First
visions do
amount of
”
speech
protected
Amendment’s free
clause.
240
speech. Accordingly, we must
(3d Cir.2001)
J.).
200,
(Alito,
F.3d
204
proceed
Of
to determine what level of scruti-
course, “non-expressive, physically harass
ny the First Amendment demands of these
entirely
ing conduct is
outside the ambit of
Lowe,
provisions.
230,
See
ly
e.g, Sny
offensive....”
Id. at
Not all
speech
restrictions on
are
443,
1207,
Phelps,
der v.
562
131
U.S.
S.Ct.
equal.
created
may
Restrictions
be con
(2011);
179
172
Brandenburg
L.Ed.2d
v.
tent-neutral or content-based. Content-
Ohio,
444,
1827,
395 U.S.
89 S.Ct.
based restrictions on
are restric
(1969).
L.Ed.2d 430
“appl[y]
particular
tions that
speech be
topic
cause of the
discussed
the idea or
reading
A natural
of the provi
Gilbert,
message expressed.” Reed v. Town
sion
pri
would seem to indicate that it is
iz.,
U.S. -, -,
135 S.Ct.
harassment, Ar
marily concerned with verbal
(2015).
2218, 2227,
Huggins
medicine,
practice
furtherance of the
of
(disal-
(Colo.App.1997)
952 P.2d
one,
implicated:
but two state interests are
grounds
First Amendment
lowing on
regulation
profession
protec-
of the
for the
against
claim
negligent-misrepresentation
public
regulation
tion of the
and
of the
suggesting that mer-
publicly
a dentist for
protection
pa-
for
of
relationship
the
the
are harmful
cury-amalgam fillings
and
society.
tient and the benefit of
Converse-
removed).
should be
ly,
physician speaks
public
when a
to the
Conversely, conversation between a
practice
on a matter irrelative to the
of
physician
patient
and a
about their mutu-
medicine, neither state interest adheres
al
of
fall in the latter cat-
golf
love
would
force; instead,
any special
with
the coun-
egory: speech
practice
unrelated to the
tervailing
physician’s
interests —the
inter-
of medicine but within the confines of a
in speaking freely
society’s
est
interest
relationship. A
physician patient
more
—
listening freely
to the fore.
—come
example
type
of this
of speech
sinister
aligns
This framework
with and illumi
intimidating
harassing
speech by
guidance
Supreme
nates the limited
the
See,
patient.
e.g.,
to a
In re
provided
professional speech.
Court has
Suspension or Revocation
License
of
Take,
A-2181-06T2,
example, promotional speech by
for
Singh, No.
2007 WL
(N.J.Super.Ct.App.Div.
professionals.
at *1
analysis, regula
Under our
implicate
profession
two lation of the medical
for
type
of this
the
tions
protection
public,
regulation
interests:
the state’s
primary
interest
fiduciary
relationship
protec-
public by regulating
protecting
tion
and the benefit of soci-
society’s
interest
profession,
ety. When one understands that both of
Notably, these
free flow of information.
primary
play
interests at
cut in favor
Supreme
precisely
are
the interests
cases,
government regulation
in such
analyzing reg
has found relevant to
Court
Supreme
Court’s succinct conclusion
professional advertising.
ulations of
See
regulation
that the
implicated
physi-
“the
Bd.
Pharm. v. Va. Citizens
Va. State
First Amendment rights”
cian[s’]
but sur-
Council, Inc.,
Consumer
scrutiny
vived some
heightened
level of
766-68,
1817, 1827, 1828-29, 48
*28
a
regulation
practice
“reasonable”
of
(1976)
the
(characterizing
L.Ed.2d 346
medicine makes more sense. Id.
countervailing
society’s
interests
as
the
brief
WTiile Court’s
treatment of this
“strong
in the free flow of com
interest
in Casey
provide
issue
does not
much in-
information,” and the
state’s
mercial
sight
analyze regulations
into how to
of
in
the
“strong
protecting
public
interest”
professional speech, why
the statute at
by maintaining “high professional stan
scrutiny,.
issue survived First Amendment
dards”); accord Bates v. State Bar of
holding helpful
is
insofar as it is consis-
Ariz.,
2691,
350, 364-79,
97 S.Ct.
U.S.
