Dr. Bernd Wollschlaeger v. Governor of the State of Florida

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-14009

________________________

D.C. Docket No. 1:11-cv-22026-MGC

DR. BERND WOLLSCHLAEGER,

DR. JUDITH SCHAECHTER,

DR. TOMMY SCHECHTMAN,

AMERICAN ACADEMY OF PEDIATRICS, FLORIDA CHAPTER,

AMERICAN ACADEMY OF FAMILY PHYSICIANS, FLORIDA CHAPTER,

AMERICAN COLLEGE OF PHYSICIANS, FLORIDA CHAPTER, INC.,

ROLAND GUTIERREZ,

STANLEY SACK,

SHANNON FOX-LEVINE,

Plaintiffs - Appellees,

Versus

GOVERNOR OF THE STATE OF FLORIDA,

SECRETARY, STATE OF FLORIDA,

SURGEON GENERAL OF THE STATE OF FLORIDA,

SECRETARY, HEALTH CARE ADMINISTRATION OF THE STATE OF

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FLORIDA,

DIVISION DIRECTOR, FLORIDA DEPARTMENT OF HEALTH,

Division of Medical Quality Assurance,

GEORGE THOMAS,

JASON ROSENBERG,

ZACHARIAH P. ZACHARIAH,

ELISABETH TUCKER,

TRINA ESPINOLA,

MERLE STRINGER,

JAMES ORR,

GARY WINCHESTER,

NABIL EL SANADI,

ROBERT NUSS,

ONELIA LAGE,

FRED BEARISON,

DONALD MULLINS,

BRIGETTE RIVERA GOERSCH,

BRADLEY LEVINE,

Defendants - Appellants.

BROWARD COUNTY MEDICAL ASSOCIATION,

BROWARD COUNTY PEDIATRIC SOCIETY,

PALM BEACH COUNTY MEDICAL SOCIETY,

FLORIDA PUBLIC HEALTH ASSOCIATION,

UNIVERSITY OF MIAMI SCHOOL OF LAW AND YOUTH CLINIC,

CHILDREN’S HEALTHCARE IS A LEGAL DUTY, INC.,

EARLY CHILDHOOD INITIATIVE FOUNDATION,

AMERICAN ACADEMY OF PEDIATRICS,

AMERICAN ACADEMY Of CHILD AND ADOLESCENT PSYCHIATRY,

AMERICAN ACADEMY OF FAMILY PHYSICIANS,

AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS,

AMERICAN COLLEGE OF SURGEONS,

AMERICAN COLLEGE OF PREVENTIVE MEDICINE,

AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGIST,

AMERICAN CONGRESS OF OBSTETRICIANS AND GYNECOLOGISTS,

AMERICAN PSYCHIATRIC ASSOCIATION,

2

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CENTER FOR CONSTITUTIONAL JURISPRUDENCE,

DOCTORS FOR RESPONSIBLE GUN OWNERSHIP,

NATIONAL RIFLE ASSOCIATION OF AMERICA,

AMERICAN MEDICAL ASSOCIATION,

ACLU FOUNDATION OF FLORIDA,

ALACHUA COUNTY MEDICAL SOCIETY,

AMERICAN PUBLIC HEALTH ASSOCIATION,

AMERICAN ASSOCIATION OF SUICIDOLOGY,

SUICIDE AWARENESS VOICES OF EDUCATION,

LAW CENTER TO PREVENT GUN VIOLENCE,

Amicus Curiae.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(July 25, 2014)

Before TJOFLAT and WILSON, Circuit Judges, and COOGLER, * District Judge.

TJOFLAT, Circuit Judge:

The Governor of the State of Florida, other Florida officials, and members of

the Board of Medicine of the Florida Department of Health (collectively, the

“State”), appeal from the District Court’s grant of summary judgment and an

*

Honorable L. Scott Coogler, United States District Judge for the Northern District of

Alabama, sitting by designation.

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injunction in favor of a group of physicians and physician advocacy groups

(collectively, “Plaintiffs”) enjoining enforcement of Florida’s Firearm Owners

Privacy Act 1 (the “Act”) on First and Fourteenth Amendment grounds.

The Act seeks to protect patients’ privacy by restricting irrelevant inquiry

and record-keeping by physicians regarding firearms. The Act recognizes that

when a patient enters a physician’s examination room, the patient is in a position of

relative powerlessness. The patient must place his or her trust in the physician’s

guidance, and submit to the physician’s authority. In order to protect patients,

physicians have for millennia been subject to codes of conduct that define the

practice of good medicine and affirm the responsibility physicians bear. In

keeping with these traditional codes of conduct—which almost universally

mandate respect for patient privacy—the Act simply acknowledges that the

practice of good medicine does not require interrogation about irrelevant, private

matters.

As such, we find that the Act is a legitimate regulation of professional

conduct. The Act simply codifies that good medical care does not require inquiry

or record-keeping regarding firearms when unnecessary to a patient’s care. It is

1

Act of April 26, 2011, 2011 Fla. Laws 112 (codified at Fla. Stat. §§ 381.026, 456.072,

790.338).

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uncontroversial that a state may police the boundaries of good medical practice by

routinely subjecting physicians to malpractice liability or administrative discipline

for all manner of activity that the state deems bad medicine, much of which

necessarily involves physicians speaking to patients. Although the Act singles out

a particular subset of physician activity as a trigger for discipline, this does little to

alter the analysis. Any burden the Act places on physician speech is thus entirely

incidental. Plaintiffs remain free—as physicians always have been—to assert their

First Amendment rights as an affirmative defense in any actions brought against

them. But we will not, by striking down the Act, effectively hand Plaintiffs a

declaration that such a defense will be successful. Furthermore, when the Act is

properly understood as a regulation of physician conduct intended to protect

patient privacy and curtail abuses of the physician-patient relationship, it becomes

readily apparent from the language of the Act the type of conduct the Act prohibits.

Accordingly, we reverse the District Court’s grant of summary judgment in favor

of Plaintiffs, and vacate the injunction against enforcement of the Act.

I.

On June 2, 2011, Florida Governor Rick Scott signed the Act into law. The

Act created Fla. Stat. § 790.338, entitled “Medical privacy concerning firearms;

prohibitions; penalties; exceptions,” and amended the Florida Patient’s Bill of

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Rights and Responsibilities, Fla. Stat. § 381.026, to include several of the same

provisions. The Act also amended Fla. Stat. § 456.072, entitled “Grounds for

discipline; penalties; enforcement,” to provide for disciplinary measures for

violation of the Act. The Florida legislature passed the Act in response to

complaints from constituents that medical personnel were asking unwelcome

questions regarding firearm ownership, and that constituents faced harassment or

discrimination on account of their refusal to answer such questions or simply due

to their status as firearm owners.2

The Act provides, in relevant part, that licensed health care practitioners and

facilities (i) “may not intentionally enter” information concerning a patient’s

2

During the debates leading up to passage of the Act, legislators cited several incidents.

For example, in a widely publicized incident that took place in Ocala, a pediatrician, during a

routine visit, asked a patient’s mother whether she kept any firearms in her home. Because she

felt that the question constituted an invasion of her privacy, the mother refused to answer. The

pediatrician then terminated their relationship and advised the mother that she had thirty days to

find a new doctor.

In another incident, a mother was separated from her children while medical staff asked

the children whether the mother owned firearms. In another, physicians refused to provide

medical care to nine-year-old “because they wanted to know if [the child’s family] had a firearm

in their home.” Doc. 87, at 3. In another example, a legislator stated that, during an appointment

with his daughter, a pediatrician asked that the legislator remove his gun from his home.

Another legislator reported a complaint from a constituent that a health care provider

falsely told him that disclosing firearm ownership was a Medicaid requirement. At a March 8,

2011, hearing held by the Florida House Criminal Justice Subcommittee, Marion Hammer of the

National Rifle Association reported several similar incidents, including one involving a family

that had been falsely advised by a pediatrician’s office that Medicaid would not pay claims if the

family did not answer questions regarding firearm ownership.

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ownership of firearms into the patient’s medical record that the practitioner knows

is “not relevant to the patient’s medical care or safety, or the safety of others,”

§ 790.338(1); (ii) “shall respect a patient’s right to privacy and should refrain”

from inquiring as to whether a patient or his or her family owns firearms, unless

the practitioner or facility believes in good faith that the “information is relevant to

the patient’s medical care or safety, or the safety of others,” § 790.338(2); (iii)

“may not discriminate” against a patient on the basis of firearm ownership,

§ 790.338(5); and (iv) “should refrain from unnecessarily harassing a patient about

firearm ownership,” § 790.338(6).3

3

The full text of the challenged provisions is as follows:

(1) A health care practitioner licensed under chapter 456 [of the Florida Statutes] or a

health care facility licensed under chapter 395 [of the Florida Statutes] may not intentionally

enter any disclosed information concerning firearm ownership into the patient’s medical record if

the practitioner knows that such information is not relevant to the patient’s medical care or

safety, or the safety of others.

(2) A health care practitioner licensed under chapter 456 or a health care facility licensed

under chapter 395 shall respect a patient’s right to privacy and should refrain from making a

written inquiry or asking questions concerning the ownership of a firearm or ammunition by the

patient or by a family member of the patient, or the presence of a firearm in a private home or

other domicile of the patient or a family member of the patient. Notwithstanding this provision,

a health care practitioner or health care facility that in good faith believes that this information is

relevant to the patient’s medical care or safety, or the safety of others, may make such a verbal or

written inquiry. . . .

(5) A health care practitioner licensed under chapter 456 or a health care facility licensed

under chapter 395 may not discriminate against a patient based solely upon the patient’s exercise

of the constitutional right to own and possess firearms or ammunition.

(6) A health care practitioner licensed under chapter 456 or a health care facility licensed

under chapter 395 shall respect a patient’s legal right to own or possess a firearm and should

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Violation of any of the provisions of the Act constitutes grounds for

disciplinary action under § 456.072(2). § 456.072(1)(nn). Furthermore,

“[v]iolations of the provisions of subsections (1)–(4) constitute grounds for

disciplinary action under [Fla. Stat. §§] 456.072(2) and 395.1055.” § 790.338(8).

Thus, if the Board of Medicine of the Florida Department of Health (the “Board”)

finds that a practitioner has violated the Act, the practitioner faces disciplinary

measures including fines, restriction of practice, return of fees, probation, and

suspension or revocation of his or her medical license. § 456.072(2). An

investigation culminating in disciplinary action may be initiated against a

practitioner by the Department of Health or may be triggered by a citizen’s

complaint. § 456.073. The minutes of a June 2, 2011, meeting of the

Rules/Legislative Committee of the Board indicate that the Board is prepared to

initiate disciplinary proceedings against a practitioner who violates the Act, stating

refrain from unnecessarily harassing a patient about firearm ownership during an

examination. . . .

Fla. Stat. § 790.338.

The Act also contains related provisions concerning emergency medical personnel and

insurance companies, affirming the right of patients to decline to answer physician questions,

and affirming that the Act does not alter existing law regarding a physician’s authorization to

choose patients. § 790.338(3), (4), (7). Plaintiffs do not appear to challenge these provisions,

and, as the District Court held, because these provisions do not apply to practitioners or do not

regulate any conduct by practitioners, Plaintiffs lack standing to challenge them.

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that “the Committee [has] determined [that] violation of [the Act] falls under

failure to comply with a legal obligation and the current disciplinary guidelines for

this violation would apply.” Doc. 87, at 5.

On June 6, 2011, four days after Governor Scott signed the Act into law,

Plaintiffs filed a 42 U.S.C. § 1983 action against the State in the United States

District Court for the Southern District of Florida, alleging that the inquiry, record-

keeping, discrimination, and harassment provisions of the Act facially violate the

First and Fourteenth Amendments of the United States Constitution, and seeking

declaratory and injunctive relief. Plaintiffs contended that the Act imposes an

unconstitutional, content-based restriction on speech, is overbroad, and is

unconstitutionally vague.

On September 14, 2011, finding that Plaintiffs were likely to succeed on the

merits, the District Court preliminarily enjoined enforcement of the inquiry,

record-keeping, discrimination, and harassment provisions of the Act, together

with the provisions providing for discipline of practitioners who violate the Act.

Wollschlaeger v. Farmer, 814 F. Supp. 2d 1367, 1384 (S.D. Fla. 2011) (citing

§§ 456.072(1)(nn), (2), 790.338(1), (2), (5), (6), (8)).

On June 2, 2012, the District Court permanently enjoined enforcement of the

inquiry, record-keeping, discrimination, and harassment provisions of the Act—

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together with the related disciplinary provisions—holding, on cross motions for

summary judgment, that all four provisions facially violated the First Amendment,

and that the inquiry, record-keeping, and harassment provisions of the Act were

void for vagueness. Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251, 1267–69

(S.D. Fla. 2012) (citing §§ 456.072(1)(nn), (2), 790.338(1), (2), (5), (6), (8)).

The District Court found that Plaintiffs had standing to sue because Plaintiffs

were engaging in self-censorship to avoid potential disciplinary action, which

constituted a cognizable injury-in-fact that was fairly traceable to the Act and

redressable by injunction. Id. at 1258–59. The District Court also held that

Plaintiffs’ claims were ripe, finding that delayed review would “cause hardship to

Plaintiffs, who would continue to engage in self-censorship,” and that further

factual development of the issues was unnecessary. Id. at 1259.

Turning to the merits, the District Court found that the Act imposed a

content-based restriction on practitioners’ speech on the subject of firearms. Id. at

1261. The District Court rejected the State’s argument that the Act “constitute[s] a

permissible regulation of professional speech or occupational conduct that imposed

a mere incidental burden on speech.” Id. at 1262. The District Court noted that,

unlike the provisions of the Act, “[s]uch regulations govern the access or practice

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of a profession; they do not burden or prohibit truthful, non-misleading speech

within the scope of the profession.” Id.

The District Court then assessed the State’s asserted interests in passing the

Act. The District Court acknowledged that the State has an interest in protecting

its citizens’ Second Amendment right to keep and bear arms, but found that such a

right is “irrelevant” to the Act and therefore is not “a legitimate or compelling

interest for it.” Id. at 1264. The District Court found that, because the State acted

on the basis of purely anecdotal information and provided no evidence that

discrimination or harassment based on firearm ownership is pervasive, the State

does not have a legitimate or compelling interest in protecting its citizens “from

barriers to the receipt of medical care arising from [such] discrimination or

harassment.” Id. (internal quotation marks omitted). However, the District Court

found that Florida has legitimate—but “perhaps” not compelling—interests “in

protecting patients’ privacy regarding their firearm ownership or use” and in the

regulation of professions. Id. at 1265.

