(Wollschlaeger v. Governor of Florida)
In 2011, responding to a handful of anecdotal reports of doctors harassing patients about the dangers of gun ownership in homes with children, the Florida legislature passed a law that forbade physicians from discussing firearm ownership with their patients, with some exceptions. In response, a group of plaintiffs sued the state, seeking to overturn the law on First Amendment grounds.
A federal district court permanently enjoined enforcement of several important sections of the law. But, on appeal, a three-judge panel of the U.S, Court of Appeals for the Eleventh Circuit—in three successive decisions, each using a different standard of review for First Amendment issues—reversed the lower court and reinstated the law. The full court then voted to rehear the case.
The practice of asking patients about the presence of firearms in the home and of warning patients of the risks of unsecured firearms to children has a history dating back to at least the 1980s, when the American Medical Association enacted a policy explicitly encouraging its members to broach the topic with their patients. The American Academy of Pediatrics and the American Academy of Family Physicians also promote the practice.
Four provisions of the new law were at issue in the Eleventh Circuit case: a ban on creating a record of any disclosure about firearm ownership by a patient if the “information is not relevant to the patient’s medical care or safety, or the safety of others;” a ban on asking about firearm ownership unless the physician has a “good faith” belief that the question is relevant to the safety of the patient or others; the prohibition of discrimination by a physician based on the firearm ownership of a patient; and a ban on harassment of patients about firearm ownership.
Although the relevancy provision theoretically protects doctors who have a supportable belief about the possibility of danger, the ban effectively prevented general inquiries, such as a question on a new- patient intake form. Violations of the law are punishable as professional disciplinary offenses.
The full court of appeals, like the district court and the panel before it, held that the ban was, in fact, a ban on protected speech and required a higher level of scrutiny than a normal restriction on professional practice: “The record-keeping and inquiry provisions expressly limit the ability of certain speakers—doctors and medical professionals—to write and speak about a certain topic—the ownership of firearms—and thereby restrict their ability to communicate and/or convey a message. As a result, there can be no doubt that these provisions trigger First Amendment scrutiny.”
The court also rejected a First Amendment approach that would have labeled the prohibited firearm inquiries as merely “conduct” or “professional speech,” so that curbs on it would be deserving of a lower “rational basis” standard of First Amendment scrutiny.
“If rationality were the standard,” wrote Judge Adalberto Jordan, “the government could—based on its disagreement with the message being conveyed—easily tell architects that they cannot propose buildings in the style of I.M. Pei, or general contractors that they cannot suggest the use of cheaper foreign steel in construction projects, or accountants that they cannot discuss legal tax avoidance techniques, and so on.”
Applying the standard of “heightened scrutiny”—which requires that the state must show that a law “directly advances a substantial governmental interest”— the court questioned the strength of the state’s evidence. “Here, the Florida Legislature, in enacting [the law], relied on six anecdotes and nothing more,” wrote Judge Jordan. “There was no other evidence, empirical or otherwise, presented to or cited by the Florida Legislature.”