speech by
tent with our conclusion that
a
(1977);
2699-2707,
With to address the issue of the prepared advancing government now inter- compelling of First Amendment level appropriate Solantic, City Neptune est.” LLC v. speech. professional scrutiny accorded (11th Cir.2005). Beach, 410 F.3d
b.
parcel
cognita
Another
of terra
scrutiny
the level of
with which to evaluate
di
Supreme Court has never
The
regulations
speech by
professional
appropriate
level of
rectly addressed
public
promotion
profession.
of their
professional speech reg
scrutiny accorded
proceed
Supreme
must
from The
Court has noted that
this
therefore
ulations. We
First,
the unknown.
we
known to
type
“occurs
an area tradition
professionals speak on a
know that when
ally subject
government
regulation,”
practice
to the
of their
matter irrelative
and has therefore concluded that it war
any particular
outside
rela
profession and
protection
rants a lower level of
under the
professional
status as a
tionship, their
Ohralik,
First Amendment.
436 U.S. at
entirely
speech.
incidental to their
When
Correspondingly,
lates
in furtherance of the
we
to
it as such.
boundaries,
have
deep regulatory
the Act
fessions within their
cated
and that
First,
long recognized
part
power
roots.
courts have
of their
to protect
public
the
health,
authority
duty,
safety,
even —of States
to
and
the
other valid interests
—
professions
to
regulate
practice
power
the
have broad
to establish stan
against
licensing
the
the untrust
dards for
public
practitioners
regu
“shield[]
and
worthy,
incompetent,
irresponsi
lating
practice
of professions.”); Wat
Collins,
516,
Maryland,
son
ble.” Thomas v.
v.
173, 176,
U.S.
(1945)
646,
(1910) (“It
Moreover,
authority of
State
fiduciary context
given the
professionals,
fiduciary char-
relationships of a
regulate
occurs.
the former
within which
is,
anything,
if
law
the common
acter via
prin-
than
proposition
Supreme
venerable
Court’s
Broadly reading
more
any
regulatory
may suggest that
possesses
decision
the State
recent Reed
ciple that
includ-
See,
regulations,
all content-based
e.g., and
professions.
authority over
speech,
professional
commercial and
ing
Marbury, 91 U.S.
v.
Oil Co.
Twin-Lick
scrutiny.18
subjéet to
See
are now
strict
(“That
(1875)
587, 588-89,
L.Ed. 328
not, however,
14.
need
supra note
We
occu-
corporation
joint-stock
of a
director
a lesser
conclusively whether
determine
where
fiduciary relations
those
pies one of
applies
regulations
scrutiny
of
ever
form
beneficiary or
...
dealings
with
his
in this case
speech, because
professional
his
confided to
interest
whose
party
strict or
the same whether
the outcome is
courts,
by the
jealousy
care,
with
is viewed
supra
scrutiny applies. See
intermediate
grounds, is
slight
on
may be set aside
that,
apply
we next
part
IV.B.2. Given
morali-
on
soundest
a doctrine founded
scrutiny
Act.
to the
strict
clearest
has received the
ty, and which
others.”);
and in
in this court
recognition
Story,
Joseph
Commentaries
also
see
scrutiny requires that
Strict
at 235-36
Jurisprudence
Equity
acting
it is
to further
State show that
1886) (“In
(13th
...
which
[in
cases
ed.
governmental interest and
compelling
fiduciary relation between
is a
there
“narrowly tailored to
actions are
its
law,
prevent undue
in order to
parties,] the
Fed. Election
interest.”
achieve
confidence,
unlimited
advantage from the
Inc.,
Life,
Right
Comm’n Wisconsin
the rela-
affection,
duty
or sense
which
2652, 2664,
449, 464, 127
S.Ct.
creates, requires the utmost
naturally
tion
(2007).
The state bears
L.Ed.2d 329
...
in all transactions
faith
degree
good
on its
“heavy
justification”
based
burden
Blumstein,
any
If there is
mis-
Dunn v.
parties.
purposes.”
“asserted
between
of a 405 U.S.
any
concealment
representation,
(1972).
turn
to de
We
first
L.Ed.2d
fact,
just suspicion of arti-
any
material
compel
has a
termining whether Florida
influence,
Equity
undue
Courts
fice or
ling interest.