Balancing physicians’ free speech rights against the State’s legitimate

interests in protecting patient privacy and regulating the professions, the District

Court held that—regardless of whether strict scrutiny or some lesser standard

applied—the inquiry, record-keeping, discrimination, and harassment provisions of

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the Act could not pass constitutional muster. Id. at 1265–67. The District Court

found that the State had failed to provide any evidence that the confidentiality of

information regarding patients’ firearm ownership was at risk, noting that a patient

may simply decline to provide such information, and that state and federal laws

pertaining to the confidentiality of medical records provide adequate protection to

patients. Id. at 1267 (citing Health Insurance Portability and Accountability Act of

1996, Pub. L. No. 104-191, 110 Stat. 1936 (providing, among other things,

confidentiality of medical records); Fla. Stat. § 456.057 (same)). With regard to

the regulation of professions, the District Court found that the Act lacked “narrow

specificity,” id. at 1266 (internal quotation marks omitted), because the Act

directly targets speech rather than merely imposing an incidental burden on speech.

Id. at 1266–67. For similar reasons, the District Court further found that the Act is

not the least restrictive means of achieving the State’s interests. Id. at 1267. Thus,

the District Court held that the “balance of interests tip significantly in favor of

safeguarding practitioners’ ability to speak freely to their patients.” Id. at 1267.

The District Court also held that the inquiry, record-keeping, and harassment

provisions of the Act were unconstitutionally vague. Id. at 1267–69. With regard

to the inquiry and record-keeping provisions, the District Court found that the

“relevance standard” failed to provide sufficient guidance as to what conduct the

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Act prohibits. Id. at 1268. With regard to the harassment provision, the District

Court noted that the term “harass” has an ordinary meaning that is readily clear,

id., but that the “[w]hat constitutes ‘unnecessary harassment’ is left to anyone’s

guess,” id. at 1269. The District Court noted that it did not need to address

Plaintiffs’ argument that the Act is overbroad because doing so would not change

the outcome. Id. at 1270 n.7.

Thus, the District Court—finding the remaining provisions of the Act

severable—granted Plaintiffs motion for summary judgment, and granted in part

and denied in part the State’s motion for summary judgment. 4 Id. at 1270.

Accordingly, the District Court permanently enjoined the State from enforcing the

record-keeping, inquiry, harassment, and discrimination provisions of the act,

§ 790.338(1), (2), (5), (6), and from enforcing § 790.338(8), to the extent that it

provided that violations of § 790.338(1) and (2) constitute ground for disciplinary

action, and § 456.072(1)(nn), to the extent that it provided that violations of

§ 790.338(1), (2), (5) and (6) constitute grounds for disciplinary action. Id.

4

The District Court granted the State’s motion for summary judgment with respect to the

provisions of the Act that neither apply to practitioners nor regulate any conduct by practitioners,

§ 790.338(3), (4), (7), finding that Plaintiffs’ lacked standing to challenge these provisions.

Wollschlaeger, 880 F. Supp. 2d at 1258.

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On July 30, 2012, the State appealed the District Court’s judgment. The

State contends that the District Court erred in holding Plaintiffs’ claims justiciable,

because the Act does not prohibit physicians from asking patients about firearm

ownership, providing firearm safety counseling, or recording information

concerning patients’ firearm ownership. The State argues that physicians may

engage in such conduct when it is relevant to patients’ care, and even when not

relevant, the Act merely suggests that physicians “should refrain” from inquiring

as to firearm ownership. § 790.338(2). Such hortatory language, the State argues,

does not constitute a mandate that physicians must not inquire. Thus, the State

argues, because the Act does not in fact actually prohibit the conduct Plaintiffs

wish to engage in, Plaintiffs lack standing to challenge the Act because they have

not demonstrated injury-in-fact. Moreover, the State argues, we have an obligation

to read the Act as a mere recommendation that physicians refrain from irrelevant

inquiry and record-keeping about firearms, in order to construe the Act as valid.

The State also argues that the District Court erred in holding that the Act

imposes a facially unconstitutional content-based speech restriction, because the

Act is a regulation of professional conduct that imposes only incidental burdens on

speech, and because the discrimination and harassment provisions regulate conduct

and cannot be challenged on free speech grounds. Even if the Act imposes more

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than an incidental burden on speech, the State argues, the Act should be upheld as

a valid restriction on commercial speech because the Act is narrowly tailored to

further substantial governmental interests in patient privacy, protecting Second

Amendment rights, preventing barriers for firearm owners to receive medical care,

and preventing harassment and discrimination of firearm-owning patients.

The State further contends that the District Court erred in holding the

inquiry, record-keeping, and harassment provisions of the Act unconstitutionally

vague because a plain meaning reading of the Act’s terms makes it reasonably

clear what conduct is prohibited. Finally, the State argues that the Act is not

overbroad because the inquiry and record-keeping provisions do not

unconstitutionally prohibit any speech, and the discrimination and harassment

provisions are indistinguishable from legitimate antidiscrimination statutes such as

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17 (1976),

and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213

(1994). Thus, the State contends, the District Court erred in granting summary

judgment for Plaintiffs and enjoining the enforcement of the Act.

Plaintiffs argue that the District Court properly held Plaintiffs’ claims

justiciable. Plaintiffs contend that their self-censorship constitutes a cognizable

injury-in-fact because they wish to engage in speech that is at least arguably

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forbidden by the Act, the challenged provisions are at least arguably vague, and

there is some minimal probability that the provisions will be enforced if violated.

Plaintiffs contend that the “should refrain” language of the Act’s inquiry provision

may not be interpreted as hortatory when physicians face discipline for its

violation, and when the provision contains a safe-harbor clause that would be

irrelevant if the provision were read as hortatory. Thus, Plaintiffs argue that they

have standing.

On the merits, Plaintiffs argue that the Act is not properly understood as a

regulation of professional medical conduct, because all four challenged provisions

were enacted in response to—and were intended to prohibit—communications

regarding firearm safety. Thus, Plaintiffs contend, the Act is an impermissible

viewpoint-discriminatory restriction on speech, subject to strict scrutiny, which

cannot be justified by any of the State’s proffered interests, and which in any case

is not the least restrictive means of accomplishing the State’s objectives. Plaintiffs

also argue that the Act is unconstitutionally vague because the statute does not

define “relevant” in the inquiry and record-keeping provisions, and does not define

“unnecessarily harassing” or “discrimination.” Finally, Plaintiffs argue, the Act is

overbroad because it affects a wide swath of physicians’ daily interactions with

patients, and appears to preclude even consented-to inquiries and recordation of

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information regarding firearms. Thus, Plaintiffs contend, we should affirm the

District Court’s grant of summary judgment for Plaintiffs and issuance of an

injunction against enforcement of the Act.

II.

We review a district court’s grant of summary judgment de novo. Thomas

v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). “Summary

judgment is appropriate when ‘there is no genuine issue of material fact and . . . the

moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R.

Civ. P. 56(c)). A genuine issue of material fact exists “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” United States v.

Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991). “In making this

determination, we review the record, drawing all reasonable inferences in the light

most favorable to the nonmoving party.” Damon v. Fleming Supermarkets of Fla.,

Inc., 196 F.3d 1354, 1358 (11th Cir. 1999). We also review de novo questions

concerning our subject matter jurisdiction, such as standing and ripeness. Elend v.

Basham, 471 F.3d 1199, 1204 (11th Cir. 2006).

III.

A.

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We find that the District Court properly held that Plaintiffs’ claims are

justiciable. In order to have standing, “a claimant must present an injury that is

concrete, particularized, and actual or imminent; fairly traceable to the defendant’s

challenged behavior; and likely to be redressed by a favorable ruling.” Davis v.

Fed. Election Comm’n, 554 U.S. 724, 733, 128 S. Ct. 2759, 2768, 171 L. Ed. 2d

737 (2008). However, “[s]tanding is not dispensed in gross. Rather, a plaintiff

must demonstrate standing for each claim he seeks to press and for each form of

relief that is sought.” Id. at 734, 128 S. Ct. at 2769 (citations omitted) (internal

quotation marks omitted).

At the outset, we note that Plaintiffs’ First Amendment challenge to the Act

may be viewed as the functional equivalent of a First Amendment argument raised

as an affirmative defense in a hypothetical case brought against a physician for

asking irrelevant questions about firearms contrary to good medical practice. A

physician could raise such a defense in a disciplinary proceeding brought under the

Act for such conduct, or, for that matter, in a malpractice action brought in court

for such conduct. For example, a patient could file a lawsuit alleging that a

physician committed malpractice by unnecessarily harassing the patient about

firearm ownership—just as a patient could potentially file a lawsuit alleging that a

physician committed malpractice by unnecessarily harassing the patient about any

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other topic. The physician could choose to admit to the purportedly harassing

speech and plead the First Amendment as an affirmative defense, in effect

contending that the court’s rejection of the affirmative defense would constitute

state action in violation of the Constitution. Indeed, leaving aside the Act, a

physician facing malpractice liability for a wide swath of professional activity

involving speech could theoretically raise a First Amendment defense.

In mounting a facial challenge to the Act, however, Plaintiffs sought a First

Amendment defense to any action brought against a physician based on speech

targeted by the Act. The State contends that the only proper vehicle for Plaintiffs’

First Amendment defense is a live proceeding brought under the Act. In other

words, in arguing that Plaintiffs’ facial challenge is not justiciable, the State is

saying that Plaintiffs must wait until they have been subjected to discipline

pursuant to the Act.

Crucial to resolving the standing question is the nature of Plaintiffs’ claims.

“Under controlling case law, we apply the injury-in-fact requirement most loosely

where First Amendment rights are involved, lest free speech be chilled even before

the law or regulation is enforced.” Harrell v. The Fla. Bar, 608 F.3d 1241, 1254

(11th Cir. 2010) (citing Hallandale Prof’l Fire Fighters Local 2238 v. City of

Hallandale, 922 F.2d 756, 760 (11th Cir. 1991)).

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Plaintiffs’ sole alleged injury is self-censorship, which may be a cognizable

injury-in-fact for standing purposes. See id. (“[I]t is well-established that ‘an

actual injury can exist when the plaintiff is chilled from exercising her right to free

expression or forgoes expression in order to avoid enforcement consequences.’”

(quoting Pittman v. Cole, 267 F.3d 1269, 1283 (11th Cir. 2001))).

For their First Amendment claims, to establish a cognizable self-censorship

injury, Plaintiffs “must show that, as a result of [their] desired expression, (1) [they

were] threatened with prosecution; (2) prosecution is likely; or (3) there is a

credible threat of prosecution.” Id. at 1260 (internal quotation marks omitted). To

establish that there is a credible threat of prosecution, Plaintiffs must demonstrate:

“first, that [they] seriously wish[] to engage in expression that is ‘at least arguably

forbidden by the pertinent law,’ and second, that there is at least some minimal

probability that the challenged rules will be enforced if violated.” Id. (citations

omitted). “If a challenged law or rule was recently enacted, or if the enforcing

authority is defending the challenged law or rule in court, an intent to enforce the

rule may be inferred.” Id. at 1257.

Plaintiffs explain that, as part of the practice of preventative care, some

physicians routinely ask patients whether they own firearms—either verbally or via

a screening questionnaire—and provide firearm safety counseling, as part of a

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larger battery of questions and counseling regarding health and safety risks

(including, for example, poisonous chemicals in the home, alcohol, tobacco, and

swimming pools). After passage of the Act, Plaintiffs have curtailed or eliminated

this practice for fear of facing discipline.5

Plaintiffs have established that they wish to engage in conduct that is at least

arguably forbidden by the Act. In their practice of preventative medicine,

5

Plaintiffs’ Complaint lays out the specifics of individual physicians’ practices regarding

firearm inquiries and safety counseling. For example, prior to passage of the Act, Dr.

Wollschlaeger asked his patients to complete a questionnaire that included questions regarding

firearm ownership, and routinely orally asked patients whether they owned firearms if other risk

factors were present—such as when patients had children in the home, were suffering from

addiction, depression, or suicidal ideation, had an unstable family environment, or were involved

in a domestic-violence situation—to provide firearm safety counseling tailored to the patient’s

circumstances. After passage of the Act, Dr. Wollschlaeger has removed the firearms-related

questions from his questionnaire and no longer orally asks questions regarding firearm

ownership or discusses firearms as part of his standard preventative counseling.

The other physicians who are party to this suit have limited their practice of asking

questions and providing counseling about firearm safety, but still do so to varying degrees. For

example, prior to passage of the Act, Dr. Schaechter and Dr. Schectman routinely asked their

patients questions regarding firearm ownership and entered related information into their medical

records. They have continued this practice even after passage of the Act because they believe in

good faith that such questions and information are relevant to their patients’ care. However, they

now refrain from asking follow-up questions when patients or their parents seem upset by the

initial screening question, when, prior to passage of the Act, they would not have refrained.

Similarly, Dr. Gutierrez continues to use a patient questionnaire that includes a question about

firearm ownership, but has resolved to refrain from asking any follow-up questions should a

patient initially appear disinclined to discuss the topic. Dr. Sack has ended his previous practice

of beginning his firearm safety counseling by asking patients whether they have a firearm in the

house. However, he has continued to provide firearm safety counseling, framing it in

hypothetical terms not tailored to his patients’ individual circumstances. Dr. Fox-Levine has,

since passage of the Act, removed questions regarding firearm ownership from her intake

questionnaire, but continues to advise some patients about firearm safety, framing her advice in

hypothetical terms.

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Plaintiffs wish to ask questions and record information regarding firearms as a

matter of routine—without making a particularized determination of relevance—

which implies that some such inquiry and recordation will not be relevant to the

health and safety of patients or others and thus would be prohibited by the Act.

The Act was recently enacted, and the State is defending it, so we may infer that

there is at least some probability that the Act will be enforced if violated. 6 Thus,

Plaintiffs have established a cognizable self-censorship injury for their First

Amendment claims. 7

For Plaintiffs’ vagueness claim, the test for establishing a cognizable self-

censorship injury is similar. “[Plaintiffs] must establish that: (1) [they] seriously

wish[] to [engage in speech], (2) such [speech] would arguably be affected by the

rules, but the rules are at least arguably vague as they apply to [them], and (3) there

is at least a minimal probability that the rules will be enforced, if they are

6

We note that the Act does not provide for criminal penalties, but only disciplinary

action by the Board. Nevertheless, for standing purpose, the threat of disciplinary action may be

sufficient. See Harrell, 608 F.3d at 1248, 1260 (finding an attorney had standing to challenge the

state bar’s attorney advertising rules, when the consequence for noncompliance was disciplinary

action, such as disbarment).

7

We acknowledge that the harassment and discrimination provisions of the Act in

particular, § 790.338(5) and (6), prohibit conduct that may involve little to no speech.

Nevertheless, Plaintiffs claim self-censorship as a result of all four challenged provisions of the

Act. As all four challenged provisions regulate conduct that could arguably involve speech, even

if only incidentally, this is sufficient for standing purposes. We need not, of course, evaluate the

merits of these claims at the standing stage.

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violated.” Id. at 1254 (citations omitted). Notably, “it is the existence, not the

imposition, of standardless requirements that causes [the] injury.” Id. (alteration in

original) (quoting CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257,

1275 (11th Cir. 2006)).

