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,

CENTER FOR CONSTITUTIONAL JURISPRUDENCE,

DOCTORS FOR RESPONSIBLE GUN OWNERSHIP,

2

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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 28, 2015)

ON PETITION FOR REHEARING

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

TJOFLAT, Circuit Judge:

We sua sponte vacate and reconsider our original opinion in this matter,

reported at 760 F.3d 1195. We substitute in its place the following opinion.

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.

Society has traditionally accorded physicians a high degree of deference due

to factors such as their superior knowledge, education, and “symbolic role as

conquerors of disease and death.” Paula Berg, Toward A First Amendment Theory

of Doctor-Patient Discourse and the Right to Receive Unbiased Medical Advice,

74 B.U. L. Rev. 201, 226 (1994). This deference reaches its apex in the

examination room. 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.

With this authority comes responsibility. To protect patients, society has

long imposed upon physicians certain duties and restrictions that operate to define

the boundaries of good medical care. In keeping with this tradition, the State

passed the Act.

The Act seeks to protect patient privacy by restricting irrelevant inquiry and

record-keeping by physicians on the sensitive issue of firearm ownership. The Act

does not prevent physicians from speaking with patients about firearms generally.

1

2011 Fla. Laws 112 (codified at Fla. Stat. §§ 381.026, 456.072, 790.338).

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Nor does it prohibit specific inquiry or record-keeping about a patient’s firearm-

ownership status when the physician determines in good faith, based on the

circumstances of that patient’s case, that such information is relevant to the

patient’s medical care or safety, or the safety of others.

Rather, the Act codifies the commonsense conclusion that good medical care

does not require inquiry or record-keeping regarding firearms when unnecessary to

a patient’s care—especially not when that inquiry or record-keeping constitutes

such a substantial intrusion upon patient privacy. Given this understanding of the

Act, and in light of the longstanding authority of States to define the boundaries of

good medical practice, we hold that the Act is, on its face, a permissible restriction

of physician speech. Plaintiffs remain free—as they have always 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.

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

2

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. Fla. H.R. Comm. on Health & Human Servs., H.B. 155 (2011)

Staff Analysis 2 (Apr. 7, 2011). See also Fred Hiers, Family and pediatrician tangle over gun

question, Ocala StarBanner, July 24, 2010,

http://www.ocala.com/article/20100724/articles/7241001.

In another incident, physicians refused to provide medical care to a nine-year-old

“because they wanted to know if [the child’s family] had a firearm in their home.” Audio CD:

Regular Session Senate Floor Debate on HB 155, held by the Florida Senate (Apr. 27–28, 2011)

at 26:32 (remarks of Sen. Evers) (on file with Florida Senate Office of the Secretary). 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. Audio CD: Regular Session House Floor

Debate on HB 155, held by the Florida House of Representatives (Apr. 26, 2011) at 26:20

(remarks of Rep. Artiles) (on file with Florida House of Representatives Office of the Clerk).

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

him that disclosing firearm ownership was a Medicaid requirement. Id. at 13:40 (remarks of

Rep. Brodeur). That legislator also relayed a complaint about a mother who was separated from

her children while medical staff asked the children whether the mother owned firearms. Id.

Further incidents are recounted in a Joint Statement of Undisputed Facts filed by the

parties in the District Court below. Wollschlaeger v. Farmer, No. 1:11-CV-22026 (S.D. Fla.

Nov. 11, 2011), Doc. 87.

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

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

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. . . .

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

disciplinary action under § 456.072(2). Fla. Stat. § 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.” Fla. Stat.

§ 790.338(8). Thus, if the Board of Medicine of the Florida Department of Health

(the “Board”) finds that a physician has violated the Act, the physician faces

disciplinary measures including fines, restriction of practice, return of fees,

probation, and suspension or revocation of his or her medical license. Fla. Stat.

§ 456.072(2). An investigation culminating in disciplinary action may be initiated

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

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

(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 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 physicians or do not

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

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

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

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.” Fla. Bd. of Medicine Rules/Legislative Comm.,

Meeting Report, at 3 (Jun. 2, 2011), available at

http://ww10.doh.state.fl.us/pub/medicine/Agenda_Info/Public_Information/Public_

Minutes/2011/Committees/R-L/060211_Minutes.pdf.

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

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

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

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

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

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).

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 physicians’ 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

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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

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. (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

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

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. With regard to the regulation of professions, the District

Court found that the Act lacked “narrow specificity,” id. at 1266 (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

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,

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id., but “[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 grounds 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.

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

We have jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1291.

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 physicians,

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

Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251, 1258 (S.D. Fla. 2012).

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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. (alteration in original)

(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) (quotation marks omitted).

We review a district court’s legal determinations de novo and ordinarily

review its factual findings for clear error. In the context of the First Amendment,

however, we conduct an independent examination of the whole record, subjecting

the District Court’s findings of ‘constitutional facts’—those facts “that involve the

reasons the [defendant] took the challenged action”—to de novo review. ACLU of

Fla., Inc. v. Miami–Dade Cty. Sch. Bd., 557 F.3d 1177, 1206 (11th Cir. 2009). 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.

We begin by taking up the issue of justiciability. The District Court found

that Plaintiffs had standing to sue because they were engaging in self-censorship,

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

redressable by injunction. 880 F. Supp. 2d at 1258–59. The State contends that

this was error, 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. Fla. Stat. § 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.

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.

FEC, 554 U.S. 724, 733, 128 S. Ct. 2759, 2768, 171 L. Ed. 2d 737 (2008).

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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) (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

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.

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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)).

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))).

To establish a cognizable self-censorship injury for the purposes of a First

Amendment claim, a plaintiff “must show that, as a result of his desired

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expression, (1) he was threatened with prosecution; (2) prosecution is likely; or (3)

there is a credible threat of prosecution.” Id. at 1260 (internal quotation marks

omitted). If a plaintiff proceeds under the credible-threat-of-prosecution prong, he

must demonstrate: “[F]irst, that he seriously wishes 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. (emphasis omitted) (citations omitted) (quotation marks 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

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

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

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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,

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

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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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

Similarly, to establish a cognizable self-censorship injury for the purposes of

a vagueness claim, a plaintiff must show that: “(1) he seriously wishes to [speak];

(2) such [speech] would arguably be affected by the rules, but the rules are at least

arguably vague as they apply to him; and (3) there is at least a minimal probability

that the rules will be enforced, if they are violated.” Id. at 1254 (emphasis omitted)

(footnote omitted) (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

6

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

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

sufficient. See Harrell v. The Fla. Bar, 608 F.3d 1241, 1248, 1260 (11th Cir. 2010) (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 arguably involves speech, 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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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 physicians

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

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

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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.

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” (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

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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, 568 U.S. ___, 133 S. Ct. 1138,

1143, 185 L. Ed. 2d 264 (2013) (holding that attorneys and various 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 the 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. For instance, it repeatedly characterizes

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.

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It also describes the inquiry provision itself as “proscrib[ing] . . . inquiries,” id. at

11, and “prohibit[ing] conduct,” id. at 39. Cf. Wilson, 132 F.3d at 1428–29

(holding that 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 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

8

We do not accept Plaintiffs’ 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. 303, 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.” (quotation marks 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 Plaintiffs’

argument does not alter the result of our standing inquiry.

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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

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

IV.

Now for the merits of Plaintiffs’ claims. Plaintiffs’ facial attacks on the Act

arise under two separate provisions of the Constitution. First, they contend that

§ 790.338(1), (2), (5), (6)—the record-keeping, inquiry, discrimination, and

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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harassment provisions of the Act 10—impermissibly trench upon their rights under

the First Amendment. In their view, the Act is a content-based restriction on

speech and as such, is subject to—and fails—strict scrutiny. Plaintiffs also assert

that the Act is overbroad; that is, they claim that even if the Act’s regulation of

speech is constitutional in a limited number of situations, it nonetheless proscribes

a substantial amount of legitimate speech, and must fall. Second, Plaintiffs argue

that the Act violates their rights under the Due Process Clause of the Fourteenth

Amendment, in that the Act’s terms are so vague that they fail to put a person of

ordinary intelligence on notice as to what the Act prohibits.

We will begin with the latter contention and then move to the First

Amendment challenges. See Borgner v. Brooks, 284 F.3d 1204, 1208 (11th Cir.

2002) (“Before analyzing [the challenged state statute] under the [appropriate level

of First Amendment scrutiny], we must first determine whether the statute, taken

as a whole, is clear as far as what is required and what is prohibited.”).

A.

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

10

Plaintiffs’ challenge is limited to these four provisions. Accordingly, unless context

demands otherwise, future references to the Act should be understood to refer only to these

provisions.

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intelligence must necessarily 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).

The Supreme Court has explained that “standards of permissible statutory

vagueness are strict in the area of free expression.” NAACP v. Button, 371 U.S.

415, 432, 83 S. Ct. 328, 337, 9 L. Ed. 2d 405 (1963). Nonetheless, “perfect clarity

and precise guidance have never been required even of regulations that restrict

expressive activity.” Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S. Ct.