Tamar
generally
see
interpose____”);
will
Law,
Frankel,
79-99
Fiduciary
a.
government regula-
(tracing the roots
*31
four
of Florida asserts
The State
relations back to Hammu-
fiduciary
tion of
(1)
the
protection of
compelling interests:
rabi).
keep
to
and bear
right
Amendment
Second
Indeed,
the ease that
one could make
(2)
arms;
privacy
patients’
protection
type of
governing
laws
the
enacting
when
(3) elimination
to
of barriers
rights;
(4)
professional
speech with
quintessential
access;
prevention
and
healthcare
here, the State
of firearm
we are concerned
and harassment
which
discrimination
than
owners.19
regulatory leeway
has even more
1, 2015);
Pro
(W.D.Ky.
Contest
identify
at *5
Oct.
quiring
physicians to
them-
licensed
motions,
City
County
Fran
San
patients).
LLC
to their
selves as such
15-cv-00093,
cisco, Cal.,
2015 WL
No.
apply-
noting
18. It is worth
that lower courts
28, 2015).
4571564,
(N.D.Cal. July
at *4
apply to
ing Reed have found that it does not
(pre-
See,
reasons
the third and fourth
e.g., Chiropractors
19. We find
speech.
commercial
Educ.,
harassment and
Conway,
vention of discrimination
LLC v.
United
Research &
for
healthcare)
5822721,
3:15-CV-00556-GNS,
to be inherent-
ensuring
to
access
2015 WL
No.
ion)
begin,
To
the State’s
(holding
interest
that a free-speech restriction
regulating
practice
professions
election-day
solicitation is a compelling
interest
protection
public
merely
protects
of the
is not
because
the fundamen-
vote).
substantial,
right
tal
to
“compelling.” Goldfarb,
but
792,
U.S.
likely those
of
added).
(emphasis
in
finances.” Id.
were
sonal
silent,
patients
their
while
mained
vulnerability,
lacking
great
of
position
view,
logic
In
the
of Jones
our
up for themselves
fully stand
power to
the
right
that the
easily leads to the conclusion
note 26.
See
rights.
and their
infra
a firearm
in one’s status as
privacy
to
compelling
in-
Next,
asserts
the State
compelling.
and thus
owner is sacrosanct
gun
of
privacy
the
protecting
terest
in
otherwise,
argue
to
rely
Plaintiffs
on Jones
in
from inclusion
as such
owners’ status
only
argument.
undercuts their
but Jones
Supreme
The
their medical
records.
inter
privacy
maintain that the
Plaintiffs
in-
“recognized
privacy
long
[a]
has
Court
because, like
cannot be sacrosanct
est here
away
facts
from
keeping personal
in
terest
affiliation,
on firearm
information
party
v.
Dep’t
Justice
eye.” U.S.
public
subject to disclosure
ownership
already
of
Freedom
For
Comm.
Reporters
governments.
and federal
We
of
to the state
749, 769,
Press,
109 S.Ct.
here are
disagree.
rights
The
at issue
(1989).
Specifically,
L.Ed.2d
and cherished
indisputably more valued
in-
privacy interests
recognized
previously
in
society
privacy
than mere
American
even when some-
“limiting exposure”
clude
spe
affiliation. As the Court
party
one’s
“wholly private.” Id.
already is not
thing
Jones,
cifically
privacy
par
in
noted
omitted).
marks
(quotation
the same as “confiden
ty affiliation is not
Florida’s
tiality medical records.”
Id.
interests,
course, come
Privacy
the firearm owner
keeping
commitment to
privacy
An asserted
degrees.
varying
in
of its citizens out of their medi
ship status
being
a “com
the level
rises to
interest
then,
records,
exactly
type
cal
only when it can be said
interest
pelling”
compelling privacy
interest
sacrosanct
Demo
See Cal.
truly
“sacrosanct.”
to have contem
appears
Court
Jones
Jones, 530
Party v.
U.S.
cratic
plated.