For the reasons discussed above, Plaintiffs have met the first and third

prongs. With regard to the second prong, Plaintiffs argue that it is unclear whether

routine inquiries and record-keeping regarding firearms, made as part of the

practice of preventative medicine and not based on patients’ particularized

circumstances, qualify as “relevant” to health and safety, and that the law does not

define the terms “unnecessarily harassing” or “discriminate,” leaving practitioners

without guidance as to what conduct the Act prohibits and when physicians may be

subject to discipline for conduct patients may unpredictably deem objectionable.

Without determining, at this stage, the ultimate merits of Plaintiffs’ argument, we

accept that the language Plaintiffs point to is at least arguably vague. Thus,

Plaintiffs have established a cognizable self-censorship injury for their vagueness

claim.

Plaintiffs claim that they curtailed their firearms inquiry and counseling

practices due to the Act, and that they would resume those practices but for the

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Act. Thus, Plaintiffs’ self-censorship injury is fairly traceable to passage of the

Act, and redressable by injunction. Accordingly, Plaintiffs have standing.

The State argues that Plaintiffs lack standing with regard to the inquiry

provision of the Act because the provision in fact prohibits nothing at all. Thus,

the State claims, Plaintiffs’ fear that they will face discipline is not objectively

reasonable. See Wilson v. State Bar of Ga., 132 F.3d 1422, 1428 (11th Cir. 1998)

(“A party’s subjective fear that she may be prosecuted for engaging in expressive

activity will not be held to constitute an injury for standing purposes unless that

fear is objectively reasonable.”). Under the State’s proposed construction, the Act

merely recommends that physicians “should refrain” from asking questions about

firearms unless relevant, and that such hortatory language does not constitute a bar

on speech. The State points out that the Executive Director of the Board stated in a

letter—posted to the Board’s website shortly after Plaintiffs filed suit—that the

Board does not interpret the inquiry provision as a prohibition, but rather as a

recommendation (contradicting a letter the Executive Director had previously

mailed to Florida physicians stating the opposite). Accordingly, the State

contends, there is no credible threat of enforcement with regard to the inquiry

provision.

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We disagree. Laws—such as the Act—that provide for disciplinary action

in case of violation should generally not be interpreted as hortatory. Compare

Liesegang v. Sec’y of Veterans Affairs, 312 F.3d 1368, 1377 (Fed. Cir. 2002) (“In

the absence of any consequences for noncompliance, [a law’s] timing provisions

are at best precatory rather than mandatory.”), with Kittay v. Kornstein, 230 F.3d

531, 538 n.3 (2d Cir. 2000) (noting that attorney disciplinary rules “are mandatory

in character” because they “state the minimum level of conduct below which no

lawyer can fall without being subject to disciplinary action” (internal quotation

marks omitted)), and Edwards v. Born, Inc., 792 F.2d 387, 391–92 (3d Cir. 1986)

(noting that attorney disciplinary rules “are mandatory” because attorneys are

subject to discipline for violating them). Thus, despite the Board’s position—

insofar as the Executive Director’s letters represent it—that the inquiry provision

constitutes a recommendation rather than a mandate, the fact that the Act provides

for disciplinary action against Plaintiffs in case of a violation provides evidence

that Plaintiffs’ fear that they may face discipline is objectively reasonable for

standing purposes. Notably, this is not a generalized fear of disciplinary action,

but rather a specific apprehension by a specific group—physicians—whose

conduct the Act targets. But cf. Clapper v. Amnesty Int’l USA, ___ U.S. ___, 133

S. Ct. 1138, 1143, 185 L. Ed. 2d 264 (2013) (holding that attorneys and various

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human rights, labor, legal, and media organizations cannot “manufacture standing”

to challenge a provision of the Foreign Intelligence Surveillance Act of 1978 “by

choosing to make expenditures based on hypothetical future harm” where plaintiffs

merely speculate that the government will target their communications, and so the

costs they incurred were a product of their generalized fear of surveillance).

Moreover, we note that Board has not been consistent in its position that the

inquiry provision is hortatory, as indicated by the Executive Director’s first letter

stating the contrary. The State is also inconsistent in its interpretation of the

“should refrain” language in its briefs, repeatedly characterizing identical language

in the harassment provision of the Act as a mandatory prohibition against

unnecessary harassment, State’s Br. at 1, 6, 18, 27, 35 n.8, 39, and describing the

inquiry provision itself as “proscrib[ing] . . . inquiries,” id. at 11, and “prohibit[ing]

conduct: health care providers must not interrogate patients about firearms . . . if it

is not relevant to a patient’s medical care or safety, or the safety of others,” id. at

39 (emphasis added). But cf. Wilson, 132 F.3d at 1428–29 (holding disbarred

attorneys lacked standing to challenge State Bar rules that limit the ways in which

disbarred attorneys can represent themselves to the public or have contact with

clients where “the State Bar ha[d] repeatedly and consistently taken the position

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that the [challenged rules] ha[d] no application to the types of scenarios the

disbarred attorneys have posed”).

Neither is it controlling that—as the State contends—the Florida Supreme

Court interpreted the term “should” as hortatory in reviewing Florida’s Code of

Judicial Conduct. See In re Code of Judicial Conduct, 643 So. 2d 1037, 1041 (Fla.

1994). Such interpretation is irrelevant to determining what effect the Florida

legislature intended to give language in the Act. Thus, Plaintiffs’ fear that they

may face discipline under the inquiry provision is objectively reasonable. 8

The State also argues that Plaintiffs lack standing with regard to the record-

keeping provision of the Act because it only proscribes the entry of firearm

information that is not relevant to medical care or safety, and Plaintiffs claim no

injury arising from a wish to record irrelevant information. However, Plaintiffs

claim an injury to their practice of preventative medicine arising from not being

8

We do not accept the State’s argument that construing the inquiry provision’s “should

refrain” language as hortatory would render meaningless the portion of the provision allowing

physicians to nevertheless make firearm inquiries when doing so would be relevant to care and

safety. See Corley v. United States, 556 U.S. 314, 129 S. Ct. 1558, 1566, 173 L. Ed. 2d 443

(2009) (“[A] statute should be construed so that effect is given to all its provisions, so that no

part will be inoperative or superfluous, void or insignificant.” (internal quotation mark omitted)).

Even if we were to construe the inquiry provision as a mere recommendation that physicians

refrain from inquiring about firearms, it is perfectly reasonable that the legislature may wish to

withdraw this recommendation should the inquiry be relevant in a given case. Nevertheless, we

find that the inquiry clause is not a mere recommendation, and our rejection of the State’s

argument does not alter the result of our standing inquiry.

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free to record the firearm information of every patient as a matter of course.

Some—perhaps the majority—of these records will therefore be irrelevant to the

care and safety of patients and others. Thus, the State’s argument is unavailing:

Plaintiffs claim an injury arising, in part, from a desire to record irrelevant

information.

Accordingly, we find that the District Court properly held that Plaintiffs’

have standing to challenge the Act. We also find that the District Court properly

held that Plaintiffs’ claims are ripe for adjudication.9

B.

Before addressing the State’s other arguments, however, we must evaluate

the Act in order to assess the interests at stake. The essence of the Act is simple:

medical practitioners should not record information or inquire about patients’

firearm-ownership status when doing so is not necessary to providing the patient

with good medical care. The Act’s harassment and discrimination provisions serve

to reinforce these prohibitions.

As suggested by the complaints the Florida legislature received prior to

passage of the Act, patients are aware that their answers to physicians’ inquiries

9

The State does not renew on appeal its argument that Plaintiffs’ claims are not ripe.

Thus, we will not address the issue in detail.

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will be entered into their medical record, and may fear that their record will be

shared with third parties, including, for example, government bureaucrats.10 We

need not speculate as to the reasons a patient may have for objecting to the sharing

of his or her firearm-ownership status, but we note that a patient might be

concerned about disclosing to a physician information regarding any number of

private topics when such information is not relevant to his or her medical care for

similar reasons. For example, a patient may not wish to disclose his or her

religious or political affiliations, sexual preferences, or bank account balance to a

physician. The Act merely circumscribes the unnecessary collection of patient

information on one of many potential sensitive topics. It does so as a means of

10

Plaintiffs argue that existing federal and state law sufficiently protects the

confidentiality of medical records. Under regulations promulgated pursuant to the federal Health

Insurance Portability and Accountability Act of 1996, Pub. L. No. 104–191, 110 Stat. 1936,

covered health care providers may not disclose health information except to an enumerated list of

entities. 45 C.F.R. § 164.502. Florida law provides that a patients’ medical records must be kept

confidential and enumerates only limited circumstances in which a health care provider may

share a patient’s records with a third party. Fla. Stat. § 456.057(7)(a). Thus, Plaintiffs contend,

patients’ fears that their firearm-ownership status will be shared with third parties are unfounded

and the Act is unnecessary, insofar as its purpose is to protect the confidentiality of patients’

firearm-ownership status.

Nevertheless, the Florida legislature perceived a particular problem surrounding the

eliciting and recording of firearm ownership information by physicians, and passed the Act in

response. It is not our place to pass on the wisdom of the legislature’s motivations, nor—at this

stage—to evaluate the extent to which the Act furthers the legislature’s stated interests. See City

of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 2517, 49 L. Ed. 2d 511 (1976)

(“[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of

legislative policy determinations made in areas that neither affect fundamental rights nor proceed

along suspect lines . . . .”).

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protecting a patient’s ability to receive effective medical treatment without

compromising the patient’s privacy with regard to matters unrelated to healthcare.

In the physician-patient relationship, a patient may need protection because

there is an “imbalance of power between patient and physician.” American

College of Physicians, Ethics Manual (6th ed. 2012), available at

http://www.acponline.org/running_practice/ethics/manual/manual6th.htm#physicia

n-patient. When a patient enters a physician’s office, the patient depends on the

physician’s knowledge and submits to the physician’s authority, sometimes on

matters of life and death. It is no exaggeration to state that a patient may be in

some cases essentially at the mercy of his or her physician. As such, physicians

bear a great responsibility toward their patients, and the relationship of patient to

physician is one of trust and dependence, in which the patient consigns him- or

herself to the physician’s care, and depends on the physician to act with integrity,

fidelity, and competence. See John Ladd, Medical Ethics: Who Knows Best?, 316

The Lancet 1127, 1129 (1980) (“The physician’s power is awesome, and power

carries responsibility. . . . Power, of course, presupposes trust and confidence.”).

The Dissent states that “[o]f course,” patients are free not to answer their

doctors’ questions about firearms if they choose not to. Dissenting op. at 137. In

support, the Dissent cites precedent holding that residents who wish not to answer

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questions from unwelcome visitors at their doorsteps receive “‘ample protection’

from [their] ‘unquestioned right to refuse to engage.’” Sorrell v. IMS Health Inc.,

___ U.S. ___, 131 S. Ct. 2653, 2670, 180 L. Ed. 2d 544 (2011) (quoting

Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150,

168, 122 S. Ct. 2080, 2091, 153 L. Ed. 2d 205 (2002)). But the Dissent’s

assumption ignores the reality that when patients are in examining rooms, they

may feel powerless vis-à-vis their physicians. So when physicians inquire about

the presence of firearms in patients’ homes, some patients may feel that their

physicians demand an answer. While an individual is certainly free to refuse to

answer a question posed by another in the public square, a patient may not feel that

same freedom when the question comes from his or her physician.

This is particularly true in circumstances in which a patient is especially

powerless vis-à-vis his or her physician. For example, a patient in a rural area may

have access to only a single physician. Without the option to seek treatment from

a different physician, and without the protections imposed by professional codes of

conduct and the law of malpractice, such a patient would have no recourse if the

physician chooses to abuse the physician-patient relationship in some way—for

instance by exploiting his or her authority over a patient for personal financial

gain, to make inappropriate sexual advances, or, as we are concerned with here, to

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extract private information, for whatever reason, unrelated to the patient’s medical

care.

Thus, at least in part to protect patients from physicians who abuse their

position of power, physicians have long been subject to codes of conduct. In

Classical Greece, the Hippocratic Oath—as it comes down to us today—required

physicians to affirm their responsibilities by swearing that they will uphold a

number of professional ethical standards, including that they will keep patients’

private information in confidence and “keep [patients] from harm and injustice.”

Ludwig Edelstein, The Hippocratic Oath: Text, Translation, and Interpretation

(1943), available at

http://guides.library.jhu.edu/content.php?pid=23699&sid=190555. Today, most

graduating medical students swear to a modernized form of the Oath. Peter Tyson,

The Hippocratic Oath Today, PBS (Mar. 27, 2001),

http://www.pbs.org/wgbh/nova/body/hippocratic-oath-today.html.

Other modern ethical models abound. For example, the American Medical

Association (the “AMA”) invites physicians to pledge to a Declaration of

Professional Responsibility, which provides that physicians must, among other

things, “[t]reat the sick and injured with competence and compassion and without

prejudice” and “[p]rotect the privacy and confidentiality of those for whom [they]

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care and breach that confidence only when keeping it would seriously threaten

their health and safety or that of others.” American Medical Association,

Declaration of Professional Responsibility: Medicine’s Social Contract with

Humanity (2001), available at http://www.ama-

assn.org/resources/doc/ethics/decofprofessional.pdf.

As the Hippocratic Oath and the AMA’s Declaration of Professional

Responsibility suggest, the practice of good medicine should not require inquiry

into private matters unless such inquiry is necessary for the practice of good

medicine. What better way to protect patients’ privacy than to not inquire

unnecessarily about private matters? The Act merely reaffirms the boundaries

surrounding what constitutes good medical practice by codifying into law this

common-sense proposition, and serves the important purpose of protecting the

privacy rights of patients who do not wish to answer questions about irrelevant and

private matters.

Insofar as Plaintiffs claim a generalized interest in being able to speak freely

to their patients, such conversation (if not relevant to medical care) is outside the

boundaries of the physician-patient relationship. Thus, insofar as Plaintiffs wish to

make inquiries and keep records regarding firearm ownership as a matter of

routine, even when not relevant to an individual patient’s case, the Act places such

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conduct outside of the bounds of good medical practice, recognizing that routine

inquiries and recordkeeping regarding firearm ownership are not within the

province of medicine but are rather, perhaps, law enforcement issues.11

Plaintiffs’ ultimate concern, then, must lie in the close case: where it may be

debatable whether a firearm inquiry is relevant to a given patient’s care. At one

extreme, if a patient’s firearm-ownership status is plainly irrelevant to a patient’s

care, it will be clear that the Act bars inquiry. At the other extreme, if good

medical care clearly requires inquiry—for example, in case of a suicidal patient—

the physician will know that inquiry is relevant and thus not barred. The close case

lies somewhere in the middle, where a physician may be forced to act without

11

Plaintiffs contend that physician inquiries about firearm ownership comply with

professional medical standards, even in situations (presented by the practice of preventative care)

where such inquiries may initially appear irrelevant to medical care or safety. Several medical

associations—including the AMA, and those associations that are party to this suit—have

policies that endorse physicians’ practice of asking questions and providing counseling regarding

firearms. See, e.g., Brief for American Medical Association, et al., as Amici Curiae Supporting

Plaintiffs/Appellees at 21–22 (citing American Medical Association Policy H-145.990,

Prevention of Firearm Accidents of Children).