2746, 2755, 105 L. Ed. 2d 661 (1989) (citation omitted); see also Grayned v. City

of Rockford, 408 U.S. 104, 110, 92 S. Ct. 2294, 2300, 33 L. Ed. 2d 222 (1972)

(“Condemned to the use of words, we can never expect mathematical certainty in

our language.”). As such, “speculation about possible vagueness in hypothetical

situations not before the Court will not support a facial attack on a statute when it

is surely valid in the vast majority of its intended applications.” Hill v. Colorado,

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530 U.S. 703, 733, 120 S. Ct. 2480, 2498, 147 L. Ed. 2d 597 (2000) (citation

omitted) (quotation marks omitted).

We begin by setting forth our understanding of the meaning of each of the

challenged provisions, after which we address Plaintiffs’ specific contentions. See

Broadrick v. Oklahoma, 413 U.S. 601, 617 n.16, 93 S. Ct. 2908, 2919, 37 L. Ed. 2d

830 (1973) (“[A] federal court must determine what a state statute means before it

can judge its facial constitutionality.”). We do so in light of the familiar principle

that where a statute is “readily susceptible to a narrowing construction that avoids

constitutional infirmities,” we must uphold it. See Fla. Right to Life, Inc. v. Lamar,

273 F.3d 1318, 1326 (11th Cir. 2001).

1.

The record-keeping provision prohibits physicians from “intentionally

enter[ing] any disclosed information concerning firearm ownership into the

patient’s medical record if the [physician] knows that such information is not

relevant to the patient’s medical care or safety, or the safety of others.” Fla. Stat.

§ 790.338(1). We note three salient points with regard to this provision. First, the

substantive prohibition contained in the first clause—that a physician may not

“intentionally enter any disclosed information concerning firearm ownership,”

id.—is conditioned on a relevancy requirement in the second clause. See New

Oxford American Dictionary 865 (3d ed. 2010), available at

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http://www.oxforddictionaries.com/definition/american_english/if (defining “if,”

in the first sense, as a conjunction which “introduc[es] a conditional clause”). The

substantive prohibition applies only when the condition in the second clause is

met—i.e., when a physician knows that information concerning firearm ownership

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

Logically, when a physician does not know that information concerning firearm

ownership is irrelevant to the patient’s medical care or safety, or the safety of

others, the prohibition does not apply.

Second, and relatedly, the statute is written to require a high degree of

certainty as to non-relevance on the part of the physician before the prohibition

takes effect. By its terms, the provision only prohibits physicians from entering

information concerning firearm ownership when the physician has knowledge of

irrelevance. Any mental state regarding irrelevance that does not rise to the level

of knowledge would not trigger the prohibition.

Finally, of course, if the prohibition applies only when a physician knows the

information to be irrelevant, then the critical issue is the meaning of the relevancy

requirement. Plaintiffs argue that the provision is vague because it does not

provide them with sufficient notice as to when record-keeping 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

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patient or whether a physician’s general belief that firearms are always relevant

will suffice. They also argue that the Act 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.

We find that recourse to plain meaning resolves the issue. See Johnson v.

Governor of Fla., 405 F.3d 1214, 1247 (11th Cir. 2005) (en banc) (“The first step

in statutory interpretation requires that courts apply the plain meaning of the

statutory language unless it is ambiguous.”). “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). We agree that the Act’s

relevancy requirement does not have a neat, one-size-fits-all definition; rather,

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 information about firearm ownership is relevant in

every case would, indeed, render the record-keeping provision superfluous, but this

problem is easily avoided by adhering to a plain-meaning construction of relevancy

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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 record information regarding firearm

ownership whenever doing so would be part of the practice of good medicine.

Taking these three points together, we think the record-keeping provision

stands for the simple proposition that a physician may not record a patient’s

firearm-ownership status unless the physician believes 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. The record-

keeping provision is sufficiently clear that a person of common intelligence need

not guess as to what it prohibits.

2.

The inquiry provision is phrased slightly differently, but we think it is

substantially similar to the record-keeping provision in terms of its practical effect.

This provision directs physicians to

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 [physician] . . . that in good

faith believes that this information is relevant to the patient’s medical

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care or safety, or the safety of others, may make such a verbal or

written inquiry.

Fla. Stat. § 790.338(2).

Here again, the substantive prohibition is qualified by a relevancy

requirement, effectively providing that physicians may inquire whenever they

believe in good faith that firearm ownership information is relevant to medical care

or safety. Again, the provision sets a high bar as to the mental state necessary to

trigger the prohibition: a physician must lack any good-faith belief as to the

relevancy of the information. The provision does not require physicians to have

knowledge of relevance before speaking, but only a good-faith belief as to

relevance. Although this is phrased differently than the record-keeping provision’s

relevancy requirement, we think the two provisions form two sides of the same

coin. The prohibitions apply when a physician knows the information to be

irrelevant and do not apply if the physician has a good-faith belief that the

information is relevant.

And, as with the record-keeping provision, the relevancy clause is also key

here. Plaintiffs again assert that the term “relevant” is vague, but as we observed

above, in context, this requirement simply means that a physician should base his

or her calculation as to the relevancy of a patient’s ownership of firearms on

particularized information about the patient. Thus, a physician may make inquiries

as to the firearms-ownership status of any or all patients, so long as he or she does

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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 a personal 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.

Accordingly, we conclude that the inquiry provision is sufficiently clear that

a person of common intelligence need not guess as to what it prohibits.

3.

Finally, 11 the harassment provision also contains the same basic elements as

the first two provisions, albeit with a few modifications. The harassment provision

directs physicians to “refrain from unnecessarily harassing a patient about firearm

ownership during an examination.” Fla. Stat. § 790.338(6). Like the record-

keeping and inquiry provisions, the harassment provision does not impose a flat

ban on the speech at issue, but rather qualifies its ban—here, with a necessity

requirement. Under the terms of the statute, physicians are only prohibited from

harassing patients about firearm ownership when such harassment is unnecessary.

11

Plaintiffs have not cross-appealed the District Court’s holding that the discrimination

provision, § 790.338(5), is not void for vagueness. As a result, we need not address their

argument that what constitutes “discrimination” under the provision is unclear.

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One way in which the harassment provision differs from the previous two

provisions, however, is with regard to the mental-state standard that triggers the

substantive prohibition. Instead of imposing a high bar before prohibiting the

speech—requiring knowledge of irrelevance or the absence of a good-faith belief

of relevance—the harassment provision flips this formula, imposing a relatively

high bar before permitting the speech. Harassment about firearm ownership is

only permitted when necessary. We are not troubled by this inversion, however,

because although, as we discuss below, we can imagine scenarios in which

“harassment” might be warranted, even advisable, we think that in the majority of

cases, it will not be. Imposing a more rigorous standard before permitting record-

keeping or inquiry might present a more difficult question, but we do not think it

inappropriate as a prerequisite to permitting “harassing.”

Finally, we think that the necessity requirement, like the record-keeping and

inquiry provisions, when read in the context of the provision and the Act as a

whole, also has the effect of requiring a particularized determination by the

physician as to relevance. See Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 84

(Fla. 2000) (“[A]ll parts of a statute must be read together in order to achieve a

consistent whole,” and “‘[w]here possible, courts must give effect to all statutory

provisions and construe related statutory provisions in harmony with one

another’”), cited with approval in Borgner, 284 F.3d at 1208.

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Two points inform this conclusion. First, the harassment provision contains

an explicit temporal limitation: unnecessary harassment is prohibited “during an

examination.” Fla. Stat. § 790.338(6). Since the purpose of a medical examination

is the provision of medical care, it seems logical to assume that if any harassment

is permissible within that context, it must be related to the purpose of the medical

examination. Second, the relevancy requirements present in both the record-

keeping and inquiry provisions illuminate the meaning of the necessity

requirement in the harassment provision. These requirements manifestly turn on a

particularized determination by the physician as to the relevancy of the speech to

the medical care or safety of the patient, or the safety of others. While that link is

not made explicit in connection with the necessity requirement, the clear

implication, given this pattern, is that the necessity requirement is directed to the

same object: the medical care or safety of the patient, or the safety of others.

Plaintiffs express concern that the relevancy determination will hinge solely

on a particular patient’s subjective understanding of what constitutes “unnecessary

harassment,” and that as a result, they may be subjected to liability or discipline on

an arbitrary basis. Were this indeed the case, the provision would likely be invalid.

See Conant v. Walters, 309 F.3d 629, 639 (9th Cir. 2002) (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

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narrow specificity under the First Amendment); see also Thomas v. Collins, 323

U.S. 516, 535, 65 S. Ct. 315, 325, 89 L. Ed. 430 (1945) (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 at the mercy of the

varied understanding of his hearers and consequently of whatever inference may be

drawn as to his intent and meaning”).

Again, we find the plain meaning of the term sufficient to dispel these fears.

“Harass” means “[t]o disturb or irritate persistently.” American Heritage

Dictionary of the English Language 600 (William Morris ed. 1969). When read in

the context of the Act as a whole, the harassment provision communicates that

physicians should not disparage firearm-owning patients, and should not persist in

attempting to speak to the patient about firearm ownership when the subject is 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 the modifier “unnecessarily” to be

problematic, we disagree. The modifier in fact allows physicians the freedom to

challenge—i.e., “harass”— patients regarding firearms when, under the

particularized circumstances of the patient’s case, doing so is necessary for health

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or safety reasons, even if the patient might find the physician’s 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. So even if the patient considers the physician’s health and safety advice

related to firearms to be harassing, the inclusion of the modifier “unnecessarily”

leaves room for physicians to deliver such advice when necessary to medical care

or safety, consistent with the Act’s other provisions. The harassment provision is

sufficiently clear that a person of common intelligence need not guess as to what it

prohibits.