2402, 2413,
Plaintiffs rights. See protect to abortion not der it does because narrowly tailored be 714, 716, 120 at 2488-89. at S.Ct. sen- U.S. on other speech from protect patients was not unconsti- that buffer zone (such use, ac- Just as drug sexual as topics sitive violence) apply not also when it did tutional because and because tivity, and domestic at a control purchased birth a woman from other patients protect not it does is not unconstitutional (such the Act pharmacy, as guns speech about sources to other areas apply it does not because accountants, clergy, lawyers, from inquiry. sensitive also argument is This gardeners). and First, for two reasons. easily disposed of that because further contend Plaintiffs by asked a doctor answering questions heavily regulated, ownership firearm questions to those the answers guns, about a to own firearm individuals who wish rec- medical patient’s part become infor- personal provide must considerable questions by other not so ord. This is State, Fla. see Stat. mation to the law by Florida prohibited are persons who firearm (requiring prospective § 790.065 regarding any sort of list creating personal range a wide buyers to submit Fla. Stat. 790.335. ownership. See gun background undergo information statute, prohibited are such lists In that check), qualms no should have patients used to harass they can be because their status as firearm revealing about address mo- As we will See id. Act profile. and thus the physicians, owners to informa- of what mentarily, protection Again, patient privacy. does not further record is crucial patient’s gets argument inapposite. tion into to be we find this Second, the Plain- as to some today’s may possess world. The fact that the State regarding other sensitive firearm argument its residents’ tiffs’ information about position conducting take no purpose while we inquiry, ownership areas of for the to utterly could ban irrele- immaterial legislature background checks is on whether history physicians should patient’s private into a sexual or not inquiry vant whether their topics, we have information for posited have access such or Plaintiffs’ other own, Al- medically purposes. irrelevant believing that such information no trouble may interests sometimes greater frequency. though privacy much with is relevant collect informa- yield to the State’s need to the fact that the law point, More to tion, the interest is so that does not mean into other sensi- inquiry prohibit does not will not still destroyed that individuals the Act’s discussion evidences tive areas of the same keep to wish to have reason protecting the identified narrow focus on private public from the in information right privacy interest: compelling Further, firearms large. since Amendment of one’s Second the exercise be- home without the legislature present did not make rights. That the owner, wish to be the Plaintiffs necessary ing expansive than the Act more than Colorado, more information gather even fatal. In Hill v. able .certainly not Moreover, Plaintiffs government.24 eight that an foot held Supreme Court working of the the actual again 100 feet mistake persons around within buffer zone IV.A, 2010) ("[W]e Amendment, agree with those who advocate supra part it can see First guide looking Amendment as a to the First to the Second Amendment be extended the Sec developing review for a standard of See, Chicago, e.g., City well. v. Ezell Amendment.”) (citing v. United States ond aside, Cir.2011) ("Labels (7th F.3d (3d Marzzarella, Cir. 89 n. 614 F.3d doctrine we can distill this First Amendment 2010)). general principles to extrapolate a few context.”); United simplicity, almost the Second Amendment we refer 24. For the sake of opin- (4th ownership in this Chester, exclusively to firearm Cir. 628 F.3d States purpose Act. The of the Act is the National Coordinator for Health Infor- patients protect by shielding them from Technology, mation Federal IT Health *35 any and all discussion about Strategic 2015-2020, firearms with Plan at available physicians; merely requires their the Act https://www.healthit.gov/sites/defaulV physicians to refrain from broaching a con- files/federal-healthIT-strategic-plan-2014. cededly topic they sensitive when any pdf. lack may This information be shared with good-faith belief that such information is many thirty-five as government agen- patients’ relevant to their medical care or cies. See id. at 2. It is not difficult to safety, safety or the of others. imagine this being information accessed by any number of persons unauthorized importance The of protecting gets what negligence due to impossibili- or the sheer patient’s into a beyond record is doubt. ty of guaranteeing impenetrable security. just The Act does that. It would not be supra See note 22. point— More to the able to protect the identified compelling mind, and in keeping once again, that the interests were it not to provide this all applies only Act physicians when have no important protection. dispute Plaintiffs medically relevant