We observe that these policies may be in conflict with the AMA’s Declaration of

Professional Responsibility, which, as noted, mandates respect for patient privacy. In any case,

it is well-established that Florida may regulate professional standards of medical care within its

borders—regardless of what medical associations may recommend. See, e.g., Barsky v. Bd. of

Regents, 347 U.S. 442, 449, 74 S. Ct. 650, 654, 98 L. Ed. 829 (1954) (“It is elemental that a state

has broad power to establish and enforce standards of conduct within its borders relative to the

health of everyone there. . . . The state’s discretion in that field extends naturally to the

regulation of all professions concerned with health.”).

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definitive guidance as to whether or not his or her conduct falls within the bounds

of good medical care.

This problem, however, is not unique to a physician’s decision regarding the

propriety of firearm inquiries under the Act. A physician must continually make

decisions regarding what constitutes appropriate care under the relevant

professional standards, while running the risk that he or she may be subject to

discipline or exposed to malpractice liability for making a poor decision. As

leading bioethicists recognize,

[b]y entering into the profession of medicine, physicians accept a

responsibility to observe the standards specific to their profession. If

their conduct falls below these standards, they act negligently. . . .

[However,] [t]he line between due care and inadequate care (that

which falls below what is due) is often difficult to draw.

Tom. L. Beauchamp & James F. Childress, Principals of Biomedical Ethics 154–

55 (6th ed. 2009). Whether a physician’s transgression concerns unnecessary

inquiry or record-keeping regarding private matters or anything else the State

chooses to define as grounds for discipline, the law of malpractice—and the

statutory disciplinary measures the Board is authorized to impose for violations of

specific professional standards—remain the same. Likewise, under the Act, the

challenge a physician faces in treating a patient remains the same: he or she must

use professional judgment to determine what constitutes good medical care for that

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particular patient, and proceed accordingly. The Act merely delineates one

factor—privacy regarding firearm ownership—in the physician’s calculation.

It does little to alter the analysis that the Act singles out a single factor as a

trigger for discipline, nor that this factor involves what the legislature considers

appropriate for physicians to ask or record about their patients. Even leaving aside

statutory disciplinary measures such as the Act, a physician may face liability in

state courts under malpractice or tort law for a wide swath of professional activity,

much of which necessarily involves physicians speaking or failing to speak.

Indeed, “doctors are routinely held liable for giving negligent medical advice to

their patients, without serious suggestion that the First Amendment protects their

right to give advice that is not consistent with the accepted standard of care.”

Pickup v. Brown, 740 F.3d 1208, 1228 (9th Cir. 2014).

For example, “[a] doctor may not counsel a patient to rely on quack

medicine. The First Amendment would not prohibit the doctor’s loss of license for

doing so.” Id. (internal quotation marks omitted). “When a drug is banned, . . . a

doctor who treats patients with that drug does not have a First Amendment right to

speak the words necessary to provide or administer the banned drug.” Id. at 1229.

A doctor might face malpractice liability for communicating an inaccurate

diagnosis to a patient, or for failing to timely communicate an accurate diagnosis.

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A doctor might face malpractice liability for giving a patient improper instructions,

or for failing to provide a patient with proper instructions. In all of these scenarios,

a court might hold a doctor liable for actions which involve speech and, given such

state action, presumably infringe the doctor’s First Amendment rights. With this in

mind, we proceed to evaluate the Act’s constitutionality.

C.

We find that the Act is a valid regulation of professional conduct that has

only an incidental effect on physicians’ speech. As such, the Act does not facially

violate the First Amendment. 12 To define the standards of good medical practice

and provide for administrative enforcement of those standards is well within the

State’s long-established authority to regulate the professions. See generally Barsky

v. Bd. of Regents, 347 U.S. 442, 449, 74 S. Ct. 650, 654, 98 L. Ed. 829 (1954)

(holding that states may regulate “all professions concerned with health”); Semler

v. Oregon State Bd. of Dental Exam’rs, 294 U.S. 608, 611, 55 S. Ct. 570, 571, 79

12

We note that, insofar as individual Plaintiffs are concerned that their particular practice

of asking questions about firearm ownership and providing individualized firearm safety

counseling (in the manner that they did prior to the Act’s passage) constitutes a “close case,”

they may seek an advisory opinion from the Board to determine whether they will face discipline

for engaging in that practice. Florida law provides that “[a]ny substantially affected person may

seek a declaratory statement regarding an agency’s opinion as to the applicability of a statutory

provision, or of any rule or order of the agency, as it applies to the petitioner’s particular set of

circumstances.” Fla. Stat. § 120.565(1). Plaintiffs do not, however, challenge the Act here as

applied to their specific conduct, but rather argue that the Act is invalid on its face.

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L. Ed. 1086 (1935) (“That the state may regulate the [professions] . . . and to that

end may . . . establish supervision by an administrative board, is not open to

dispute.”).

Moreover, as discussed above, and as Justice White observed in Lowe v.

S.E.C., “[t]he power of government to regulate the professions is not lost whenever

the practice of a profession entails speech.” 472 U.S. 181, 228, 105 S. Ct. 2557,

2582, 86 L. Ed. 2d 130 (1985) (White, J., concurring in the result). Rather, “[a]

statute that governs the practice of an occupation is not unconstitutional as an

abridgement of the right to free speech, so long as any inhibition of that right is

merely the incidental effect of observing an otherwise legitimate regulation.”

Locke v. Shore, 634 F.3d 1185, 1191 (11th Cir. 2011) (quoting Accountant’s

Soc’y. of Va. v. Bowman, 860 F.2d 602, 604 (4th Cir. 1988) (relying on Justice

White’s reasoning in Lowe to uphold a state statute restricting the use of certain

terms in the work product of persons not licensed as certified public accountants)).

As a general matter, of course, speech by professionals is not immune from

the protections of the First Amendment. See, e.g., Fla. Bar v. Went For It, Inc.,

515 U.S. 618, 634–35, 115 S. Ct. 2371, 2381, 132 L. Ed. 2d 541 (1995). These

protections are at their apex when a professional speaks to the public on matters of

public concern; they approach a nadir, however, when the professional speaks

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privately, in the course of exercising his or her professional judgment, to a person

receiving the professional’s services. As Justice White explained in the context of

a licensing scheme for professional investment advisors,

One who takes the affairs of a client personally in hand and purports

to exercise judgment on behalf of the client in the light of the client’s

individual needs and circumstances is properly viewed as engaging in

the practice of a profession. Just as offer and acceptance are

communications incidental to the regulable transaction called a

contract, the professional’s speech is incidental to the conduct of the

profession. . . . Where the personal nexus between professional and

client does not exist, and a speaker does not purport to be exercising

judgment on behalf of any particular individual with whose

circumstances he is directly acquainted, government regulation ceases

to function as legitimate regulation of professional practice with only

incidental impact on speech; it becomes regulation of speaking or

publishing as such, subject to the First Amendment’s command that

“Congress shall make no law . . . abridging the freedom of speech, or

of the press.”

Lowe, 472 U.S. at 232, 105 S. Ct. at 2584 (White, J., concurring in the result)

(footnote omitted); see also Locke, 634 F.3d at 1191 (“There is a difference, for

First Amendment purposes, between regulating professionals’ speech to the public

at large versus their direct, personalized speech with clients.” (citing Lowe, 472

U.S. at 232, 105 S. Ct. at 2584 (White, J., concurring in the result))).

Thus, “[t]he key to distinguishing between occupational regulation and

abridgment of [F]irst [A]mendment liberties is in finding ‘a personal nexus

between professional and client,’” Bowman, 860 F.2d at 605 (quoting Lowe, 472

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U.S. at 232, 105 S. Ct. at 2584 (White, J., concurring in the result)), where the

professional is “exercis[ing] judgment on behalf of the client in the light of the

client’s individual needs and circumstances,” Lowe, 472 U.S. at 232, 105 S. Ct. at

2584 (White, J., concurring in the result).

Accordingly, we afford speech to the public “by attorneys on public issues

and matters of legal representation the strongest protection our Constitution has to

offer.” Went For It, Inc., 515 U.S. at 634, 115 S. Ct. at 2381 (citing Gentile v.

State Bar of Nev., 501 U.S. 1030, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991)). At

the opposite end of the spectrum, there is no “constitutional infirmity” where the

speech rights of physicians are “implicated, but only as part of the practice of

medicine, subject to reasonable licensing and regulation by the State.” Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884, 112 S. Ct. 2791, 2824, 120 L.

Ed. 2d 674 (1992) (plurality opinion of O’Connor, Kennedy, and Souter, JJ.)

(citations omitted) (holding that a provision of a Pennsylvania statute requiring

health care providers to inform patients of the availability of certain information

regarding abortion and childbirth prior to obtaining an abortion was a valid

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regulation of the practice of medicine and so did not violate physicians’ First

Amendment right not to speak).13

For example, in Locke we applied Justice White’s framework in Lowe in

upholding a requirement that professional interior designers obtain a license to

practice. Locke, 634 F.3d at 1191–92. We noted that, although the practice of

interior design involves speech, the license requirement regulates only

“professionals’ . . . direct, personalized speech with clients.” Id. at 1191 (citing

Lowe, 472 U.S. at 232, 105 S. Ct. at 2584) (White, J., concurring in the result)).

“Because of this ‘personal nexus’ between the designer and the client and because

the designer is exercising judgment on behalf of the client in light of the client’s

specific circumstances, Florida’s law is properly viewed as a legitimate regulation

of professional practice.” Id. at 1197 (Black, J., concurring). Therefore, we held,

“the license requirement governs occupational conduct, and not a substantial

amount of protected speech, [and so] it does not implicate constitutionally

13

The section of Planned Parenthood of Southeast Pennsylvania v. Casey upholding the

Pennsylvania statute’s informed consent provision, which required physicians to provide patients

with certain information prior to obtaining an abortion, is found in the plurality opinion written

by Justices O’Connor, Kennedy, and Souter. 505 U.S. 833, 881–85, 112 S. Ct. 2791, 2822–25,

120 L. Ed. 2d 674 (1992). However, both Chief Justice Rehnquist—joined by Justices White,

Scalia, and Thomas—and Justice Scalia—joined by Chief Justice Rehnquist and Justices White

and Thomas—wrote separately to concur in upholding this provision. Id. at 967, 981, 112 S. Ct.

at 2867, 2875.

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protected activity under the First Amendment.” Id. at 1191 (majority opinion)

(internal quotation marks omitted).

Insofar as the inquiry provision of the Act, § 790.338(2), regulates physician

speech, it does so where the “personal nexus between professional and client” is

perhaps at its most significant: within the confines of the physician’s examination

room, where the physician exercises his or her judgment to deliver professional

treatment and advice to a particular patient, tailored to that patient’s personal

circumstances, in private. See Lowe, 472 U.S. at 232, 105 S. Ct. at 2584 (White,

J., concurring in the result). Thus, although the Act restricts physicians’ ability to

ask questions about firearm ownership when doing so would be irrelevant to

patients’ medical care, it does so only in the service of defining the practice of

good medicine, in the context of the very private, physician-patient relationship.

The inquiry provision places no burdens whatsoever on physicians’ ability to speak

outside the physician-patient relationship. 14 The Act simply informs physicians

that inquiring about a private matter irrelevant to medical care is not part of the

practice of good medicine, and that, as always, a physician may face discipline for

not practicing good medicine. Therefore, the inquiry provision of the Act is a

14

For example, a physician would not face discipline under the Act for giving a lecture,

publishing a pamphlet, or speaking to a person who is not a patient about firearm safety.

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regulation of professional conduct that implicates physicians’ speech only “as part

of the practice of medicine, subject to reasonable licensing and regulation,” and

does not offend the First Amendment. See Casey, 505 U.S. at 884, 112 S. Ct. at

2824 (plurality opinion).

The Act’s record-keeping provision, § 790.338(1), is similarly a valid

regulation of professional conduct. Here too, the Act regulates one aspect of the

making of records within the confines of the physician-patient relationship. A

medical record is merely a reduction to writing of a physician’s course of treatment

of his or her patient, based on his or her professional judgment, and tailored to the

patient’s personal circumstances. Thus, to the extent that the record-keeping

provision implicates speech, it is non-public, personalized speech made by a

physician in the course of using his or her professional judgment to care for a

particular patient. Accordingly, insofar as the making of medical records has a

speech aspect, it also occurs where the “personal nexus between professional and

client” is at its most significant, and so the Act may regulate it without running

afoul of the First Amendment. See Lowe, 472 U.S. at 232, 105 S. Ct. at 2584

(White, J., concurring in the result).

We acknowledge that a business’s record-keeping activities are not

categorically excluded from the protections of the First Amendment. As Plaintiffs

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point out, in Sorrell v. IMS Health Inc., the Supreme Court held that “the creation

and dissemination of information are speech within the meaning of the First

Amendment”, 131 S. Ct. at 2667, and that “[a]n individual’s right to speak is

implicated when information he or she possesses is subjected to ‘restraints on the

way in which the information might be used’ or disseminated,” id. at 2665 (quoting

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32, 104 S. Ct. 2199, 81 L. Ed. 2d 17

(1984)). Thus, the Court found that a Vermont statute that restricted the sale,

disclosure, and use for marketing purposes of pharmacy records that reveal

prescribing practices of individual doctors imposed a content-based regulation on

protected expression, and, applying heightened scrutiny, struck down the statute.

Id. at 2672.

We note, however, that in Sorrell, the statute in question restricted the

manner in which pharmacies could disseminate business records to third parties or

use them in a way which involved communicating their contents to third parties.

In contrast, the Act does not clearly prohibit the dissemination of information.

Plaintiffs characterize the act of entering information in a patient’s record as

“communicating in writing with the patient’s current and future care-providers.”

Plaintiffs’ Br. at 32. However, whatever communicative function medical records

serve is, with only limited exception, contained within the medical profession—

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physicians do not, of course, make medical records for public consumption.

Moreover, what health care providers may do with medical records is, of course,

already highly regulated. See, e.g., Health Insurance Portability and

Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936; § 456.057.

Thus, the reasoning of Sorrell is inapposite. The Act merely recognizes that good

medical practice does not require the keeping of irrelevant records. Any burden

the record-keeping provision may place on physicians’ ability to create information

in the form of medical records or to communicate such information to other health

care providers is incidental to the Act’s regulation of the practice of medicine.

The Act’s discrimination provision, § 790.338(5), also regulates professional

conduct within the physician-patient relationship. Although physician

discrimination could potentially involve speech, on balance discrimination

involves conduct. To the extent that the discrimination provision does prohibit

conduct involving physician speech, the same analysis applies as to its place within

the private physician-patient relationship, where the “personal nexus between

professional and client” is at its strongest. See Lowe, 472 U.S. at 232, 105 S. Ct. at

2584 (White, J., concurring in the result). Thus, the discrimination provision is

also a valid regulation of professional conduct that only incidentally—if at all—

affects physician speech.