As a final point, 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.

4.

To summarize, we read the Act to prohibit record-keeping about firearm

ownership only when the physician knows such information to be irrelevant to the

patient’s medical care or safety, or the safety of others; inquiry about firearm

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ownership only when the physician lacks a good-faith belief that the information is

relevant to the patient’s medical care or safety, or the safety of others; and

harassment about firearm ownership only when the physician does not believe it

necessary to the patient’s medical care or safety, or the safety of others.

Having determined that the record-keeping, inquiry, and harassment

provisions are of sufficient clarity to conform to the requirements of due process,

we hold that the District Court erred in finding them void for vagueness.

B.

We turn now to the first of Plaintiffs’ First Amendment challenges. We

need only proceed to apply First Amendment scrutiny to the Act if it regulates

activity that falls within the ambit of the First Amendment’s protections.

Therefore, we begin our analysis by resolving a necessary preliminary issue:

whether any of the challenged provisions implicate a significant amount of

“speech” as that term is understood in the context of First Amendment law.

1.

Under the First and Fourteenth Amendments, States are prohibited from

“mak[ing] [any] law . . . abridging the freedom of speech.” U.S. Const. amend. I. 12

12

The First Amendment’s prohibition is applied against the States through the Fourteenth

Amendment’s Due Process Clause. Schneider v. New Jersey, 308 U.S. 147, 160, 60 S. Ct. 146,

150, 84 L. Ed. 155 (1939); see also Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900,

903, 84 L. Ed. 1213 (1940).

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“The First Amendment literally forbids the abridgment only of ‘speech,’ but we

have long recognized that its protection does not end at the spoken or written

word.” Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 2539, 105 L. Ed. 2d

342 (1989). Conduct may also be “sufficiently imbued with elements of

communication to fall within the scope of the First and Fourteenth Amendments.”

Spence v. Washington, 418 U.S. 405, 409, 94 S. Ct. 2727, 2730, 41 L. Ed. 2d 842

(1974). To determine whether particular conduct implicates the protections of the

First Amendment, we look to whether it is “inten[ded] to convey a particularized

message,” and whether, under the circumstances, it is highly likely “that the

message would be understood by [observers].” Johnson, 491 U.S. at 404, 109 S.

Ct. at 2539 (quoting Spence, 418 U.S. at 410–11, 94 S. Ct. at 2730).

It would seem under this definition— indeed, under almost any measure—

that asking questions and writing down answers constitute protected expression

under the First Amendment. However, the State argues that the Act escapes First

Amendment scrutiny because it is directed toward conduct—the practice of

medicine. While seemingly conceding (as it must) that asking questions and

writing down answers would receive First Amendment protection if it occurred

between strangers on a street corner, the State asserts that because the activity is

conducted by a physician as part of the practice of the medical profession, and

because the medical profession has long been subject to close regulation by the

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State, the fact that the law restricts oral and written communication is of no

consequence whatever.

The State finds support for this proposition in Locke v. Shore, 634 F.3d 1185

(11th Cir. 2011). In that case, we said that “[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.” Id. at 1191 (quoting Accountant’s Soc. of Va. v.

Bowman, 860 F.2d 602, 604 (4th Cir. 1988)). That is true so far as it goes, but the

State’s proffered interpretation begs the question we must answer here. An

inhibition of professionals’ freedom of speech does not violate the First

Amendment “so long as” it is “merely the incidental effect of . . . an otherwise

legitimate regulation.” Id. (emphasis added). The State’s analysis proceeds at

such a high level of generality that all laws regulating the practice of a profession

would necessarily impose only incidental burdens on speech, and so would always

pass muster under the First Amendment. This cannot be the case.

The State also cites Justice White’s concurring opinion in Lowe v. SEC, 472

U.S. 181, 211–36, 105 S. Ct. 2557, 2573–86, 86 L. Ed. 2d 130 (1985), but we do

not find anything in that opinion that would countenance the idea that the entire

category of professional regulation touches only on conduct, and thus lies beyond

the reach of the First Amendment. Indeed, Justice White recognized that “[a]t

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some point, a measure is no longer a regulation of a profession but a regulation of

speech or of the press; beyond that point, the statute must survive the level of

scrutiny demanded by the First Amendment.” Id. at 230, 105 S. Ct. at 2583; see

also Holder v. Humanitarian Law Project, 561 U.S. 1, 28, 130 S. Ct. 2705, 2724,

177 L. Ed. 2d 355 (2010) (explaining that when “the conduct triggering coverage

under [a] statute consists of communicating a message . . . we must [apply] a more

demanding standard” of scrutiny than that applied to regulations of

noncommunicative conduct (second modification in original)); Miller v. Stuart,

117 F.3d 1376, 1382 (11th Cir. 1997) (holding that a state may not insulate a

regulation of commercial speech from First Amendment review simply by

classifying the speech as part of the profession of accountancy); King v. Governor

of N.J., 767 F.3d 216, 228–29 (3d Cir. 2014) (rejecting the argument that verbal

communications become “conduct” when they are used to deliver professional

services), cert. denied 575 U.S. ___, ___ S. Ct. ___, 2015 WL 1959131 (May 4,

2015).

Our task, then, is to determine whether any provision of the Act crosses the

boundary between a law regulating professional conduct with an incidental effect

on speech, and a law regulating protected speech, which “must survive the level of

scrutiny demanded by the First Amendment.” Lowe, 472 U.S. at 230, 105 S. Ct. at

2583 (White, J., concurring).

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The record-keeping provision of the Act, § 790.338(1), prohibits physicians

from “intentionally enter[ing] any disclosed information concerning firearm

ownership into the patient’s medical record” under certain circumstances. This

provision clearly targets activity—making an entry in a medical record—that is

intended to convey a particular message—information about firearm ownership.

And, (legibility aside) we think that under the circumstances it is highly likely that

the expressive content contained in these entries would be understood by those

viewing them. Therefore, we hold that the record-keeping provision regulates

speech, and as such, must survive some level of First Amendment scrutiny.

The inquiry provision of the Act, § 790.338(2), requires physicians to

“refrain from making a written inquiry or asking questions concerning the

ownership of a firearm . . . .” On its face, this provision also inhibits protected

speech—inquiring about firearm ownership. It too must survive some level of

First Amendment scrutiny.

The discrimination provision of the Act, § 790.338(5), if not a horse of a

different color, is at least a different shade steed. This provision prohibits

“discriminat[ion] against a patient based solely upon the patient’s exercise of the

constitutional right to own and possess firearms or ammunition.” Id. Unlike the

first two provisions considered, the discrimination provision does not facially

implicate a substantial amount of protected speech. Of course, it is possible to

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discriminate via speech, by hanging a sign on the examination room wall

proclaiming “Gun Owners Not Welcome Here,” for example. But this does not

transform antidiscrimination laws into restrictions on speech. See Rumsfeld v.

Forum for Acad. & Inst’l Rights, Inc., 547 U.S. 47, 62, 126 S. Ct. 1297, 1308, 164

L. Ed. 2d 156 (2006) (“Congress, for example, can prohibit employers from

discriminating in hiring on the basis of race. The fact that this will require an

employer to take down a sign reading ‘White Applicants Only’ hardly means that

the law should be analyzed as one regulating the employer’s speech rather than

conduct.”); accord Wisconsin v. Mitchell, 508 U.S. 476, 487–88, 113 S. Ct. 2194,

2201, 124 L. Ed. 2d 436 (1993) (compiling cases upholding state and federal

antidiscrimination laws against First Amendment challenge). The provision does

not single out speech, or target speech that carries a specific message; rather “the

focal point of its prohibition [is] the act of discriminating against individuals in the

provision of [medical treatment] on the proscribed ground[].” See Hurley v. Irish-

Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 572, 115 S. Ct. 2338,

2347, 132 L. Ed. 2d 487 (1995). Especially in light of the facial nature of

Plaintiffs’ challenge—we hold that the discrimination provision is a regulation of

conduct with only an incidental effect on speech. As such, it does not implicate,

let alone offend, the First Amendment.

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The harassment provision of the Act, § 790.338(6), requires physicians to

“refrain from unnecessarily harassing a patient about firearm ownership . . . .”

Plaintiffs point us to Saxe v. State Coll. Area Sch. Dist., which stands for the

proposition that “[t]here is no categorical ‘harassment exception’ to the First

Amendment’s free speech clause.” 240 F.3d 200, 204 (3d Cir. 2001) (Alito, J.) Of

course, “non-expressive, physically harassing conduct is entirely outside the ambit

of the free speech clause,” but the First Amendment also “protects a wide variety

of speech that listeners may consider deeply offensive . . . .” Id. at 206; see, e.g.,

Snyder v. Phelps, 562 U.S. 443, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011);

Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969).

A natural reading of the provision would seem to indicate that it is primarily

concerned with verbal harassment, since it defines a subject about which

unnecessary harassment is prohibited. It is difficult to imagine how one would

physically “harass[] a patient about firearm ownership.” See Fla. Stat.