gather reason to such this by commonsense conclusion arguing information in place the first is no —there that existing federal and state laws suffi- patients reason for to fear for the confi- ciently protect patient privacy.25 But dentiality of their status as firearm own- protect these laws only information after ers if information about it simply physicians; has been disclosed to collected at all. nothing protect do information from the initial disclosure. In Finally, the federal Plaintiffs contend the Act is government implemented requirements not narrowly problem tailored because the mandating that all providers healthcare legislature fully seeks to cure is pro- begin transitioning to electronic medical tected 790.338(4), § Fla. Stat. which § records. See 300jj~ U.S.C. provides that patients may decline to an- ll(e)(3)(A)(ii). Although government questions swer about their firearm owner- requires transition, this providers service ship. argument That unpersuasive is also responsible are for maintaining the securi- significant because of the power imbalance ty of the electronic records. See Office of patient between and doctor.26 It impor- ion. It is of critique course the case that this 26. One power scholar has summarized the presence dynamics physician patient about the of firearms in the home relation- — ship thusly: applies many also of the circumstances only purpose we ownership. [R]esearch which discuss shows and [that] patient relationship structure of the doctor — physicians authority vest with immense regulations promulgated pursuant Under power eyes patients. Physicians' in the to the federal Portability Health Insurance authority superior derives from their knowl- Accountability Act of Pub.L. No. education, edge prestigious their social 104-191, Stat.1936, covered healthcare status, and economic and the "charismatic providers may kept not disclose information authority" symbolic that derives from their patients' in their except medical records to an conquerors role as of disease and death.... enumerated list of entities. 45 C.F.R. The confluence of these factors leads to an § 164.502. provides Florida law also that a physicians’ "profes- institutionalization patient’s kept medical records must be confi- sional dominance” within the structure of only dential and enumerates limited circum- doctor-patient legit- interaction that in itself provider stances in which a healthcare physician expressions. imizes share party. records with a third Fla. dominance, In patients the face of this 456.057(7)(a). Slat. suspend their critical faculties and defer to physicians’ opinions. disempow- Patients’ proximity in close keep geographical in mind the circumstances
tant to
First,
office.
visit
the doctor’s
typical
to seek
In
from whom
needed treatment.
highly disparate
balance of
there exists
vulnerability, patients
moments of
these
pa-A
patient.
doctor and
power between
affirmatively
hardly
expected
could
confi-
relationship
in a
of trust and
tient is
by demanding
their doctors
all non-
rebuff
a doctor and looks to the doc-
dence with
medically
questioning cease. The
relevant
opinion
guidance.27
informed
This
tor’s
pa-
provision,
proposes
cited
which
relationship
open
is not conducted
an
exactly that,
this
tients do
fails to alleviate
forum;
place
it takes
behind
closed
problem.
such,
of the examination room. As
doors
*36
Frankly,
precisely
we read
Act to be
usually
captive
doctor will
have a
audience
to the
interests.
compelling
tailored
State’s
patient.
patients
one:
must
When
In
this
it is worth
explaining
conclusion
in
any doctor
specialist
visit a
or visit
a
reviewing
actually
what
does.
first
the Act
area, any
rural
choice between available
actually prohibits record-keeping
The Act
may
virtually nonexistent.28 In
doctors
be
ownership only
about
firearm
when
words,
may
a
feel
other
rural
that
physician knows such information to be
angering
by refusing
his doctor
to answer
irrelevant,
IV.A.1,
supra
inquiry
part
see
question
gun owner-
an irrelevant
about
only
firearm
when the
ownership
in
about
ship
lapse
result
in a total
medi-
would
care,
good-faith
a
may
physician
cal
as there
not be another
lacks
belief that
position
fac-
ered
stems from a number of
28. Barriers to
access in rural ar-
healthcare
tors, including
knowledge,
lack of medical
are well
Rural Health
eas
documented. See
illness,
anxiety
accompanies
that
and
Services,
Health,
Dep't
http://www.
Florida
physicians
the need to believe
have the
floridaheaIth.gov/programs-and-services/
power
competence
and
needed to cure
community-health/rural-health/rural-health-
them.
(last
4,
("Ten
2015)
services.html
visited Dec.
currently
30
lack
of Florida's
rural counties
inequities also counter-
These structural
hospital facility.”);
an acute care
What’s Dif-
patients’ ability
question physicians
act
Care?,
about Rural Health
Nat’l Rural
ferent
conversation,
and redirect the
of a
course
Ass'n, http://www.ruralhealthweb.org/
Health
patients
even if
have an acute desire to
(last
go/lefi/about-rural-health
visited Dec.