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The Act’s harassment provision, § 790.338(6), similarly targets professional

conduct within the physician-patient relationship. Harassment can involve speech,

but any speech that the harassment provision reaches is—like that involved in the

Act’s other provisions—private, personalized speech between a physician and

patient, involving the physician’s professional judgments and tailored to the

patient’s individual circumstances. Of course, harassing speech may in some cases

be protected by the First Amendment, such as when such speech is made in a

public place regarding a matter of public concern. See Snyder v. Phelps, ___ U.S.

___, 131 S. Ct. 1207, 1219, 179 L. Ed. 2d 172 (2011) (holding that picketers at

military funerals who held signs communicating their belief that God hates the

United States for its tolerance of homosexuality were shielded by the First

Amendment from tort liability because this activity constituted speech in “a public

place on a matter of public concern”). Although we accept that firearm safety may

be a matter of public concern, the reasoning of Snyder is inapposite in the context

of a regulation of professional conduct that provides that the privacy of a

physician’s examination room is not an appropriate forum for unrestricted debate

on such matters. Thus, the harassment provision is also a valid regulation of

professional conduct that only incidentally affects speech.

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Plaintiffs argue that the cases establishing that professional regulations may

incidentally burden speech without offending the First Amendment concern

licensing and supervision requirements.15 The purpose of these requirements,

Plaintiffs explain, is to “shield[] the public against the untrustworthy, the

incompetent, or the irresponsible, or against unauthorized representation of

agency.” Thomas v. Collins, 323 U.S. 516, 545, 65 S. Ct. 315, 329, 89 L. Ed. 430

(1945) (Jackson, J., concurring). In contrast, Plaintiffs contend, the Act directly

targets physicians’ speech about firearms and so any speech restriction cannot be

merely incidental.

15

The Dissent would have the reasoning as to why a state may regulate a professional’s

personalized, one-to-one speech with a client as part of its regulation of the profession—as set

forth in Justice White’s concurrence in Lowe v. S.E.C., 472 U.S. 181, 105 S. Ct. 2557, 86 L. Ed.

2d 130 (1985), and cited in our decision in Locke v. Shore, 634 F.3d 1185 (11th Cir. 2011)—

apply only where the law at issue is a licensing scheme regulating entry into the profession, the

incidental impact on speech is felt only by unlicensed, would-be practitioners, and the burden on

speech is content-neutral.

We do not find the reasoning set forth in Justice White’s Lowe concurrence and in Locke

valid only in such a narrow context. As we have explained, see supra section III.B, it is

uncontroversial that a state may impose discipline on professionals for all manner of activity that

involves the professional speaking with a client. Justice White’s concurrence in Lowe merely

helps explain why this is so. Casey affirms that states may directly regulate what physicians say

to their patients “as part of the practice of medicine.” 505 U.S. at 884, 112 S. Ct. at 2824

(plurality opinion). Finally, as we will discuss in more detail, the Ninth Circuit has already

drawn a line from Justice White’s reasoning in Lowe to the informed consent provision the

Supreme Court upheld in Casey, and invoked this reasoning in upholding a state statute that

directly regulates what physicians may say to their patients. See Pickup v. Brown, 740 F.3d

1208, 1227–29 (9th Cir. 2014).

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However, it is well-established “that a state’s legitimate concern for

maintaining high standards of professional conduct extends beyond initial

licensing.” Barsky, 347 U.S. at 451, 74 S. Ct. at 655. In Casey, the Supreme

Court—although without invoking the “personal nexus” framework set forth in

Justice White’s Lowe concurrence and applied by this Court in Locke—upheld a

statutory provision that directly regulated physicians’ conversations with patients

as a valid regulation of the practice of medicine. Casey, 505 U.S. at 884, 112 S.

Ct. at 2824 (plurality opinion). 16 We are not convinced that a licensing

16

Of course, the Supreme Court upheld the informed consent provision of the

Pennsylvania statute at issue in Casey on several other grounds, including that the information

the provision requires physicians to provide regarding abortion and childbirth is truthful and non-

misleading, that the provision furthers an important interest in protecting the life of the unborn,

and that the provision did not “not prevent the physician from exercising his or her medical

judgment,” which the Court attributed to the statute’s safe harbor, under which a physician need

not provide the information if doing so would adversely affect the health of the patient (not

unlike the safe harbor of the Act’s inquiry provision, under which physicians may inquire as to

firearms when doing so is relevant to medical care or safety). See Casey, 505 U.S. at 881–87,

112 S. Ct. at 2822–26 (plurality opinion).

We do not mean to imply that the instant case is analogous. However, the Court’s First

Amendment analysis of the informed consent provision in Casey—that the State may to some

extent regulate physician speech within the confines of the physician-patient relationship “as part

of the practice of medicine” without violating the First Amendment, see id. at 884, 112 S. Ct. at

2824 (plurality opinion)—stands on its own, and applies here, despite the fact that the Act

prohibits inquiries and record-keeping about irrelevant information, rather than requires

discussion of relevant information. That the Pennsylvania statute’s informed consent provision

required the disclosure of truthful, non-misleading information and did not interfere with

physicians’ judgment was not, as Plaintiffs suggest, the basis for the Court’s determination that

the provision did not violate the First Amendment. Rather, the Court considered these factors in

determining, respectively, that the statute did not impose an undue burden with regard to

obtaining an abortion, and did not “interfere[] with a constitutional right of privacy between a

pregnant woman and her physician.” Id. at 883, 112 S. Ct. at 2823–24 (plurality opinion).

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requirement is the only form of professional regulation that may validly touch on

professional speech.

In Pickup v. Brown, the Ninth Circuit invoked Casey together with Justice

White’s Lowe concurrence in rejecting a First Amendment challenge to a statute

that directly regulated what a healthcare provider may say to a patient. Pickup,

740 F.3d at 1227–29. In Pickup, plaintiffs—practitioners, advocacy organizations,

patients, and patients’ parents—challenged a California statute that prohibited

state-licensed mental health providers from engaging in therapy with a minor in an

effort to change the minor’s sexual orientation. Id. at 1222–24. The Ninth Circuit

The Dissent suggests that the Court in Casey, without explaining that it was doing so,

applied intermediate scrutiny in reviewing the informed consent provision. However, the

language the Dissent cites to support this reading of Casey is, as discussed above, directed at

other issues and is set forth in the opinion before the Court turned to its discussion of the First

Amendment, noting that the First Amendment issue was “[a]ll that is left of petitioners’

argument” and then dispatching of that argument in a short paragraph explaining that there is “no

constitutional infirmity” because the provision reaches physician speech only as part of a

reasonable regulation of the practice of medicine. Id. at 885, 112 S. Ct. at 2823–24 (plurality

opinion).

The Dissent also suggests that, even if Casey applied something less than intermediate

scrutiny, Casey involved compelled speech whereas the Act involves a prohibition on speech,

and so a more exacting test is required here. See Zauderer v. Office of Disciplinary Counsel of

Sup. Ct. of Ohio, 471 U.S. 626, 651, 105 S. Ct. 2265, 2282, 85 L. Ed. 2d 652 (1985) (subjecting

a provision of disciplinary rules prohibiting certain subject matter in attorney advertising to

intermediate scrutiny and a provision compelling inclusion of certain subject matter to a less

demanding “reasonably related to the State’s interest” standard). However, we do not find this

distinction compelling. Zauderer involved a regulation of attorney advertising to the public and

not of, as here, a professional’s one-on-one interaction with his or her client. Moreover, a state’s

interest in regulating the practice of medicine is no less important when a state prohibits

physician activity than when it compels physician activity.

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upheld the statute as a valid regulation of professional conduct that has only

“incidental effect on speech.” Id. at 1229.

In so holding, the Ninth Circuit recognized a “continuum” along which “the

First Amendment rights of professionals, such as doctors and mental health

providers” may be evaluated. Id. at 1227. The Ninth Circuit noted that “where a

professional is engaged in a public dialogue,” this represents “the high end of the

continuum, where First Amendment protection is greatest.” Id. (citing Lowe, 472

U.S. at 232, 105 S. Ct. at 2584 (White, J., concurring)). The Ninth Circuit placed

the requirement that health care providers communicate certain information to

patients that was challenged in Casey “[a]t the midpoint of the continuum,” noting

that the speech at issue there took place “within the confines of a professional

relationship.” Id. at 1228. Citing the reasoning of Justice White’s Lowe

concurrence, the Ninth Circuit noted that:

Outside the professional relationship, such a requirement would

almost certainly be considered impermissible compelled

speech. . . . [However,] the First Amendment tolerates a substantial

amount of speech regulation within the professional-client

relationship that it would not tolerate outside of it. And that toleration

makes sense: When professionals, by means of their state-issued

licenses, form relationships with clients, the purpose of those

relationships is to advance the welfare of the clients, rather than to

contribute to public debate.

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Id. at 1228–29 (citing Lowe, 472 U.S. at 232, 105 S. Ct. at 2584 (White, J.,

concurring)). The Ninth Circuit proceeded to locate the therapy prohibited by the

California statute even lower on the continuum of First Amendment protections

than the activity at issue in Casey, describing it as a “regulation of professional

conduct, where the state’s power is great, even though such regulation may have an

incidental effect on speech.” Id. at 1229.

However, the Ninth Circuit reached a different conclusion in an earlier case

with regard to a federal policy that threatened physicians with administrative

discipline—including revocation of a physician’s license—for recommending that

a patient use medical marijuana, holding that this policy interfered with expression

protected by the First Amendment. Conant v. Walters, 309 F.3d 629, 632 (9th Cir.

2002).

In Pickup, the Ninth Circuit distinguished Conant by noting that in Conant,

it was the policy against physicians recommending marijuana that offended the

First Amendment. Pickup, 740 F.3d at 1226. The policy prohibiting physicians

from prescribing or distributing marijuana was unchallenged. Id. Thus, “the

demarcation between conduct and speech in Conant was clear. . . . [T]he policy

against merely ‘recommending’ marijuana was both [a] content- and viewpoint-

based” restriction on speech. Pickup, 740 F.3d at 1226. In Pickup, however, the

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Ninth Circuit held that the therapy targeted by the California statute was itself

treatment, and so the statute “regulates conduct. It bans a form of treatment for

minors; it does nothing to prevent licensed therapists from discussing the pros and

cons of [sexual orientation change efforts] with their patients.” Id. at 1229.

Plaintiffs characterize the Act as regulating not treatment, as in Pickup, but

speech per se, as in Conant. However, the line between treatment and

communication about treatment is not necessarily so clear. In some cases, medical

treatment—such as may occur when, for example, a physician attempts to help a

patient cease smoking—may begin with an inquiry (“do you smoke?”), followed

by a recommendation and some amount of counseling (“you should quit smoking

because smoking has been shown to cause cancer”). In many cases, a physician’s

efforts may go no further than this. Nevertheless, the physician would almost

certainly characterize an attempt to convince a patient to cease smoking as part of

his or her treatment of that patient.

Thus, although the Ninth Circuit chose to drawn a bright line between the

recommendation at issue in Conant and the therapy at issue in Pickup, we do not

find such a line here. A physician’s inquiry about the presence of firearms in a

patient’s home may be viewed as the opening salvo in an attempt to treat any

issues raised by the presence of those firearms. When a physician enters a

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patient’s firearm ownership status into the patient’s medical records—along with

the rest of the patient’s course of treatment—this is part and parcel with the

physician’s treatment of the patient. Moreover, under the Act, physicians remain

largely free—up to the point of unnecessarily harassing a patient about the

patient’s ownership of firearms—to discuss firearm safety, make recommendations

with regard to firearm safety, and express opinions about firearms. Cf. Pickup, 740

F.3d at 1229 (“[T]he law allows discussions about treatment, recommendations to

obtain treatment, and expressions of opinions about [sexual orientation change

efforts] and homosexuality.”). The Act simply targets inquiry and record-keeping,

along with related harassment and discrimination.

Furthermore, unlike the state statute at issue here (and the one upheld in

Pickup), Conant involved a federal policy that purported to regulate physicians’

conduct, and in upholding an injunction against enforcement of the policy, the

Ninth Circuit took into account that “states [are] the primary regulators of

professional conduct.” Conant, 309 F.3d at 639.

Thus, we do not find that the reasoning of Conant mandates a different result

in our analysis of the Act. Nor do we find Pickup inapposite because of the Ninth

Circuit’s characterization of the therapy prohibited in Pickup as pure conduct

deserving of even less First Amendment protection than the compelled disclosure

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at issue in Casey. Pickup is instructive as a recent example of a court applying

Justice White’s reasoning in Lowe in conjunction with Casey to uphold a

regulation of professional conduct with incidental effect on speech, outside of the

context of a license requirement.

The Act as a whole “governs occupational conduct, and not a substantial

amount of protected speech.” See Locke, 634 F.3d at 1191 (internal quotation

marks omitted). Any burden the Act places on speech is thus incidental to its

legitimate regulation of the practice of medicine. 17

Moreover, the Dissent’s assertion that the Act violates the First Amendment

because it targets and prohibits physicians’ speech on the topic of firearms is

actually belied by the plain language of the Act itself. As noted, so long as

17

In reaching this conclusion, we are not, as the Dissent claims, declaring “a new

category of speech immune from First Amendment review.” Dissenting op. at 85. As discussed

above, see supra section III.B, our holding simply recognizes that a state may—just as it

routinely does in state court malpractice and tort actions—impose discipline on a physician for

activities that the state deems bad medicine even when those activities involve the physician

speaking, and that when a state does so the First Amendment generally does not provide the

physician with a shield.

Neither are we, as the Dissent suggests, creating a rule whereby any law burdening

speech—such as a law barring doctors from discussing the Affordable Care Act,

Medicare/Medicaid, medical malpractice laws, or any other topic—will avoid First Amendment

scrutiny so long as the law applies within the confines of a one-on-one professional relationship.

We note that the Act does not ban discussion of any topic, but only irrelevant inquiry, record-

keeping, and related harassment and discrimination. In any case, we must decide this case based

on the facts before us, and in doing so we need not—indeed, we must not—speculate as to the

constitutionality of hypothetical laws.

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physicians do not ask patients irrelevant questions about their firearm ownership,

the Act nowhere prohibits physicians from discussing firearm safety with their

patients, except in the case where such firearms counseling might rise to the level

of unnecessary harassment prohibited by the Act. Indeed, a physician need not

find out whether his patient owns a firearm in order to provide information to that

patient on any possible health consequences that might go along with firearm

ownership. A physician might offer such counseling by providing literature on

firearm safety that does not make inquiries of patients or by briefly advising

patients of safe firearms storing practices without demanding answers from

patients as to whether they own firearms at home. Counseling, without inquiring,

as long as it does not harass, maintains patients’ right to privacy regarding firearms

and at the same time enables physicians to advise patients on safe practices. As

such, the Act actually neither infringes on physicians’ rights to speak on a topic of

their choosing nor infringes on the rights of those patients who would welcome

information on firearm safety.