§ 790.338(6) (emphasis added). However, even assuming that there are some

situations in which the provision could be applied without involving speech, we

think that on balance, the provision substantially regulates speech and so must

survive some level of First Amendment scrutiny. 13

13

We note that Plaintiffs bring two types of facial First Amendment challenges to this

provision: a traditional facial challenge, which can succeed only if “no set of circumstances

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In sum, we conclude that while the discrimination provision is a regulation

of professional conduct with merely an incidental effect on speech, and thus does

not implicate the First Amendment, the record-keeping, inquiry, and harassment

provisions do regulate a significant amount of protected speech. Accordingly, we

must proceed to determine what level of scrutiny the First Amendment demands of

these provisions. See Lowe, 472 U.S. at 230, 105 S. Ct. at 2583 (White, J.,

concurring).

2.

Before we answer that question, however, we think it may be helpful to

survey the landscape of professional speech. Two concepts orient our discussion:

profession and relationship. A physician is not only a member of the medical

profession; he or she is also a fiduciary member of various physician-patient

relationships. See, e.g., 61 Am. Jur. 2d Physicians, Surgeons, and Other Healers

exists under which the Act would be valid,” Am. Fed’n of State, Cty. & Mun. Emps. Council 79

v. Scott, 717 F.3d 851, 863 (11th Cir. 2013) cert. denied, 134 S. Ct. 1877, 188 L. Ed. 2d 912

(2014) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697

(1987)), and an overbreadth challenge, “whereby 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, 559 U.S. 460, 473, 130 S. Ct. 1577, 1587,

176 L. Ed. 2d 435 (2010) (quotation marks omitted).

If there are some plainly legitimate applications of the harassment provision, such as to

physical harassment, that would seem to doom the first of Plaintiffs’ facial First Amendment

challenges. This is not necessarily dispositive, however, because a substantial number of its

applications may still be found to be unconstitutional in an overbreadth analysis.

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§ 141 (2012); Mangoni v. Temkin, 679 So. 2d 1286, 1288 (Fla. Dist. Ct. App.

1996). By exploring the distinct interests that drive and restrain government

regulation in both areas, we can derive a framework by which to evaluate laws

regulating professional speech.

We start with the commonsense observation that “[t]here is a difference, for

First Amendment purposes, between . . . professionals’ speech to the public at

large versus their direct, personalized speech with clients.” Locke, 634 F.3d at

1191; see also Fla. Bar v. Went For It, Inc., 515 U.S. 618, 634, 115 S. Ct. 2371,

2381, 132 L. Ed. 2d 541 (1995) (“Speech by professionals obviously has many

dimensions.”). While a professional may speak on a variety of topics in a variety

of contexts, only some of this speech falls under the category of “professional

speech.” Consider two hypothetical scenarios. In the first, a physician meets with

a patient in an examination room and explains the risks of a particular surgical

procedure. This conversation is easily classified as professional speech. In the

second scenario, the same physician speaks to a crowd at a rally, extolling the

merits of a particular political candidate. It seems equally clear that while this

speech is also uttered by a professional, it is not “professional speech.”

Phrased in terms of principles, we think it is safe to say that speech uttered

by a professional in furtherance of his or her profession and within the confines of

a professional-client relationship falls within any reasonable definition of

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professional speech. See King, 767 F.3d at 232 (defining professional speech as

speech that “is used to provide personalized services to a client based on the

professional’s expert knowledge and judgment”); Moore-King v. Cty. of

Chesterfield, Va., 708 F.3d 560, 569 (4th Cir. 2013) (finding “the relevant inquiry

to determine whether to apply the professional speech doctrine” to be “whether the

speaker is providing personalized advice in a private setting to a paying client”);

see also Robert Post, Informed Consent to Abortion: A First Amendment Analysis

of Compelled Physician Speech, 2007 U. Ill. L. Rev. 939, 949 (“[W]hen a

physician speaks to a patient in the course of medical treatment, his opinions are

normally regula[ble] . . . .”).

At the other end of the spectrum, speech uttered by a professional that is

irrelative to the practice of his or her profession and outside a particular

professional-client relationship likely falls beyond the purview of professional

speech. 14 See Lowe, 472 U.S. at 232, 105 S. Ct. at 2584 (White, J., concurring)

(“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

14

This does not mean that the speech cannot be regulated, but rather that such speech is,

for most purposes, indistinguishable from speech by the average citizen. Therefore, any

government regulation of such speech would generally be subject to a conventional First

Amendment analysis. See Pickup v. Brown, 740 F.3d 1208, 1227–28 (9th Cir. 2013).

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regulation . . . 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.’”); cf. Sedivy v. State ex rel. Stenberg, 567

N.W. 2d 784, 793 (Neb. Ct. App. 1997) (suggesting in dicta that the First

Amendment would bar the State from revoking a veterinarian’s license solely

because he expressed disagreement with government tax policies).

The difference between the first and second scenarios posed above turns on

two factors: the professional effectivity of the speech—whether the physician is

speaking in furtherance of the practice of medicine or not, and the relational

context of the speech—whether the physician is speaking within a fiduciary

relationship or not. Taken together, these factors account for the universe of

speech uttered by a professional, dividing it into four categories. First, a physician

may speak to the public, in furtherance of the practice of medicine. Second, a

physician may speak to a client, in furtherance of the practice of medicine. Third,

a physician may speak to a client, on a matter irrelative to the practice of medicine.

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Finally, a physician may speak to the public, on a matter irrelative to the practice

of medicine.15

To illustrate, the physician’s speech in the first scenario above, to a patient

about the risks of surgery, would fall in the second category: speech that furthers

the practice of the physician’s profession and occurs within the confines of a

physician-patient relationship. The physician’s speech to the crowd about a

political candidate would fall in the fourth category: speech that is unrelated to the

practice of the physician’s profession and occurs in the absence of any special

relationship.

15

It may be helpful to think about these four categories in the form of a grid, like so:

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Speech between these two extremes can be located as well. Promotional or

advertising speech by a physician to the public would fall within the first category:

speech to the public for the purpose of furthering the physician’s practice. Giving

general health advice to the public on a television talk show or in a newspaper

column would also be in this category. See, e.g., Bailey v. Huggins Diagnostic &

Rehab. Ctr., Inc., 952 P.2d 768, 773 (Colo. App. 1997) (disallowing on First

Amendment grounds a negligent misrepresentation claim against a dentist for

publicly suggesting that mercury amalgam fillings are harmful and should be

removed).

Conversely, conversation by a physician with a patient about their mutual

love of golf would fall in the third category: speech unrelated to the practice of

medicine but within the confines of a physician-patient relationship. A more

sinister example of speech within this category is harassing or intimidating speech

by a physician to a patient. See, e.g., In re Suspension or Revocation of License of

Singh, No. A-2181-06T2, 2007 WL 1753567, at *1 (N.J. Super. Ct. App. Div. June

20, 2007) (affirming revocation of a physician’s license in part for repeatedly

pressuring elderly patient to conceal the physician’s attempt to solicit a loan from

her).

The utility of this two-dimensional model of professional speech comes to

the fore when we attempt to identify the various governmental, societal, and

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individual interests that shape regulations of speech by professionals. The

combination of salient interests present when a physician speaks in furtherance of

his profession is related to, but distinct from, the interests at play when a physician

speaks as a fiduciary.

When government regulation of speech uttered by a professional is analyzed

through the lens of the professional effectivity of the speech—whether it furthers

or is unrelated to the practice of a profession—the relevant interests are the

government’s interest in regulating the profession for the protection of the public

and the professional’s interest in speaking freely. Both interests vary depending on

whether the speech effects the practice of a profession. The government’s interest

is strongest when a professional speaks in furtherance of his profession and

weakest when a professional speaks irrelative to his profession. The professional’s

interest, conversely, is strongest when he speaks on matters unrelated to his

profession and weakest when he speaks in furtherance of his profession.

When regulations of speech uttered by a professional are analyzed in terms

of the audience—whether the speech occurs within the confines of a relationship of

trust and confidence or not—the relevant interests are slightly different. Within a

fiduciary or quasi-fiduciary relationship, the government has a strong interest in

policing the boundaries of the relationship to protect the weaker party from

exploitation. This interest does not derive solely from some general principle that

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the government is obligated to protect the weak from predation by the strong;

rather, the government’s interest is in ensuring that the societally beneficial

function of these relationships—agent-principal, attorney-client, physician-patient,

etc.—is not nullified due to exploitation by the fiduciary. Outside the confines of

such relationships, the government’s interest in protecting the listener wanes, and

instead the interest of the physician’s audience in obtaining information reaches its

zenith.

Once this two-dimensional interplay of interests is set forth, our intuitive

conclusions about whether certain kinds of speech by physicians constitute

professional speech, and the proportionate latitude with which a state may regulate

such speech, make sense. When a physician speaks to a patient in furtherance of

the practice of medicine, not one, but two substantial state interests are implicated:

regulation of the profession for the protection of the public, and regulation of the

relationship for the protection of the patient and the benefit of society. Conversely,

when a physician speaks to the public on a matter irrelative to the practice of

medicine, neither state interest adheres with any special force; instead, the

countervailing interests—the physician’s interest in speaking freely and society’s

interest in listening freely—come to the fore.

Another benefit of our two-dimensional framework is that it aligns with and

illuminates the limited guidance the Supreme Court has provided on the subject of

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professional speech. Take, for example, promotional speech by professionals.