Moreover,
acquire information.
socio-eco-
2015) (noting
percent
"[o]nly
ten
about
pa-
nomic differences between doctor and
physicians practice
in rural
de-
America
tient,
race, class,
particularly differences of
spite
nearly
the fact that
one-fourth of
gender,
age,
impede
communica-
further
population lives in
areas” and "[r]ural
these
tion.
greater transportation
have
difficul-
residents
Berg,
Paula
Toward A First Amendment
reaching
providers,
ties
health
often trav-
Theory
care
Doctor-Patient Discourse and the
Advice,
elling great
Right
a doctor or
to Receive Unbiased Medical
74
distances to reach
(footnotes
Thomas,
B.U. L.Rev.
hospital”).
Craig
225-28
Sen.
Understand-
omitted).
Challenges:
ing Rural Health Care Needs and
Americans,
Why Access Matters
Rural
43
positive
It
common
that a
doctor—
sense
(2006) ("Rural
Legis.
Harv. J. on
256
patient relationship
positive
a
effect
has
on
populations suffer
lack of in-
from distinct
negative
health outcomes and that a
relation-
surance,
costs,
high transportation
and demo-
ship'
be created
doctors’ un-
—which
graphic challenges.
significant
There are also
questioning
topics
wanted
on irrelevant
—has
services,
in rural
barriers
health to obstetrical
negative
Advisory
effect.
See The
Board
health,
health,
mental
substance abuse
oral
Study:
Company,
Physicians’
Manner
Bedside
services,
recovery
many
types of
other
14, 2014), https:
(April
Patients' Health
Affects
//www.
Furthermore,
higher
care.
rural areas face
advisory,com/daily-briefing/2014/04/
suicide.”)
obesity,
14/study-physicians-bedside-manneraffects-
depression,
rates of
(citations omitted).
patients-health.
relevant,
supra part
avoiding
speech
see
placed
information is
IV. den
unwanted
A.2,
firearm
listener,
and harassment about
owner-
v.
Snyder
Phelps,
562 U.S.
only
ship
when the
does not 443, 459,
1207, 1220,
131 S.Ct.
179 L.Ed.2d
supra
necessary,
part
see
IV.A.3.
believe
(2011),
the captive-audience doctrine
applies in certain instances where the lis-
important
It is also
to understand what
being exposed
tener cannot avoid
passing
has
to that
the State
not done
the Act.
speech.
Jacksonville,
a sweeping
City
The State has not made
ex
Erznoznik v.
inquiry
judgment
ante
that all
and medical
205, 210-11,
2268, 2273,
422 U.S.
95 S.Ct.
record-keeping by
about firearm
doctors
(1975).
45 L.Ed.2d
party
The
assert-
ownership is
The Act
inappropriate.
does
ing that
captive
he is a
audience must
represent
legislative
not even
conclusion
privacy
show that a substantial
interest is
of physician
subset
is cate-
“being
essentially
invaded
an
intoler-
Instead,
gorically inappropriate.
the Act’s
way.
Snyder,
able”
562 U.S. at
prohibitions
directly
entirely
are
cou- S.Ct. at 1220
(quoting
California,
Cohen
physicians’
good-faith
pled
judg-
own
1780, 1786,
inquiry
ments about
whether such
rec-
(1971)).
L.Ed.2d
captive-audience
The
ord-keeping
appropriate
medically
doctrine is based on a common law right to
*37
patient’s
particular
circumstances of a
left
be
alone that
better
is
understood
If,
supra
See
part
case.
IV.A.
we have
today as an “interest
that States can
concluded,
compelling
the State has a
in-
to protect
choose
in certain situations.”
in
medical
regulating
profession
terest
the
Hill,
24,
(Souter, J., concurring).
In
has no choice but
mandating “buffer
seeing
a law
upheld
questions, especially when
Court
doctor’s
intend
facilities
around healthcare
zones”
may
practicable,
another doctor
not be
from unwanted
“protect
listeners
ed
supra
26. Pa-
possible.
even
See
note
714, 716,
Id. at
120 S.Ct.
communication.”
being
their fire-
questioned
tients
about
2488-89;
Coakley,
v.