For the same reasons, we reject Plaintiffs’ argument that the Act is

overbroad. “In the First Amendment context, . . . a law may be invalidated as

overbroad if ‘a substantial number of its applications are unconstitutional, judged

in relation to the statute’s plainly legitimate sweep.’” United States v. Stevens,

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559 U.S. 460, 473, 130 S. Ct. 1577, 1587, 176 L. Ed. 2d 435 (2010) (quoting

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, n. 6, 128

S. Ct. 1184, 170 L. Ed. 2d 151 (2008)). “The overbreadth doctrine is ‘strong

medicine’ that generally should be administered ‘only as a last resort.’” Locke,

634 F.3d at 1192 (quoting United States v. Williams, 553 U.S. 285, 293, 128 S. Ct.

1830, 1838, 170 L. Ed. 2d 650 (2008)).

Plaintiffs argue that that Act is overbroad because it regulates every

practitioner’s speech on the subject of firearms, and appears to preclude even

consented-to inquiries or record-keeping regarding firearms. However, as

discussed, the Act does not prohibit relevant inquiries and record-keeping, and the

State may legitimately regulate the practice of medicine to exclude irrelevant

inquiries and record-keeping. Because the Act “is a professional regulation with a

merely incidental effect on protected speech, we cannot say that its impermissible

applications are substantial relative to its plainly legitimate sweep.” Id. Thus, the

Act is not overbroad.18

18

Because it would not alter our holding, we need not address the State’s argument that

the discrimination and harassment provisions of the Act are not overbroad because these

provisions are indistinguishable from valid antidiscrimination regulations such as Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17 (1976), and the Americans with

Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213 (1994).

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Accordingly, we find Plaintiffs’ claims that the Act facially violates the First

Amendment without merit. The State may validly regulate the practice of

medicine to protect patients’ privacy. Any speech that the Act reaches takes place

entirely within the confines of the physician-patient relationship, where the

“personal nexus between professional and client” is strong, and so is entirely

incidental to the Act’s regulation of physicians’ professional conduct. See Lowe,

472 U.S. at 232, 105 S. Ct. at 2584 (White, J., concurring in the result).

In reaching this conclusion, we note that we are not curtailing Plaintiffs’

First Amendment rights. Plaintiffs remain free to assert the First Amendment as

an affirmative defense in any proceeding brought against them based upon speech

made in the course of treatment that fell outside the bounds of good medical care.

By rejecting Plaintiffs’ facial challenge to the Act, we are simply refusing to

provide Plaintiffs with a declaration that such a defense will be successful.

Thus, we hold that the District Court erred in finding that the Act facially

violates the First Amendment.

D.

We also find that the Act is not unconstitutionally vague. Under “[t]he void-

for-vagueness doctrine[,] . . . ‘a statute which either forbids or requires the doing of

an act in terms so vague that [persons] of common intelligence must necessarily

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guess at its meaning and differ as to its application, violates the first essential of

due process of law.’” Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301,

1310 (11th Cir. 2009) (third alteration in original) (quoting Roberts v. U.S.

Jaycees, 468 U.S. 609, 629, 104 S. Ct. 3244, 3256, 82 L. Ed. 2d 462 (1984)).

Thus, a statute is unconstitutionally vague if “it leaves the public uncertain as to

the conduct it prohibits or leaves judges and jurors free to decide, without any

legally fixed standards, what is prohibited and what is not in each particular case.”

Giaccio v. Pennsylvania, 382 U.S. 399, 402–03, 86 S. Ct. 518, 520–21, 15 L. Ed.

2d 447 (1966).

As an initial matter, we note that the Act provides only for civil penalties in

the form of disciplinary action by the Board—physicians do not face criminal

penalties for the Act’s violation. “The Supreme Court has warned against the

mechanical application of vagueness doctrine, emphasizing that . . . there should be

‘greater tolerance of enactments with civil rather than criminal penalties because

the consequences of imprecision are qualitatively less severe.’” Harris, 564 F.3d at

1310 (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 498–99, 102 S. Ct. 1186, 1193, 71 L. Ed. 2d 362 (1982)).19

19

Plaintiffs point out that the Supreme Court has held that “a content-based regulation of

speech . . . raises special First Amendment concerns because of its obvious chilling effect on free

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Plaintiffs argue that the record-keeping and inquiry provisions of the Act,

§ 790.338(1), (2), are vague because the Act does not provide sufficient notice as

to when record-keeping or inquiry regarding firearms is “relevant” to medical care

or safety. Plaintiffs note that the Act does not specify whether a physician must

make a particularized finding of relevance for each patient or whether a

physician’s general belief that firearms are always relevant will suffice, and does

not specify if a physician must believe that firearm information is relevant at the

time of inquiry and record-keeping, or if a good faith belief that the information

may later become relevant (such as in the practice of preventative medicine)

satisfies the requirements of the Act. Plaintiffs contend that, because a reading that

information about firearms is always relevant would render the Act meaningless,

physicians reasonably fear that the Act requires some higher, unspecified level of

relevance. See In re Davis, 565 F.3d 810, 823 (11th Cir. 2009) (“We cannot read

statutory language in a way that renders it wholly meaningless or nonsensical.”).

speech.” Reno v. Am. Civil Liberties Union, 521 U.S. 844, 871–72, 117 S. Ct. 2329, 2344, 138

L. Ed. 2d 874 (1997). Thus, if a “law interferes with the right of free speech . . . , a more

stringent vagueness test should apply.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 499, 102 S. Ct. 1186, 1193–94, 71 L. Ed. 2d 362 (1982). However, because

the Act is not a content-based regulation of speech but rather a regulation of professional conduct

that only incidentally impacts speech, we need not apply a more stringent version of our

vagueness analysis.

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We find recourse to plain meaning resolves the issue. “Relevant” means

“[r]elated to the matter at hand; to the point; pertinent.” American Heritage

Dictionary of the English Language 1098 (William Morris, ed., 1969). An

ordinary person of common intelligence need not guess as to the meaning of the

term. It is apparent that the Act’s relevancy standard is only vague insofar as

“relevancy” is necessarily determined on a case-by-case basis—that is, whether

information is related to the matter at hand depends entirely on the specifics of the

matter at hand. A reading that firearms information is relevant in every case

would, indeed, render the inquiry and record-keeping provisions superfluous, but

this problem is easily avoided by adhering to a plain-meaning construction of

relevancy as an ad hoc determination, requiring a physician to base his or her

calculation as to the relevancy of a patient’s firearms ownership status on

particularized information about the patient. By employing a flexible “relevancy”

standard, the Act provides physicians with the freedom to make inquiries and

record information regarding firearms whenever doing so would be part of the

practice of good medicine.

For example, under the record-keeping provision, the Act prohibits

recordation of firearm information only if the physician “knows” that the

information is not relevant. § 790.338(1). This simply means that a physician may

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not record a patient’s firearm-ownership status unless the physician has knowledge

that—because of some particularized information about the individual patient, for

example, that the patient is suicidal or has violent tendencies—the patient’s

firearm-ownership status pertains to the patient’s medical care or safety, or the

safety of others. Therefore, the record-keeping provision is not vague.

The key to the inquiry provision’s relevancy clause is that a physician must

believe in “good faith” that firearm ownership information is relevant to medical

care or safety. § 790.338(2). Thus, a physician may make firearms inquiries of

any or all patients, so long as he or she does so with the good faith belief—based

on the specifics of the patient’s case—that the inquiry is relevant to the patient’s

medical care or safety, or the safety of others. If, for example, the physician seeks

firearm information to suit an agenda unrelated to medical care or safety, he or she

would not be making a “good faith” inquiry, and so the Act plainly directs him to

refrain from inquiring. Thus, the inquiry provision is not vague.

Plaintiffs argue that the discrimination provision of the Act, § 790.338(5), is

vague because the Act does not define “discrimination.” Plaintiffs point out that,

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given the context of the Act’s passage,20 one might expect this provision to

prohibit a physician from terminating his or her care of a patient based on the

patient’s refusal to answer questions about firearm ownership, but that another,

unchallenged provision of the Act makes it explicit that the Act does not alter the

rule that a physician is free to cease providing services to a patient for any reason.

See § 790.338(4) (“A patient’s decision not to answer a question relating to the

presence or ownership of a firearm does not alter existing law regarding a

physician’s authorization to choose his or her patients.”). Thus, Plaintiffs contend,

physicians are left to guess what activity would be prohibited by the discrimination

provision.

We agree with the District Court that the term “discriminate” has an

ordinary meaning that is readily clear to persons of common intelligence. In this

context, “discriminate” means “[t]o act on the basis of prejudice.” American

Heritage Dictionary of the English Language, supra, at 376. Under this plain-

meaning reading, the discrimination provision of the Act simply means that

physicians may not provide a lower level of medical care on the basis of a patient’s

firearm-ownership status. Although the particulars may vary—a physician could

20

In particular, Plaintiffs point out that the Act was in large part passed in response to the

incident in Ocala in which a pediatrician terminated care of a patient because the patient’s

mother refused to answer the pediatrician’s questions regarding firearm ownership.

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discriminate against firearm-owning patients by, for example, making them wait an

excessively long time for an appointment, or by refusing them equal opportunities

for referrals to specialists—the discrimination provision is sufficiently clear in

apprising physicians that they may not provide firearm-owning patients with less

medical care than they would other patients, in any circumstances. Thus, the

discrimination provision of the Act is not vague.

Finally, Plaintiffs argue that the harassment provision of the Act,

§ 709.338(6), is vague because the Act does not define “unnecessarily harassing.”

Plaintiffs contend that patients may hold diverse views as to what constitutes

unnecessary harassment. Plaintiffs argue that what conduct is prohibited thus

depends on what a particular patient understands it to be, and that the resulting

uncertainty as to what the Act prohibits “is not permissible under the First

Amendment.” See Conant, 309 F.3d at 639 (holding a statute providing for

administrative action against physicians who engage in speech that “the patient

believes to be a recommendation of marijuana” lacks the requisite narrow

specificity under the First Amendment) (citing Collins, 323 U.S. at 535, 65 S. Ct.

at 325 (striking on First Amendment grounds a statute criminalizing solicitation of

membership for certain unions without state license because the statute did not

distinguish between solicitation and advocacy, and so “put[] the speaker . . . wholly

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at the mercy of the varied understanding of his hearers and consequently of

whatever inference may be drawn as to his intent and meaning”)).

However, the term “harass” has an ordinary meaning that is readily clear to

persons of common intelligence: “harass” means “[t]o disturb or irritate

persistently.” American Heritage Dictionary of the English Language, supra, at

600. When read in the context of the Act as a whole, the harassment provision

communicates that health care providers should not disparage firearm-owning

patients, and should not continue over a patient’s objection to attempt to speak to

the patient about firearm ownership when not relevant to medical care or safety.

Like the other provisions of the Act, the harassment provision targets physicians

who wish to pursue an agenda unrelated to medical care or safety.

Although the District Court found that the modifier “unnecessarily” rendered

the harassment provision vague, we disagree. The modifier in fact allows

physicians the freedom to challenge—i.e., “harass”— patients regarding firearms

when doing so is necessary for health or safety reasons, even if the patient might

find the physicians’ advice unwelcome. For example, if a patient is suicidal, a

physician may wish to attempt to persuade the patient to remove firearms from the

patient’s home, even if the patient initially objects. Even if the patient considers

the physician’s health and safety advice related to firearms harassing, the inclusion

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of the modifier “unnecessary” leaves room for physicians to deliver such advice

when necessary, consistent with the Act’s other provisions.

Plaintiffs’ fears that physicians may face discipline for offending a patient’s

subjective sensibilities are therefore unfounded. Leaving aside that Conant and

Collins did not turn on vagueness challenges, we note that patients by themselves

cannot subject physicians to discipline. Patients may file a complaint which

triggers an investigation by the Board, or they may bring a malpractice action, but

so long as a physician is operating in good faith within the boundaries of good

medical practice, and is providing only firearm safety advice which is relevant and

necessary, he or she need not fear discipline at the hands of the Board or a money

judgment in a court of law. Thus, the harassment provision of the Act is not vague.

Persons of “common intelligence” need not guess as to the meaning of any

of the four challenged provisions of the Act. See Harris, 564 F.3d at 1310. Thus,

we hold that the District Court erred in finding the record-keeping, inquiry, and

harassment provisions void for vagueness.

IV.

Accordingly, we REVERSE the District Court’s grant of summary judgment

in favor of Plaintiffs, and VACATE the injunction against enforcement of the Act.

SO ORDERED.

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WILSON, Circuit Judge, dissenting:

Numerous medical organizations, including the American Medical

Association (AMA), view firearm related deaths and injuries as a serious public

health problem with particularly pernicious effects on children. These

organizations believe that this public health problem can be alleviated by providing

people, particularly children and their parents, with information about firearm

safety. 1 Accordingly, the AMA has, among other things, adopted a policy

encouraging “members to inquire as to the presence of household firearms as a part

of childproofing the home.” Prevention of Firearm Accidents in Children, AMA

Policy H-145.990. From the AMA’s perspective, this inquiry could not be more

vital, as the policies are specifically designed to “reduce pediatric firearm

morbidity and mortality.” Id.

Consistent with their beliefs about how best to address this public health

problem, a number of Florida doctors, including plaintiffs, followed the AMA’s

advice. They routinely spoke with patients about firearms, asking patients if

1

See Christine S. Moyer, “Public Health Approach: Physicians Aim to Prevent Gun

Violence,” American Medical News, Sept. 10, 2012, available at http://www.amednews.com.

American Medical News is published by the AMA. Moyer’s article describes efforts in the

medical community to reduce firearm related injuries by using preventive care methods that have

been used to address other public health problems such as motor vehicle accidents, smoking, and

the spread of diseases.

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firearms were present in the home in order to specifically tailor follow-up safety

information. There is no doubt that many doctors genuinely believe that these

conversations can help protect their patients and the public. Indeed, some doctors

believed these conversations to be so important that they were willing to lose the

business of patients who refused to engage.

In response to complaints by patients who found doctors’ questioning and

counseling on the subject of firearms to be irritating, offensive, and overly

political, Florida passed the Firearm Owners’ Privacy Act (Act). Simply put, the

Act is a gag order that prevents doctors from even asking the first question in a

conversation about firearms. The Act prohibits or significantly chills doctors from

expressing their views and providing information to patients about one topic and

one topic only, firearms.

Regardless of whether we agree with the message conveyed by doctors to

patients about firearms, I think it is perfectly clear that doctors have a First

Amendment right to convey that message. This Act significantly infringes upon

that right, and it is therefore subject, at the very least, to intermediate scrutiny.

Subject to this level of scrutiny, the Act cannot pass constitutional muster.

The State’s asserted interests in protecting the rights of firearm owners,

including their privacy rights, their rights to be free from harassment and

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discrimination, and their ability to access medical care, are incredibly important.

Were the Act necessary to protect those rights, I believe the Act might survive an

intermediate scrutiny challenge. But the State has offered no evidence to show that

those rights are under threat, nor is there evidence in the record suggesting that the

Act will either directly or materially advances those interests.