Under our analysis, regulations of this type of speech fall in the first category,

where the two primary interests at play are the state’s interest in protecting the

public by regulating the profession, and society’s interest in the free flow of

information. Notably, these are precisely the interests the Supreme Court has

found relevant to analyzing regulations of professional advertising. See Va. State

Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 764, 766–68,

96 S. Ct. 1817, 1827, 1828–29, 48 L. Ed. 2d 346 (1976) (characterizing the

countervailing interests as society’s “strong interest in the free flow of commercial

information,” and the state’s “strong interest” in protecting the public by

maintaining “high professional standards”); accord Bates v. State Bar of Ariz., 433

U.S. 350, 364–79, 97 S. Ct. 2691, 2699–707, 53 L. Ed. 2d 810 (1977); Ohralik v.

Ohio State Bar Ass’n, 436 U.S. 447, 454–460, 98 S. Ct. 1912, 1918–20, 56 L. Ed.

2d 444 (1978).

The Supreme Court has also addressed, in passing, another category of

speech by a professional—a regulation compelling physicians to discuss certain

information with their patients about the risks of abortion and childbirth. Planned

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

Ed. 2d 674 (1992) (joint opinion). Under our framework, this type of regulation

falls at the intersection of two substantial governmental interests: regulation of the

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profession for the protection of the public, and regulation of the fiduciary

relationship for the protection of the patient and the benefit of society. When one

understands that both of the primary interests at play in this category cut in favor of

government regulation, the Supreme Court’s succinct conclusion that the

regulation implicated “the physician[s’] First Amendment rights” but survived

scrutiny as a “reasonable” regulation of the practice of medicine makes more

sense. Id.

While the Court’s brief treatment in Casey does not provide much insight

into how to analyze regulations of professional speech, or why the statute at issue

survived First Amendment scrutiny, 16 the holding is helpful insofar as it is

consistent with our conclusion that speech by a professional is best understood by

evaluating it along two dimensions – whether it is uttered in furtherance of a

profession and whether it occurs within a professional-client relationship.

16

As at least one commentator has noted, Wooley v. Maynard, 430 U.S. 705, 97 S. Ct.

1428, 51 L. Ed. 2d 752 (1977), and Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64

(1977), the two cases the Court cited as support for its holding, point in opposite directions on

the issue of the appropriate level of scrutiny. Daniel Halberstam, Commercial Speech,

Professional Speech, and the Constitutional Status of Social Institutions, 147 U. Pa. L. Rev. 771,

773–74 (1999). The reference to Wooley would seem to indicate that heightened scrutiny is

appropriate, given that the Court in Wooley struck down a regulation of speech because it was

not narrowly tailored to a “sufficiently compelling” government interest. See 430 U.S. at 716–

717, 97 S. Ct. at 1436. On the other hand, the passage cited from Whalen suggests that States’

authority to regulate the practice of medicine is subject only to basic due process considerations.

See 429 U.S. at 603, 97 S. Ct. at 878. “To fuse these two models in a shorthand formulation

provides little indication of how to resolve any professional’s First Amendment claim other than

the precise one at issue in Casey.” Halberstam, supra, at 774.

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We need not mark out today the full metes and bounds of professional

speech. It is sufficient to observe that speech by a physician that is uttered in

furtherance of the practice of medicine and within the confines of a fiduciary

relationship falls squarely within this category. As this is what the Act seeks to

regulate, we conclude that it is a regulation of professional speech. 17

With these principles in mind, we are now prepared to address the issue of

the appropriate level of First Amendment scrutiny with which to evaluate the Act.

3.

All regulations of speech are not created equal in the eyes of the First

Amendment. Laws regulating speech “receive different levels of judicial scrutiny

depending on the type of regulation and the justifications and purposes underlying

it.” Stuart v. Camnitz, 774 F.3d 238, 244 (4th Cir. 2014), cert. denied, 576 U.S.

17

There can be no argument that Plaintiffs view inquiries about firearm ownership as a

matter of preventative care—i.e., in furtherance of the practice of medicine—or that they wish to

raise these issues with their patients—i.e., within the context of a fiduciary relationship. See

Plaintiffs’ Br. 3–4. Indeed, stripped to its essentials, Plaintiffs’ theory of the case appears to be

that the Act prohibits them from speaking to their patients in furtherance of the practice of

medicine, but that the State’s objective in passing the Act was to prohibit them from speaking on

a matter irrelative to the practice of medicine, and that it will seek to punish them for doing so.

We do not understand Plaintiffs to argue that they have a First Amendment right to speak

to their patients within the examination room on matters irrelative to the practice of medicine.

So, because we find that the Act was tailored so as to permit inquiry about firearms in all

circumstances in which the physician believes in good faith that such information is relevant to

the health or safety of any individual, see supra part IV.A.2, we need not—indeed, we cannot—

address the propriety of applying the Act to prohibit physicians from discussing matters irrelative

to their patients’ health or safety. Because Plaintiffs concede that the Act regulates speech

uttered in furtherance of the practice of medicine, we proceed to analyze it as such.

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___, ___ S. Ct. ___, 2015 WL 1331672 (June 15, 2015). Some statutory restraints

on speech—most laws that restrict speech based on its content or viewpoint, for

example—receive the “most exacting scrutiny,” Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622, 642, 114 S. Ct. 2445, 2459, 129 L. Ed. 2d 497 (1994), while others

typically receive a less rigorous level of review, e.g., Ward, 491 U.S. 781, 109 S.

Ct. 2746 (content-neutral regulations of the time, place, or manner of speech);

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 100

S. Ct. 2343, 65 L. Ed. 2d 341 (1980) (regulations of commercial speech); United

States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968)

(regulations of noncommunicative conduct).

a.

As noted, the Supreme Court has yet to clarify the precise level of scrutiny

with which to review government restrictions of professional speech. To bridge

this gap, we must proceed via inference from the known to the unknown. The first

piece of information we have is the level of scrutiny due government regulations of

speech by a professional on a matter irrelative to the practice of his profession and

outside any particular relationship (in the fourth category above). In almost every

instance, when a professional speaks in this context, his status as a professional is

entirely incidental to his speech. When this is true, the government generally may

not treat professional speakers differently than nonprofessional speakers. See

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Pickup v. Brown, 740 F.3d 1208, 1227–28 (9th Cir. 2013) (“[O]utside the doctor-

patient relationship, doctors are constitutionally equivalent to soapbox orators and

pamphleteers, and their speech receives robust protection under the First

Amendment.”); see also City of Madison, Joint Sch. Dist. No. 8 v. Wis. Emp’t

Relations Comm’n, 429 U.S. 167, 176, 97 S. Ct. 421, 426, 50 L. Ed. 2d 376 (1976)

(“[The government] may not . . . discriminate between speakers on the basis of

their employment . . . .”); Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will

County, Ill., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811 (1968)

(“[T]eachers may [not] constitutionally be compelled to relinquish the First

Amendment rights they would otherwise enjoy as citizens to comment on matters

of public interest . . . .”).

Because the State’s interest in imposing content-based restrictions on speech

is at low ebb when a professional speaks to the public irrelative to the practice of

his profession, the State is required to justify any such regulation by demonstrating

that it is “the least restrictive means of advancing a compelling government

interest.” Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1258 (11th Cir.

2005). This test is known as strict scrutiny. Id. So, for example, a law that

prohibited physicians from discussing the subject of firearms with the public

generally would assuredly be classified as a content-based restriction on speech,

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subject to strict scrutiny. Absent a showing that the law was necessary to further a

compelling government interest, it would fall.

Another parcel of terra cognita is the level of scrutiny with which to

evaluate regulations of speech by a professional to the public in promotion of his

or her profession (in the first category above). The Supreme Court has noted that

this type of speech “occurs in an area traditionally subject to government

regulation,” and has therefore concluded that it warrants a lower level of protection

under the First Amendment. Ohralik, 436 U.S. at 456, 98 S. Ct. at 1918.

Correspondingly, the Court has set a lower bar by which to measure State

regulation of such speech—intermediate, rather than strict scrutiny. Fla. Bar, 515

U.S. at 623, 115 S. Ct. at 2375. To survive this level of review, the State “must

assert a substantial interest in support of its regulation” and demonstrate that the

restriction “directly and materially advances” that interest without sweeping more

widely than necessary. Id. at 624, 115 S. Ct. at 2376 (citing Cent. Hudson, 447

U.S. at 566, 100 S. Ct.at 2351).

The Court’s holdings in this area follow a clear trend. When the State seeks

to impose content-based restrictions on speech in a context in which its regulatory

interests are diminished, such as when a professional speaks to the public in a

nonprofessional capacity, courts apply the most exacting scrutiny. When the State

seeks to regulate speech by professionals in a context in which the State’s interest

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in regulating for the protection of the public is more deeply rooted, a lesser level of

scrutiny applies.