see McCullen
at
but
are
arm-ownership status
their doctor
2541,
2518,
U.S. -, -,
134 S.Ct.
573
no
like
Hill who had
more
unconsti
(holding
1201 c. making narrowly tailored propriety rights. compromises competing between Finally, we sec address the Here, compromise is between See id. ond of facial Plaintiffs’ First Amendment rights and privacy Amendment and Second challenges: overbreadth. A statute is speech. compromise The freedom of if a substantial “overbroad number of its to the minor certainly akin inconvenience unconstitutional, applications are judged because, of a 100 foot buffer zone as we in plainly legiti- relation to statute’s enough, the Act cannot stress does Stevens, sweep.” mate United States v. speech guns, only prohibit all about but 460, 473, 1577, 1587, 130 S.Ct. which faith speech good there is no (2010) (quotation 176 435 L.Ed.2d marks basis for relevance to medical care.31 omitted). “The overbreadth doctrine is ‘strong not alone in a state upholding generally We are medicine’ should be ” physician against ‘only implicating speech law administered as a last resort.’ Locke, scruti- at application (quoting First Amendment 634 F.3d United Williams, exactly 285, 293, ny. Supreme Court did States v. The U.S. (2008)). supra in See Part While Casey. IV.B.2.a. S.Ct. L.Ed.2d 650 of our posture (Casey case is different reject this for the challenge We compelled speech, than re- involved rather rejected same reasons we Plaintiffs’ speech), is the fraining from the conclusion facial free-speech challenge. conventional same: the First Amendment is not bar not prohibit The Act does a substantial achieving compelling their inter- states because, speech amount of even protected medicine, regulation in instead ests accepting “regulates that the Act and re it them to tailor requires appropriately practitioner’s every speech stricts on the their chosen solutions. firearms,” subject only it burdens applies the Act in a small Though only that, judged by circumstances, it number of when does faith, good lacks a sufficient to the nexus an apply plays extremely important role safety medical of a particular care pa: patients. is not protecting The Act may validly tient. the State legislate As revolution, legislative but it does not need practice of within professions ensure “the narrowly protects to be. It in a patients boundaries,” Goldfarb, their at U.S. focused manner order to advance argues and as no one compelling State’s interest in protecting *39 concededly that with speech irrelevant lies Amendment’s to guarantee Second good in medical we scope practice, keep patients’ privacy arms and and bear Act is not hold that the overbroad. records, rights exactly medical their tailoring scrutiny requires. sort of strict D. rights always pro- Those are that must we think Concluding, appropriate to ways big
tected and small. final point. reiterate one we Although Accordingly, we hold that District the Act today facially hold that does not by concluding requirements that the Act conflict Con- with of the Court.erred stitution, not, violates the First The Act do holding, Amendment. we fore- strict scrutiny withstands as a close re- permissible as-applied challenges. Plaintiffs speech. restriction main free assert the First Amendment to course, prohibit physi- say viding 31. Of Act does not and literature brochures that speaking publicly speech protected cians from about need much. Such remains even safely pro- wholly to use store firearms or from if it unrelated to medical care. any proceed- defense in as an affirmative TRIBE INDIANS upon them based MICCOSUKEE OF brought against
ing FLORIDA, the course of treatment made in OF Plaintiff- outside the bounds allegedly fell Appellant, By rejecting Plaintiffs’ good medical care. v. Act, simply are we challenge facial a decla- refusing provide Plaintiffs with Billy CYPRESS, Wayne Dexter a defense will be success- ration that such Lehtinen, Esquire, al., et that the Act does Having concluded ful. Defendants-Appellees. the Four- the First or not offend either Constitution, teenth Amendments No. 14-12115. uphold it. must
we Appeals,
United Court of States V. Eleventh Circuit. District Accordingly, we REVERSE Dec. summary judgment grant of Court’s Plaintiffs, the in- and VACATE favor of of the Act.
junction against enforcement
SO ORDERED.
WILSON, Judge, dissenting: Circuit in on weighed have
Numerous voices requires assess the us to appeal,
this which
constitutionality of Firearm Own Florida’s Thirty amici curiae filed Privacy Act.
ers
briefs, Majority filed its and the has now opinion seeking an iteration of
third Wollschlaeger the Act. See Gov
uphold I), (Wollschlaeger F.3d
ernor Fla. (11th Cir.2014), opinion vacated Wollschlaeger v. Gov
superseded reh’g, II), (Wollschlaeger 797 F.3d
ernor Fla. (11th Cir.2015). considered all Having the con arguments against
these law, I
stitutionality this state continue First it does survive
believe However, I have scrutiny.
Amendment effect,
already two dissents to this written banc plaintiffs sought have en
and the I an Accordingly, pen decline to
review. *40 Majority’s responding
other dissent my previous I rest
evolving rationale.
dissents.