Further, those interests must be weighed against doctors’ rights to convey

their chosen message about firearm safety and to play their chosen role in

addressing what they view to be a public health crisis. If there is disagreement in

the medical community with the plaintiffs’ view that providing patients with

information about firearm safety is good for public health, it is certainly not

presented in the record before us. 2 Indeed, the record and common sense lead

2

At its annual meeting in August of 2012, the American Bar Association (ABA) adopted

Resolution 111,

oppos[ing] governmental actions and policies that limit the rights of physicians

and other health care providers to inquire of their patients whether they possess

guns and how they are secured in the home or to counsel their patients about the

dangers of guns in the home and safe practices to avoid those dangers.

Citing the AMA policy quoted above, the ABA specifically recognized that

[p]reventive care through safety counseling is a pillar of modern medicine, and is

vitally important to the health and welfare of patients. It is also the ethical and

legal responsibility of physicians. Failure to fulfill these duties results in a breach

of the objective standard of care owed to patients. . . . Firearms in the home are

another known risk factor that doctors may choose to discuss with their patients or

the parents of young patients.

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inexorably to the conclusion that children will suffer fewer firearm related injuries

if they—and their parents—know more about firearm safety. But now they will

know less. As a result of the Act, there is no doubt that many doctors in Florida

will significantly curtail, if not altogether cease, discussions with patients about

firearms and firearm safety.

Thus, while the Act does not advance the State’s asserted interests, the Act

does significantly limit doctors’ ability to speak to their patients in ways that they

believe will protect the public and save lives. The poor fit between what the Act

actually does and the interests it purportedly serves belies Florida’s true purpose in

passing this Act: silencing doctors’ disfavored message about firearm safety. This,

the State cannot do.

The district court properly invalidated the Act as a content-, speaker-, and

viewpoint-based restriction that “chills practitioners’ speech in a way that impairs

the provision of medical care and may ultimately harm the patient.” Wollschlaeger

v. Farmer, 880 F. Supp. 2d 1251, 1267 (S.D. Fla., 2012). In an unprecedented

decision, the Majority reverses and holds that this law is immune from First

Amendment scrutiny. This is so because the State labeled the speech it wished to

quell “conduct” and the speakers it wished to silence “professionals,” and because

these professionals were prohibited only from speaking privately to patients.

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Precedent firmly establishes that the speech proscribed or chilled by this Act—

speech that ranges from potentially lifesaving medical information conveyed from

doctor to patient, to political discussions between private citizens, to conversations

between people who enjoy speaking freely with each other about a host of

irrelevant topics—is protected by the First Amendment.

I would affirm the district court’s order, and I therefore respectfully dissent.

I.

The Act contains four provisions at issue in this appeal. (1) The “record

keeping provision” states that doctors cannot record firearm-related information in

medical files that they “know” not to be “relevant.” Fla. Stat. § 790.338(1). (2)

The “inquiry provision” states that doctors “shall respect a patient’s right to

privacy and should refrain” from asking patients about firearm ownership, unless

the doctor believes in good faith that the information is medically relevant. Fla.

Stat. § 790.338(2). (3) The “discrimination provision” states that practitioners

“may not discriminate” against patients on the basis of firearm ownership. Fla.

Stat. § 790.338(5). (4) Finally, the “harassment provision” states that practitioners

“shall respect a patient’s legal right to own or possess a firearm and should refrain

from unnecessarily harassing” patients about firearm ownership. Fla. Stat. §

790.338(6).

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This Act was passed in response to constituent complaints about the manner

and extent to which doctors were discussing firearm ownership with patients.

Specifically, as the State explains:

[A]ctual discrimination experienced by gun owners in Florida directly

motivated the Legislature to pass the Act. Among other things, the

Legislature heard that: a woman was given 30 days to find a new

physician after she refused to answer questions about firearms in her

home; a patient was asked by a physician to remove firearms from his

home; a facility separated a mother from her children while

interrogating them about firearms; a physician refused to care for a

nine-year-old boy because he wanted to know about firearms in the

home; citizens were falsely told that Medicaid required them to

disclose their firearm ownership and would not pay if they refused to

answer; a doctor refused to examine a child when the mother refused

to answer firearms questions; and a facility billed for services not

delivered after a family refused to answer questions about their

firearms.

These experiences show that the Legislature’s action in passing

the Act overwhelmingly was based on real concerns about protecting

constituent privacy and preventing discrimination and harassment

during doctor’s visits.

A Legislator’s own experience was similar: “After answering a

pediatrician’s question about gun ownership, the pediatrician asked that [the

Legislator] remove the gun from his home. To the [L]egislator, the doctor’s

conduct constituted ‘a political . . . attack on the constitutional right to own a . . .

firearm.’” A National Rifle Association representative also complained that

questioning patients about gun ownership “to satisfy a political agenda needs to

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stop.” The State asserts that these are examples of what the Act was designed to

stop.

Tellingly, the State attempts on appeal to narrow the scope of the Act—

though it does so inconsistently. In any event, the Supreme Court has explained

that a law restricting speech may be rendered unconstitutional based on “the

inevitable effect of [the] statute on its face . . . [or its] stated purposes.” Sorrell v.

IMS Health Inc., __ U.S. __, 131 S. Ct. 2653, 2663 (2011) (internal quotation

marks omitted). Therefore, in assessing the constitutionality of the Act, we cannot

ignore that this Act will inevitably silence doctors on the topic of firearms in all but

the rarest of circumstances. Doctors risk losing their licenses if they are found to

have violated the Act, so they cannot safely assume that the State will only

advance the narrow reading of the Act it suggests here.

In a revealing portion of its brief, the State asserts that the “Act proscribes

only inquiries within the doctor-patient relationship and recordkeeping about

firearms that is not relevant to medical and safety concerns.” 3 At this point,

3

Here is one of the State’s contradictions. Elsewhere in its briefing, the State asserts that

the inquiry provision is not, as it just stated, a proscription but is instead merely advisory. From

a doctor’s perspective, however, the Act must be treated as mandatory. Indeed, the Executive

Director of the body responsible for enforcing the Act, the Board of Medicine of the Florida

Department of Health (Board), mailed a letter to physicians stating that the inquiry provision was

mandatory. But in a change of course, the Board posted to its website shortly after Appellees

filed suit that, in fact, the provision was only advisory. The State’s argument that the provision

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difficulties arise because Appellees and the State have different definitions of

“relevant.” Many doctors and medical organizations assert that it is always

relevant to ask about—and thus, to record—firearm-ownership information. As

discussed, the AMA, as well as the American Academy of Pediatrics, its Florida

chapter, the American Academy of Family Physicians, its Florida chapter, the

American College of Physicians, and its Florida chapter all recommend providing

counseling and guidance on a variety of injury-prevention topics including firearm

safety. Doctors thus quite legitimately insist that asking firearm-related questions

as a matter of course and recording the information in medical files is good for

their patients’ health and for the public’s safety.

As the incidents discussed in the legislative history suggest, however, the

Act was apparently designed to prohibit doctors from routinely asking about

firearm ownership on prescreening, informational forms. Appellees rightly

suspect, despite the State’s present assurance to the contrary, that the standard of

is only advisory is not a bad one, because unlike other provisions which use the clearly

mandatory word “shall,” the inquiry provision uses the ambiguous word “should.” But it would

be extremely risky for doctors to rely on this interpretation, given that the timing of the Board’s

change in course suggests that it may only have been part of the State’s litigation strategy. There

are no assurances that, once this litigation ends, the Board will not revert back to its broader

interpretation. Further, the State interprets the same word (“should”) to be mandatory in the

context of interpreting the harassment provision—though the State vacillates on this

interpretation, as well.

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relevance contemplated by the Act is higher than the Appellees’ own standard.

Consequently, for purposes of assessing the Act’s constitutionality, I assume that

many doctors, absent some particularized fact or circumstance indicating that

firearm ownership is particularly relevant, will stop asking about and recording this

information.4

The Act also prohibits “discrimination” on the basis of gun ownership. One

might reasonably expect, based on the incidents that prompted passage of the Act,

that this provision bars doctors from declining to treat a patient who refuses to

answer questions regarding firearm ownership. The Act explicitly affords doctors

the continued right to refuse to treat such patients, however, see Fla. Stat. §

790.338(4), so the Legislature apparently intended to prevent other forms of

discrimination when it passed the Act. The State asserts that “actual

discrimination experienced by gun owners in Florida directly motivated the

4

It appears that the Act determines as a matter of State law that firearm ownership is not

medically relevant in all cases for preventive medicine purposes. Elsewhere in its briefing,

however, the State emphasized that the Act specifically allows doctors to ask about firearms

whenever they believe “in good faith” that the information is relevant and to record such

information unless they “know” it to be irrelevant. From this, the State concludes that “the

Legislature enabled physicians to make these inquiries of any or all patients” if the doctor holds

a different view of medical relevance than the State. This interpretation, of course, would allow

the inquiries detailed in the legislative history; precisely the same inquiries the State previously

stated that the Act was designed to prevent. Given this uncertainty, doctors who wish to ask

about firearm ownership in all cases would be taking a significant risk if they continued to do so.

A bit more is said on this point in Part IV, infra, in relation to my brief discussion on

vagueness.

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Legislature to pass the Act.” This statement is followed by the list of incidents

contained in the legislative history. As noted above, the State also explained that

the Act was passed in response to questioning about gun ownership and follow-up

recommendations to make such ownership safer, including recommendations to

remove guns from the home entirely. These discussions, which some constituents

and Legislators perceive to be a political attack, could be viewed as discriminatory.

Based on their status as gun owners, some patients are subjected to uncomfortable

conversations about firearms, while others are not. Because the State explicitly

acknowledges that the legislative history provides examples of what constitutes

discrimination, doctors reasonably fear punishment for discrimination under the

Act for speaking as the doctors did in the above-cited incidents. Accordingly, the

discrimination provision, like the record keeping and inquiry provisions, will cause

doctors not to ask about or make recommendations regarding firearm ownership,

particularly if patients are initially resistant to information on this topic. 5

5

Given the overall purpose of the Act and the Act’s legislative history—considered in

light of the State’s assertions that that legislative history is illustrative of what constitutes

“discrimination”—we must view the harassment and discrimination provisions as designed to

reinforce the inquiry and record keeping provisions. Moreover, the fact that the Act explicitly

allows the primary form of discrimination that actually occurred—that is, doctors turning away

patients who refused to answer questions about firearms—belies the notion that the

discrimination provision is meant to address actual discrimination experienced by firearm

owners. It may indeed prohibit some of the discriminatory conduct that the State speculates

might occur, and it would not create a constitutional problem if that is all it did. In this context,

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The harassment provision chills doctors’ speech even further. The State

explains that “the Legislature enabled physicians to make [firearm ownership]

inquiries of any or all patients, provided they do so with the belief that the inquiry

is relevant to the patient’s care. Logically then, if a physician seeks firearms

information to suit only a political agenda unrelated to the patient’s well-being, . . .

he may be unnecessarily harassing his patient . . . .” As Appellees’ brief explains,

consistent with AMA policy, many doctors believe that asking about firearm

ownership is related to the patient’s well-being in all cases, which is why questions

about firearm ownership were asked by many doctors before the passage of this

Act. As the legislative history makes clear, however, these routine inquiries and

the follow-up conversations they prompted were deemed by constituents and

Legislators to be part of an anti-firearm political agenda which the State defines in

its briefing as unnecessary harassment.

Most of the incidents discussed in the legislative history appear to involve

nothing more than a disagreement between the doctor, who perceived the gun-

related information to be relevant to the patient’s well-being, and the patient, who

perceived the information to be part of an unwelcome political attack. The

however, it is difficult to see the discrimination provision as anything other than reinforcement

of the other provisions prohibiting doctors from saying and writing certain things.

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harassment provision of the Act suggests that the State has taken the patients’ side

in this disagreement. There is nothing to suggest that the doctors’ inquiries or

messages regarding firearms were not genuinely believed to be in the patients’ best

medical interest when given. But there is evidence in the legislative history to

suggest that the harassment provision is designed to prevent these conversations

from taking place in the future. That is certainly the result it will achieve. Doctors

will largely cease inquiring into and counselling on the topic of firearms, lest they

be accused of crossing the line between providing life-saving preventive medical

information and promoting an anti-firearm political agenda.6

Under this Act, then, one group of speakers, medical professionals, is

prohibited or at least chilled from engaging in a great deal of speech about one

topic, firearms. Doctors cannot ask routine questions about firearm ownership of

6

In its initial brief, the State asserted (most, though not all of the time) that the word

“should” in the inquiry provision rendered the provision purely advisory. Regarding the

harassment provision, which included the exact same word, “should,” the State asserted that the

provision “prohibit[s] facilities and practitioners from . . . unnecessarily harassing patients who

own guns.” The same word used in the same statute rendered one provision advisory but the

other mandatory. In an effort to correct this contradiction, the State asserted in its Reply Brief

that “the Legislature provided physicians with the freedom to . . . unnecessarily harass patients

about firearms, while . . . suggesting that they not broach these areas.” If the State cannot even

decide from one brief to the next whether the Act prohibits or merely advises against

unnecessarily harassing patients, doctors certainly cannot rely on the State’s self-contradictory

assurances that they will not seek to punish doctors under the harassment provision for speaking

in ways that some constituents deem to be political. As Judge Tjoflat recognized at oral

argument, these rules will simply cause doctors to “steer clear.”

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all incoming patients as they did before, despite the fact that a host of medical

associations suggest that they should. Doctors cannot record information about

their patients’ firearm ownership in highly-confidential medical files, even though

the information may later prove essential to the doctor in a medical malpractice

suit or to the patient in an emergency situation. Doctors also cannot provide

firearm safety information and advice without running the risk of facing discipline

if their medical efforts are construed to be part of a political agenda. Though the

State offers reasons to believe that the Act might not be interpreted to prohibit all

of these things, at various points in its briefing, the State accepts that these forms

of speech are the intended targets of this Act. Under a reasonable interpretation of

the Act, then, doctors are potentially subject to discipline for talking about firearms

with their patients in all but a few narrow circumstances.

One final observation is in order regarding the Act’s interpretation. The

State deemed the district court’s decision to treat the inquiry and harassment

provisions as mandatory rather than advisory as an intentional “effort to render the

Act unconstitutional.” The Majority, however, accepts the district court’s

interpretation that the inquiry and harassment provisions are mandatory. Thus,

despite accepting an interpretation of the Act that even the State suggests would

“render the Act unconstitutional,” the Majority strikingly holds that the Act is valid

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and is not even subject to First Amendment scrutiny. In other words, the Majority

has gone further in limiting speech rights than the State argued it should or could.

II.

The Act proscribes speech about one topic (firearms) by one group of

speakers (medical professionals). Despite this, the Majority concludes that the Act

entirely evades First Amendment scrutiny because the speech occurs in private and

within the confines of a doctor-patient relationship. Precedent undermines this

conclusion. Supreme Court authority consistently subjects content-, speaker-, and

viewpoint-based restrictions to at least intermediate First Amendment scrutiny. I

believe we should decide this case based on this straightforward authority.

A.