We think that the restriction at issue here fits cleanly within the latter

category, because both of the State interests implicated by the Act have deep

regulatory roots. First, Courts have long recognized the authority—duty, even—of

States to regulate the practice of professions to “shield[] the public against the

untrustworthy, the incompetent, or the irresponsible.” Thomas, 323 U.S. at 545, 65

S. Ct. at 329 (Jackson, J., concurring). See, e.g., Goldfarb v. Va. State Bar, 421

U.S. 773, 792, 95 S. Ct. 2004, 2016, 44 L. Ed. 2d 572 (1975) (“We recognize that

the States have a compelling interest in the practice of professions within their

boundaries, and that as part of their power to protect the public health, safety, and

other valid interests they have broad power to establish standards for licensing

practitioners and regulating the practice of professions.”); Watson v. Maryland, 218

U.S. 173, 176, 30 S. Ct. 644, 646, 54 L. Ed. 987 (1910) (“It is too well settled to

require discussion at this day that the police power of the states extends to the

regulation of certain trades and callings, particularly those which closely concern

the public health.”). 18

18

Pursuant to that authority, States commonly enact laws touching on what professionals

may say. Florida, for example, has quite a few regulations implicating speech by physicians.

See, e.g., Fla. Stat. § 381.026 (requiring physicians to communicate various information to

patients on request, including: the physician’s “name, function, and qualifications”; information

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Moreover, the authority of the State to regulate relationships of a fiduciary

character via the common law is, if anything, a more venerable proposition than

concerning the patient’s “diagnosis, planned course of treatment, alternatives, risks, and

prognosis”; various financial information; and a written “statement of patient rights and

responsibilities”); id. § 381.986 (requiring physicians who prescribe low-THC cannabis to

provide information to patients about the potential risks and side effects of, alternatives to, and

effectiveness of the treatment, as well as imposing various recording and reporting

requirements); id. § 456.41 (requiring physicians offering complementary or alternative health

care treatments to communicate to the patient, orally or in writing, “the nature, benefits, and risks

of the treatment,” as well as “the practitioner’s education, experience, and credentials in the

field,” and to indicate the provision of such information in the patient’s medical records); id. §

458.324 (requiring physicians treating patients diagnosed with or at a high risk for breast cancer

to provide various information about treatment alternatives to the patient and document the

provision of such information in the patient’s medical records); id. § 458.325 (requiring

physicians, prior to administering electroconvulsive or psychosurgical procedures to a patient, to

disclose information regarding the procedure); id. § 458.331 (listing various grounds for

disciplinary action, including “the use of fraud, intimidation, undue influence, or a form of

overreaching or vexatious conduct” to solicit patients; “failing to keep legible . . . medical

records” that identify responsible physicians “by name and professional title” and that include

sufficient information to “justify the course of treatment of the patient”; and “failing . . . to

provide patients with information about their patient rights and how to file a patient complaint”);

Fla. Admin. Code R. 64B8-9.007 (requiring surgeons to “verbally confirm the patient’s

identification, the intended procedure and the correct surgical/procedure site” before operating,

and to document such confirmation in the patient’s medical records ); id. R. 64B8-9.008

(proscribing all “verbal behavior” between a physician and a patient that could “reasonably be

interpreted as romantic involvement with [the] patient”); id. R. 64B8-9.013 (mandating detailed

information physicians must record prior to and during the course of prescribing controlled

substances for a patient; requiring physicians to use a “written treatment plan” with specific

content; requiring physicians to “discuss the risks and benefits of the use of controlled substances

with the patient”); id. R. 64B8-9.0141 (prohibiting physicians from “provid[ing] treatment

recommendations . . . via electronic or other means” unless the physician completes a

“documented patient evaluation,” discusses “treatment options and the risks and benefits of

treatment” with the patient, and “[m]aint[ains] . . . contemporaneous medical records”); id. R.

64B8-11.001 (imposing various restrictions on physician advertising); id. R. 64B8-11.002

(prohibiting licensed physicians from representing in their promotional communications that they

“are HIV negative or free from AIDS,” or implying or stating “that any other licensee is or may

be a greater risk to patients due to a failure or refusal to provide similar advertising or notice”);

id. R. 64B8-11.003 (requiring licensed physicians to identify themselves as such to their

patients).

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the principle that the State possesses regulatory authority over professions. See,

e.g., Twin-Lick Oil Co. v. Marbury, 91 U.S. 587, 588–89, 23 L. Ed. 328 (1875)

(“That a director of a joint-stock corporation occupies one of those fiduciary

relations where his dealings . . . with the beneficiary or party whose interest is

confided to his care, is viewed with jealousy by the courts, and may be set aside on

slight grounds, is a doctrine founded on the soundest morality, and which has

received the clearest recognition in this court and in others.”); see also 1 Joseph

Story, Commentaries on Equity Jurisprudence § 218, at 235–36 (13th ed. 1886)

(“In . . . cases [in which there is a fiduciary relation between the parties,] the law,

in order to prevent undue advantage from the unlimited confidence, affection, or

sense of duty which the relation naturally creates, requires the utmost degree of

good faith . . . in all transactions between the parties. If there is any

misrepresentation, or any concealment of a material fact, or any just suspicion of

artifice or undue influence, Courts of Equity will interpose . . . .”); see generally

Tamar Frankel, Fiduciary Law, 79–99 (2011) (tracing the roots of government

regulation of fiduciary relations back to Hammurabi).

Indeed, one could make the case that when enacting laws governing the type

of quintessential professional speech with which we are concerned here, the State

has even more regulatory leeway than when regulating promotional speech by

professionals, given the fiduciary context within which the former occurs.

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However, we need not determine conclusively whether a lesser form of scrutiny

ever applies to regulations of professional speech, because in this case the outcome

is the same whether a heightened intermediate scrutiny standard or some lesser

level of judicial scrutiny is applied. Cf. Sorrell v. IMS Health Inc., ___ U.S. ___,

___, 131 S. Ct. 2653, 2667, 180 L. Ed. 2d 544 (2011) (finding it unnecessary to

decide the precise level of scrutiny with which to evaluate speech restriction when

the result was the same under either of the two possible standards).

b.

Plaintiffs contend that strict scrutiny is required for several reasons. First,

they argue that the Act must satisfy strict scrutiny because it is a content-based

restriction on speech—i.e., it restricts physicians from speaking about a certain

topic: their patients’ status as firearm owners. See R.A.V. v. City of St. Paul, 505

U.S. 377, 382, 112 S. Ct. 2538, 2542, 120 L. Ed. 2d 305 (1992) (“Content-based

regulations are presumptively invalid.”) We readily agree that the Act regulates

speech on the basis of its content—“Plaintiffs want to speak to [their patients], and

whether they may do so under [the Act] depends on what they say.” See Holder,

561 U.S. at 27, 130 S. Ct. at 2723–24. But this does not seal the Act’s fate.

As explained in R.A.V., the Constitution suffers content-based restrictions

within certain limited categories of speech that society has determined do not merit

full First Amendment protection. See 505 U.S. 377 at 382–83, 112 S. Ct. at 2542–

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43. Such regulations “may [not] be made the vehicles for content discrimination

unrelated to their distinctly [regulable] conduct,” id. at 383–84, 112 S. Ct. at 2543,

but intra-category content discrimination is permissible when the basis for it is the

very reason the entire category of speech at issue receives less-than-full protection

under the First Amendment, see id. at 388, 112 S. Ct. at 2545.19 Thus “[a] State

might choose to prohibit only that obscenity which is the most patently offensive in

its prurience . . . [b]ut it may not prohibit . . . only that obscenity which includes

offensive political messages.” Id. at 388, 112 S. Ct. at 2546.

This is the case with the Act. The State made the commonsense

determination that inquiry about firearm ownership, a topic which many of its

citizens find highly private, falls outside the bounds of good medical care to the

extent the physician knows such inquiry to be entirely irrelevant to the medical

care or safety of a patient or any person. This accords neatly with the rationale for

affording diminished protection to the entire category of professional speech—i.e.,

19

In R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 2542, 120 L. Ed. 2d

305 (1992), the Supreme Court explicitly addressed only those categories of speech that have so

little value that they may be completely proscribed, such as obscenity, defamation, and fighting

words. See id. at 382–84, 112 S. Ct. at 2543. We can think of no reason why the Court’s

reasoning in R.A.V. should not extend, perforce, beyond wholly proscribable categories of speech

to those categories which, although they may not be of so little value as to warrant flat bans, have

traditionally been deemed to merit a diminished level of First Amendment protection, such as

commercial speech, or professional speech. King v. Governor of N.J., 767 F.3d 216, 236–37 (3d

Cir. 2014). Indeed, the Court indicated as much when it used several commercial speech cases

to illustrate how the doctrine worked in practice. See R.A.V., 505 U.S. at 388–89, 112 S. Ct. at

2546. We therefore proceed with this understanding.

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the State’s interest in regulating the profession to ensure that its citizens receive

safe and effective care. 20

Plaintiffs also suggest that the Act should trigger strict scrutiny because it is

a speaker-based regulation of speech. To the extent that Plaintiffs seriously

contend that this is an independent ground for strict scrutiny, Plaintiffs betray a

fundamental misunderstanding of the doctrine of professional speech. It simply is

not the case that every regulation of speech by professionals—all of which are, by

definition, speaker-based—is presumptively unconstitutional. The Supreme Court

has never framed its analysis in this way when scrutinizing regulations of speech

by professionals. See, e.g., Thompson v. W. States Med. Ctr., 535 U.S. 357, 366–

68, 122 S. Ct. 1497, 1503–04, 152 L. Ed. 2d 563 (2002) (reviewing law restricting

speech by licensed pharmacists and physicians); Fla. Bar, 515 U.S. at 622–24,

115 S. Ct. at 2375–76 (reviewing law restricting speech by lawyers); Edenfield v.

Fane, 507 U.S. 761, 765–67, 113 S. Ct. 1792, 1797–98, 123 L. Ed. 2d 543 (1993)

20

It may be contended that the basis for the State’s restriction is political rather than

medical in nature, and that as a result, the Act does not fall within R.A.V.’s exception. This

argument might have legs if the Act had simply prohibited all discussion of firearms by

physicians, or if it had restricted such speech on the basis of a particular viewpoint. Instead, the

Act affords physicians wide latitude to speak about firearms—to inquire, to record, even, in

some instances, to harass—right up to the point where the physician knows, or no longer

believes in good faith, that such speech is relevant to anyone’s medical care or safety. See supra

part IV.A. We think that by defining the boundaries of permissible speech in terms of medical

necessity, the State evinced scrupulous heed of the distinction between an impermissible

regulation of speech on the basis of content unrelated to the category in which it falls, and an

appropriate regulation of speech on a basis that is consistent with the reasons the entire category

may be regulated.

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(reviewing law restricting speech by accountants); Casey, 505 U.S. at 884, 112 S.

Ct. at 2824 (reviewing law compelling speech by physicians) (joint opinion);

Friedman v. Rogers, 440 U.S. 1, 8–14, 99 S. Ct. 887, 893–98, 59 L. Ed. 2d 100

(1979) (reviewing law restricting speech by optometrists).

The reason why restrictions on speech by professionals generally do not

offend the Constitution despite the fact that they discriminate on the basis of the

speaker’s identity is essentially the same reason that restrictions on the basis of the

content of the speech are permissible in this area. See R.A.V., 505 U.S. at 383, 112

S. Ct. at 2543. The basis for such restrictions is the very reason that the entire

class of speech gets diminished First Amendment protection. The State cannot

effectively pursue its interest in regulating professions if it may not draw laws by

reference to professional status. 21

Finally, although Plaintiffs sprinkle fleeting references to viewpoint

discrimination throughout their brief, we do not take them seriously to contend that

21

As the Supreme Court noted in R.A.V., however, this does not give the State free rein to

turn regulations of professional speech into “vehicles for content discrimination unrelated to their

distinctly [regulable] content.” 505 U.S. at 383–84, 112 S. Ct. at 2543. We think there exists a

nexus requirement in the area of speaker-based restrictions analogous to that present in the area

of content-based restrictions. Thus, while a State would be free to restrict the speech of all

physicians, or even of certain sub-categories of physicians, provided its rationale was consistent

with “the very reason the entire category of speech at issue” receives less than full protection

under the First Amendment, it could not, consistent with the First Amendment, impose a

restriction on the speech of all physicians who are registered Democrats, because such a

restriction would be entirely unrelated to the interest justifying greater regulatory leeway in this

area—that of ensuring that medical professionals provide safe and effective medical care. See id.

at 388, 112 S. Ct. at 2545.

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the Act “targets . . . particular views taken by speakers on a subject,” Rosenberger

v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S. Ct. 2510, 2516, 132

L. Ed. 2d 700 (1995), and for good reason. The Act plainly makes no distinction

between speech favoring firearm ownership and speech disfavoring firearm

ownership. The target of the Act’s restriction is speech of any viewpoint on the

subject of firearm ownership that the physician knows to be completely irrelevant

to the health and welfare of the patient or any other person.

c.

Accordingly, we will proceed under the rubric of intermediate scrutiny.

Under this standard, we must uphold the Act if it “directly advances” a

“substantial” State interest, and “is not more extensive than is necessary to serve

that interest.” See Cent. Hudson, 447 U.S. at 566, 100 S. Ct. at 2351.

In doing so, we find ourselves in good company. Three of our sister circuits

have either applied intermediate scrutiny or strongly suggested that some

intermediate level of review was appropriate when assessing regulations of

professional speech. See Stuart, 774 F.3d at 248 (4th Cir. 2014) (applying

intermediate scrutiny to strike down regulation of physicians’ speech); King, 767

F.3d at 235 (3rd Cir. 2014) (concluding that intermediate scrutiny was the

appropriate standard by which to evaluate restrictions on professional speech);

Pickup, 740 F.3d at 1227–28, 1231 (9th Cir. 2013) (situating speech by

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professionals that occurs within the confines of a professional relationship at the

midpoint on a continuum between speech by a professional to the public, which

receives “robust protection under the First Amendment,” and speech by a

professional which is “merely incidental” to the conduct of a profession, and

“subject to only rational basis review”).

4.

When conducting an intermediate scrutiny analysis, we look first to the

substantiality of the State’s interest. See Fla. Bar, 515 U.S. at 624, 115 S. Ct. at

2376. We may not propose hypothetical governmental interests, as in a rational

basis analysis; rather we must look to “the precise interests put forward by the

State . . . .” Id. (quotation marks omitted).

Here, the State asserts that the Act serves several substantial interests,

including safeguarding the privacy of patients and their families, facilitating access

to medical care, and preventing discrimination and harassment. 22 These interests

“obviously factor[] into” the State’s “paramount . . . objective,” Fla. Bar, 515 U.S.

at 624, 115 S. Ct. at 2376, in the area of professional regulation—preserving its

citizens from harmful or ineffective professional practices, see Fla. Stat.

22

Because we ultimately conclude that the State’s proffered interest in patient privacy is

substantial, we find further discussion of the State’s alternative interests unnecessary. See Fla.

Bar v. Went For It, Inc., 515 U.S. 618, 624 n. 1, 115 S. Ct. 2371, 2376, 132 L. Ed. 2d 541 (1995)

(noting that the State need not “point to more than one interest in support of its . . . restriction; a

single substantial interest is sufficient to satisfy Central Hudson’s first prong”).

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§ 456.003(2) (stating the Florida legislature’s belief that “the preservation of the

health, safety, and welfare of the public” is the only permissible objective of

regulations of the health professions). Citing the “social, political, and moral

controversy” surrounding firearm ownership in some circles, the State argues that

inquiry about the subject is perceived by many to be highly intrusive. State’s Br.

33 (quoting Johnson v. Bryco Arms, 224 F.R.D. 536, 543 (E.D.N.Y. 2004)). In

response to concerns expressed by constituents, the State asserts, the legislature

enacted the Act to shield patient privacy by limiting the solicitation of information

about firearm ownership whenever it is unnecessary to anyone’s medical care or

safety. 23 Id.

As noted above, the Supreme Court has deemed the State’s interest in

regulating the practice of professions for the protection of the public not merely

23

Some of the complaints received by the Florida legislature prior to the passage of the

Act reflect constituents’ concerns that their firearm-ownership status, once entered into their

medical record, may be disclosed to third parties. Plaintiffs contend that this is an irrational fear,

and that existing law provides sufficient safeguards for patient privacy. See infra part IV.A.4, at

72.

We need not speculate as to the reasons patients might be uncomfortable disclosing their

firearm-ownership status to their physicians, but we note that a patient might wish to keep any

number of subjects private when discussion of those subjects is not relevant to his or her medical

care. 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 sensitive subjects. It does so as a

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

compromising the patient’s privacy with regard to matters unrelated to their medical care or

safety, or the safety of others.

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substantial, but “compelling.” Goldfarb, 421 U.S. at 792, 95 S. Ct. at 2016.

Furthermore, the Supreme Court has also held that “the protection of potential

clients’ privacy is a substantial state interest.” Fla. Bar, 515 U.S. at 625, 115 S.

Ct. at 2376 (quoting Edenfield, 507 U.S. at 769, 113 S. Ct. at 1799). Although the

Act was presumably motivated primarily by the privacy concerns of physicians’

existing patients, as opposed to potential patients, we see no material difference in

the substantiality of the privacy interests at issue. We conclude that protecting the

public by regulating the medical profession so as to safeguard patient privacy is a

substantial state interest. Cf. Falanga v. State Bar of Ga., 150 F.3d 1333, 1344

(11th Cir. 1998) (“Unquestionably, the interests that the State . . . asserted are

substantial, namely, protecting the public from vexatious conduct [by attorneys]

. . . [and] preventing invasions of privacy . . . .”).

We move to the second step of the intermediate scrutiny analysis: whether

the Act directly advances the State’s substantial interest. To carry its burden here,

the State must establish that the harms that the Act seeks to prevent “are real, not

merely conjectural, and that the regulation will in fact alleviate these harms in a

direct and material way.” Turner, 512 U.S. at 664, 114 S. Ct. at 2470 (plurality

opinion). While the State may not rely on “mere speculation or conjecture,”

Edenfield, 507 U.S. at 770, 113 S. Ct. at 1800, it is not required “to present

‘empirical data . . . accompanied by a surfeit of background information’” to

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justify its restriction. Falanga, 150 F.3d at 1340 (quoting Fla. Bar, 515 U.S. at

628, 115 S. Ct. at 2378). “Rather, the State[’s] . . . case may rest ‘solely on history,

consensus, and simple common sense[.]’” Id. (second alteration in original)

(quoting Fla. Bar, 515 U.S. at 628, 115 S. Ct. at 2378). Further, “[t]he quantum of

empirical evidence needed to satisfy heightened judicial scrutiny of legislative

judgments will vary up or down with the novelty and plausibility of the

justification raised.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391, 120 S.