Recently, in Sorrell, the Court invalidated a “statute [that] disfavors

marketing, that is, speech with a particular content. More than that, the statute

disfavors specific speakers, namely pharmaceutical manufacturers.” 131 S. Ct. at

2663. Here, the Act directly prohibits firearm related inquiries and record keeping,

as well as persistent discussions on the topic, 7 “that is, speech with a particular

7

The Majority defines “to harass” as “[t]o disturb or irritate persistently.” Many firearm

owners—as evidenced by the legislative history—are irritated by virtually all discussions with

their doctors about firearms. Thus, doctors “harass” their patients by persistently discussing

firearms.

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content. More than that, the statute disfavors specific speakers, namely,” doctors.

See id. Thus, “[t]he law on its face burdens disfavored speech by disfavored

speakers, [and] [i]t follows that heightened judicial scrutiny is warranted.” Id. at

2663–64. Indeed, “[t]he First Amendment requires heightened scrutiny whenever

the government creates a regulation of speech because of disagreement with the

message it conveys.” Id. at 2664 (emphasis added) (internal quotation marks

omitted). The word “whenever” does not invite exceptions, but the Majority

creates one anyway. Notwithstanding the Court’s command, the Majority

concludes that no First Amendment scrutiny applies even when a message is

regulated based on disagreement with its content, so long as the message is

delivered in private from a doctor to her patient.

Modifying the level of scrutiny applicable to content-based restrictions in

this manner is “startling and dangerous,” and courts are not to adopt “free-floating

test[s] for First Amendment coverage” in light of the substantial and expansive

threats to free speech posed by content-based restrictions. United States v. Stevens,

559 U.S. 460, 470, 130 S. Ct. 1577, 1585 (2010); see also United States v. Alvarez,

__ U.S. __, 132 S. Ct. 2537, 2544 (2012) (plurality opinion). Indeed, “content-

based restrictions on speech have been permitted, as a general matter, only when

confined to the few historic and traditional categories of expression long familiar

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to the bar.” Alvarez, 132 S. Ct. at 2544 (internal quotation marks omitted). Private

speech between doctors and patients does not make this list—a list reserved for

things like obscenity, defamation, inciting violence, speech integral to criminal

conduct, child pornography, and fraud. See id.

Precedent also forbids creating exceptions to First Amendment review out of

whole cloth: “the First Amendment stands against any ‘freewheeling authority to

declare new categories of speech outside the scope of the First Amendment.’

Stevens, 559 U.S. at [472], 130 S. Ct., at 1586.” Alvarez, 132 S. Ct. at 2547. But

creating a new category of speech immune from First Amendment review is

exactly what the Majority has done here. “Before exempting a category of speech

from the normal prohibition on content-based restrictions . . . the Court must be

presented with ‘persuasive evidence that a novel restriction on content is part of a

long (if heretofore unrecognized) tradition of proscription,’ Brown v.

Entertainment Merchants Assn., 564 U.S. ___, ___, 131 S. Ct. 2729, 2734 . . .

(2011).” Alvarez, 132 S. Ct. at 2547.

If anything, the speech restricted here is part of a tradition of exceptional

protection, and it certainly is not within an area traditionally subject to

“proscription.” The Court has explicitly recognized the importance of a free flow

of information between doctor and patient, which this Act explicitly and directly

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limits. “[T]he physician must know all that a patient can articulate in order to

identify and to treat disease; barriers to full disclosure would impair diagnosis and

treatment.” Trammel v. United States, 445 U.S. 40, 51, 100 S. Ct. 906, 913 (1980).

Relatedly, a “consumer’s concern for the free flow of . . . speech . . . has great

relevance in the fields of medicine and public health, where information can save

lives.” Sorrell, 131 S. Ct. at 2664 (internal quotation marks omitted).

And even if we assume that only speech which the State defines as

medically irrelevant will be proscribed, Justice White’s concurrence in Lowe v.

S.E.C., upon which the Majority heavily relies, explains that while “the [S]tate may

prohibit the pursuit of medicine as an occupation without its license, . . . I do not

think it could make it a crime publicly or privately to speak urging persons to

follow or reject any school of medical thought.” 472 U.S. 181, 231, 105 S. Ct.

2557, 2584 (1985) (White, J., concurring) (emphasis added) (internal quotation

marks omitted). Under the Act, doctors run the serious risk of being disciplined

for harassing patients by pushing a “political agenda” if they speak (too forcefully

or persistently) to their patients about schools of medical thought which deem

firearm ownership relevant. Based on the Majority’s holding, doctors could be

prohibited in the future from speaking to their patients about any particular topic,

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including the virtues of any school of medical thought, because such conversations

are, strictly speaking, irrelevant to a patient’s care.

More disturbingly, under the rule announced by the Majority, any law

burdening or eliminating speech will avoid First Amendment scrutiny so long as

the law only applies within the confines of a one-on-one professional relationship.

Then, according to the Majority, the speech is merely professional conduct and is

entirely unprotected. States are left free to eliminate all irrelevant speech from a

doctor’s office, all relevant speech from a doctor’s office, or just that speech which

conflicts with the State’s preferred viewpoints. Under the Majority’s new

exception to content-based restrictions, if the State believes that doctors are

complaining to their patients that the Act itself is bad for public safety, the State

could pass a law banning doctors from speaking about the Act to patients—so long

as the State asserts that these complaints are irrelevant to medical care. Such a law

would not be subject to First Amendment scrutiny. Nor would First Amendment

scrutiny apply to an act barring doctors from talking to their patients about the

Affordable Care Act, Medicare or Medicaid, medical malpractice laws, or any

other topic whatsoever.

This suggests a second reason why the speech being silenced here deserves a

higher place in the First Amendment hierarchy. Greater protections are afforded to

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speech dealing with matters of public concern, which include “any matter of

political, social, or other concern to the community.” Snyder v. Phelps, __ U.S. __,

131 S. Ct. 1207, 1216 (2011) (internal quotation marks omitted). Firearm safety

qualifies as a public concern under that standard. So, too, does state regulation of

health care. Under the Act, speech by Florida doctors to their patients regarding

the former is almost entirely prohibited, and speech about the latter, as it relates to

the Act itself, is significantly chilled lest a doctor’s complaint about the Act be

perceived as harassing, anti-gun politicking. Further, under the Majority’s holding,

speech about the latter could be eliminated entirely from the doctor-patient

relationship.8

8

Snyder also explains that “whether speech is of public or private concern requires us to

examine the content, form, and context of that speech.” 131 S. Ct. at 1216 (internal quotation

marks omitted). The content of the speech prohibited by the Act certainly concerns the public, as

the speech prohibited by this Act has been recognized by the AMA to be part of an effort to

address a public health problem. The form and context perhaps cut in the opposite direction, but

not necessarily. When a doctor speaks in private to her patients about a topic like firearm safety

during the course of an examination, the message may have a fairly significant impact on the

patients’ views about guns because doctors are trusted, knowledgeable, and presumably

genuinely interested in the health consequences of firearms rather than the political consequences

of them. To many listeners, even those well-attuned to Second Amendment political debates, a

doctor’s advice could offer a new, perhaps previously unconsidered perspective that may well

change public views as well as personal practices. The State was no doubt aware of the great

influence doctors’ knowledge and information sharing might have on the public firearm debate,

and because the State disagreed with the doctors’ powerful message, it silenced them.

On topics concerning public health, doctors’ ability to inform their patients one-on-one

about the consequences of legislation—an area of speech that the Majority’s holding would

allow to be restricted without First Amendment review—seems even more clearly to be a matter

of public concern, even though the speech is conveyed in private.

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Further still, “the law’s express purpose and practical effect are to diminish

the effectiveness” of firearm safety messages delivered by doctors. Sorrell, 131 S.

Ct. at 2663 (explaining that “the inevitable effect of a statute on its face” and “a

statute’s stated purposes” may be considered for purposes of evaluating

constitutionality (internal quotation marks omitted)). Doctors asked patients about

firearms in order to give specifically tailored—and thus more effective—firearm

safety information. Indeed, amicus curiae supporting the State’s legislation

explain that the Act is necessary because a “doctor’s questions can interfere with

patients’ exercise of the right [to bear arms] by putting patients in a hesitant

position where they question their ownership of firearms because of physician

disapproval.” That statement is staggering. It suggests that the perceived problem

with doctors’ truthful, non-misleading message regarding firearm safety was that it

was working, so the message was silenced. That is classic viewpoint

discrimination.

Despite the State’s contention that pro-gun doctors are silenced on the topic

just as surely as anti-gun doctors, the Act’s legislative history erases any doubt as

to which viewpoint the State sought to silence. As discussed, the legislative

history confirms that the purpose of the Act was to silence firearm-safety messages

that were perceived as “political attacks” and as part of a “political agenda” against

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firearm ownership. Thus, “[i]n its practical operation, [Florida’s] law goes even

beyond mere content discrimination, to actual viewpoint discrimination.” Id.

(internal quotation marks omitted). “It follows that heightened judicial scrutiny is

warranted.” Id. at 2664.

The Supreme Court has recognized that “[i]t is rare that a regulation

restricting speech because of its content will ever be permissible.” United States v.

Playboy Entm’t Grp., Inc., 529 U.S. 803, 818, 120 S. Ct. 1878, 1889 (2000).

Content-based statutes, therefore, “are presumptively invalid.” R.A.V. v. City of St.

Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 2542 (1992). Based on the foregoing,

the only choice I believe we have to make is one between strict and intermediate

First Amendment scrutiny. As Part III below shows, the Act is unconstitutional

under either standard so deciding between the two is unnecessary.

B.

Against the great weight of this authority, the Majority disagrees and instead

suggests that these content-, speaker-, and viewpoint-based regulations do not

implicate the First Amendment. Accordingly, the Majority applies rational-basis

review. Most of the cases cited by the Majority, however, do not involve content-

based regulations, and the only cases cited that do, Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992), and

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Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013), directly contradict the Majority’s

conclusion.

1.

The Majority’s analysis begins with Justice White’s concurrence in Lowe,

472 U.S. at 228, 105 S. Ct. at 2582 (White, J., concurring), and Locke v. Shore, 634

F.3d 1185, 1191 (11th Cir. 2011). As will be shown, these cases stand for the

proposition that a law regulating professional conduct that burdens speech may

evade First Amendment scrutiny only when: (1) the law is a licensing scheme

regulating entry into a profession; (2) the impact on speech (an impact felt only by

unlicensed, would-be practitioners) is incidental to a broader State goal (ensuring

the quality of the State’s professionals); (3) the burden on speech is content-

neutral; and (4) the prohibition on unlicensed individuals’ speech does not extend

beyond the confines of a one-on-one professional-client relationship. Only the

fourth condition is present here. Thus these cases are readily distinguishable.

The Majority is correct that some laws burdening speech evade First

Amendment scrutiny where the burdens occur within a professional setting. See

Locke, 634 F.3d at 1191 (“‘If the government enacts generally applicable licensing

provisions limiting the class of persons who may practice the profession, it cannot

be said to have enacted a limitation on freedom of speech . . . subject to First

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Amendment scrutiny.’” (alteration in original) (emphasis added) (quoting Lowe,

472 U.S. at 232, 105 S. Ct. at 2584 (White, J., concurring))). Where this rule

applies, the law is subject only to rational basis review. Lowe, 472 U.S. at 228,

105 S. Ct. at 2582 (requiring only that the regulation “have a rational connection

with the applicant’s fitness or capacity to practice the profession” (internal

quotation marks omitted)).

But I disagree with the Majority’s conclusion that this rule applies here,

because, while there is one similarity between the regulations at issue in those

cases and the Act here, there are several critical differences.

The similarity is that Lowe, Locke, and this case all consider speech that

occurs within the confines of a one-on-one professional relationship. In Lowe, the

defendant was accused of providing investment advice without a license, in

violation of federal law. Id. at 227, 105 S. Ct. at 2582. Justice White considered

the First Amendment implications of the fact that the investment “advice” was

published broadly, suggesting that Lowe might not be not engaged in the practice

of investment advising at all. Id. Ultimately, Justice White concluded that the

First Amendment protected Lowe’s right to convey this investment-related

information for a profit, even if he had no license. Id. at 233, 105 S. Ct. at 2584–

85. In discussing the First Amendment implications of licensing schemes

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generally, Justice White concluded that a professional who “takes the affairs of a

client personally in hand and purports to exercise judgment on behalf of the client

in the light of the client’s individual needs and circumstances is properly viewed as

engaging in the practice of a profession.” Id. at 232, 105 S. Ct. at 2584. On the

other hand,

[w]here the personal nexus between professional and client does not

exist, and a speaker does not purport to be exercising judgment on

behalf of any particular individual with whose circumstances he is

directly acquainted, government regulation ceases to function as

legitimate regulation of professional practice with only incidental

impact on speech; it becomes regulation of speaking or publishing as

such, subject to the First Amendment[] . . . .

Id. Justice White concluded that because the defendant’s activities fell into the

latter category, the First Amendment applied.

The Majority reasons that if a person who is not operating within the

confines of a professional relationship has First Amendment protections, then a

person who is operating within the confines of such a relationship has no First

Amendment protections. This logic is faulty. Lowe established only that the

existence of a professional relationship is a necessary condition if a law burdening

speech is to evade First Amendment scrutiny. Nothing in Lowe implied that such a

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condition was sufficient to support this conclusion.9 In fact, Lowe suggests three

more conditions, all of which have been present in subsequent cases applying

Lowe’s rule, and none of which are present here. 10

In addition to the above condition, Lowe also contemplated that speech

would be burdened without First Amendment scrutiny only if the burden was a

consequence of a professional licensing scheme. Id. at 229, 105 S. Ct. at 2583

(discussing “the principle that the government may restrict entry into professions

and vocations through licensing schemes” (emphasis added)). And there is a third

condition, which recognizes that the government’s ability to burden speech through

a licensing scheme without implicating the First Amendment “has never been

extended to encompass the licensing of speech per se or of the press.” Id. at 229–

30, 105 S. Ct. at 2583. This reasoning has developed into a rule that “any

inhibition [must be] merely the incidental effect of observing an otherwise

legitimate regulation.” Locke, 634 F.3d at 1191 (emphasis added) (internal

quotation marks omitted). In cases contemplated by Lowe (and subsequently,

9

Justice White recognized only that “[t]he power of government to regulate the

professions is not lost whenever the practice of a profession entails speech.” Id. at 228, 105 S.

Ct. at 2582. From this the Majority reads the far broader principle that the right of the

professional to speak is lost whenever he is practicing his profession. This conclusion does not

follow from Justice White’s statement in Lowe.

10

There is one exception from the Ninth Circuit, which is readily distinguishable from

the instant case, as will be discussed below.

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Locke), the State’s regulation was not directed at speech but instead at improving

the overall quality of a profession, broadly speaking, by ensuring that only

qualified individuals practice the profession. See, e.g., id. (relying on Lowe to

uphold a statute restricting the practice of interior design to licensed professionals);

Accountant’s Soc’y of Va. v. Bowman, 860 F.2d 602, 604 (4th Cir. 1988) (relying

on Justice White’s reasoning in Lowe to uphold a statute restricting the use of

certain terms in the work product of unlicensed accountants).

A fourth and final condition that is im

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