Ct. 897, 906, 145 L. Ed. 2d 886 (2000).

We conclude that the State has met its burden of proof under this step of the

analysis. As an initial matter, the record contains a number of anecdotes and

references to constituent complaints regarding unwelcome questioning about

firearm ownership from physicians. See supra note 2. Both the Supreme Court

and this Court have noted that anecdotal evidence may support a conclusion that

the challenged regulation directly and materially serves the State’s substantial

interest. See Fla. Bar, 515 U.S. at 627, 115 S. Ct. at 2377 (describing the

extensive anecdotal record presented by the State); Falanga, 150 F.3d at 1340

(noting anecdotal evidence of complaints by the public).

More importantly, however, given what the Act actually prohibits—record-

keeping about firearm ownership only when the physician knows such information

to be irrelevant, see supra part IV.A.1, inquiry about firearm ownership only when

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the physician lacks a good-faith belief that the information is relevant, see supra

part IV.A.2, and harassment about firearm ownership only when the physician

does not believe it necessary, see supra part IV.A.3—we think that “simple

common sense” furnishes ample support for the legislature’s decision. The State

need not point to peer-reviewed studies or conduct extensive surveys to establish

that proscribing highly intrusive speech that physicians themselves do not believe

to be relevant or necessary directly advances the State’s interest in protecting its

citizens from harmful or ineffective professional practices and safeguarding their

privacy. This is particularly true given the facial plausibility of the legislature’s

conclusion. See Nixon, 528 U.S. at 391, 120 S. Ct. at 906.

Plaintiffs dispute this commonsense conclusion by arguing that existing

federal and state laws sufficiently protect patient privacy. 24 As an initial matter,

we note that these laws protect information after it has been disclosed to

physicians; they do nothing to protect information from initial disclosure to

physicians and their staff. More to the point, if the physician has no need for the

information in the first place, then whether that information will be kept in

24

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 patient health information except to an enumerated list of entities. 45 C.F.R.

§ 164.502. Florida law also provides that a patient’s medical records must be kept confidential

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

records with a third party. Fla. Stat. § 456.057(7)(a).

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confidence is irrelevant. The principal harm targeted by the Act is the collection of

information regarding, and harassment about, firearm ownership when that

information is irrelevant to or unnecessary for the provision of medical care.

Plaintiffs further contend that because firearm ownership is heavily

regulated, and individuals who wish to own a firearm must provide considerable

personal information to the State, see Fla. Stat. § 790.065 (requiring prospective

firearm buyers to submit a wide range of personal information and undergo a

background check), patients should have no qualms about revealing their status as

firearm owners to physicians, and thus the Act does not further patient privacy.

Again, we find this argument to be inapposite. The fact that the State may possess

information about resident firearm owners is utterly immaterial to whether or not

physicians should have access to such information.25 Moreover, here again,

Plaintiffs mistake the actual working of the Act. The purpose of the Act, as we

read it, is not to protect patient privacy by shielding patients from any and all

discussion about firearms with their physicians; the Act merely requires physicians

to refrain from broaching a concededly sensitive topic when they lack any good-

faith belief that such information is relevant to the medical care or safety of their

25

Unlike in the Fourth Amendment, there is no “third-party exposure” exception that

somehow mitigates the State’s interest in protecting the privacy of its citizens. Cf. Smith v.

Maryland, 442 U.S. 735, 743–44, 99 S. Ct. 2577, 2582, 61 L. Ed. 2d 220 (1979) (explaining that

for the purposes of the Fourth Amendment, “a person has no legitimate expectation of privacy in

information he voluntarily turns over to third parties”).

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patients or others. Pointing to circumstances that allegedly diminish patients’

privacy per se is off-base.

Given the highly disparate power balance of the physician-patient

relationship,26 we find it to be clear that extracting private information from a

patient, knowing such information to be irrelevant to the provision of medical care,

is a real harm. In these circumstances, it is a matter of common sense that

restricting unnecessary inquiry eliciting such information directly advances the

26

One scholar has summarized the power dynamics of the physician-patient relationship

thusly:

[R]esearch shows [that] the purpose and structure of the doctor-patient relationship vest

physicians with immense authority and power in the eyes of patients. Physicians’ authority

derives from their superior knowledge and education, their prestigious social and economic

status, and the “charismatic authority” that derives from their symbolic role as conquerors of

disease and death. . . . The confluence of these factors leads to an institutionalization of

physicians’ “professional dominance” within the structure of doctor-patient interaction that in

itself legitimizes physician expressions.

In the face of this dominance, patients suspend their critical faculties and defer to

physicians’ opinions. Patients’ disempowered position stems from a number of factors,

including lack of medical knowledge, the anxiety that accompanies illness, and the need to

believe that physicians have the power and competence needed to cure them.

....

These structural inequities also counteract patients’ ability to question physicians and

redirect the course of a conversation, even if patients have an acute desire to acquire information.

Moreover, socio-economic differences between doctor and patient, particularly differences of

race, class, gender, or age, further impede communication.

Paula Berg, Toward A First Amendment Theory of Doctor-Patient Discourse and the

Right to Receive Unbiased Medical Advice, 74 B.U. L. Rev. 201, 225–28 (1994) (footnotes

omitted).

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State’s substantial interest in regulating the medical profession to prevent harmful

or ineffective medical care and safeguard patient privacy.

Under the third and final step of the intermediate scrutiny analysis, we must

determine whether the Act is more extensive than necessary to serve this interest.

The State “must demonstrate narrow tailoring of the challenged regulation to the

asserted interest—‘a fit that is not necessarily perfect, but reasonable; that

represents not necessarily the single best disposition but one whose scope is in

proportion to the interest served.’” Greater New Orleans Broad. Ass’n, Inc. v.

United States, 527 U.S. 173, 188, 119 S. Ct. 1923, 1932, 144 L. Ed. 2d 161 (1999)

(quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S. Ct.

3028, 3035, 106 L. Ed. 2d 388 (1989)).

Frankly, we read the Act to be precisely tailored to the State’s legitimate

interests. The State has not made a sweeping ex ante judgment that all

conversation and record-keeping about firearm ownership is inappropriate. The

Act does not even represent a legislative conclusion that a subset of physician

speech is categorically inappropriate. Instead, the Act’s prohibitions are directly

and entirely coupled to physicians’ own good-faith judgments about whether such

inquiry or record-keeping is medically appropriate in the circumstances of the

particular patient’s case. See supra part IV.A. If, as we have concluded, the State

has a substantial interest in regulating the medical profession to prevent ineffective

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medical care, in this instance by protecting patients from unnecessary breaches of

privacy, what narrower way to advance this interest than by impressing upon

physicians the necessity that any inquiry or record-keeping about firearm

ownership be the result of a genuine, subjective determination based on medical

need? The Act does not falter on this ground.

Accordingly, we hold that the District Court erred by concluding that the Act

violates the First Amendment. The Act withstands intermediate scrutiny as a

permissible restriction of professional speech.

5.

Finally, we address the second of Plaintiffs’ First Amendment challenges:

overbreadth. A statute is “overbroad if a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”

United States v. Stevens, 559 U.S. 460, 473, 130 S. Ct. 1577, 1587, 176 L. Ed. 2d

435 (2010) (quotation marks omitted). “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)).

We reject this challenge for the same reasons that we rejected Plaintiffs’

conventional facial free speech challenge. The Act does not prohibit a substantial

amount of protected speech because, even accepting that the Act “regulates and

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restricts every practitioner’s speech on the subject of firearms,” it only burdens

speech that, as judged by the physician in good faith, lacks a sufficient nexus to the

medical care or safety of a particular patient. As the State may validly legislate to

ensure “the practice of professions within their boundaries,” Goldfarb, 421 U.S. at

792, 95 S. Ct. at 2016, and as no one argues that concededly irrelevant speech lies

within the scope of good medical practice, we hold that the Act is not overbroad.

C.

Concluding, we think it appropriate to make two points. First, although we

hold today that the Act does not facially conflict with the requirements of the

Constitution, we do not, by that holding, foreclose as-applied challenges. 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 allegedly 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.

Second, our decision should not be read as a pronouncement on the Act’s

“wisdom, need, [or] propriety.” Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.

Ct. 1678, 1680, 14 L. Ed. 2d 510 (1965). That is not our job. Our responsibility,

simply and supremely, is “to decide cases agreeably to the Constitution and laws of

the United States.” Id. at 530, 85 S. Ct. at 1707 (Stewart, J., dissenting) (quotation

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marks omitted). Having concluded that the Act does not offend either the First or

the Fourteenth Amendments of the Constitution, we must uphold it.

V.

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:

The Majority has vacated its original opinion and replaced it with one that,

unlike the original opinion, subjects Florida’s Firearm Owners’ Privacy Act (Act)

to First Amendment scrutiny. While this is an encouraging development, the

Majority believes the Act survives intermediate scrutiny. It does not. For this

reason, I continue to dissent.

I.

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

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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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

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 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

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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

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 advance 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

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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). The Majority reverses

and holds that the Act survives intermediate scrutiny under the First Amendment.

[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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Supreme Court and Eleventh Circuit precedent, however, supports the conclusion

that the Act cannot survive intermediate scrutiny.

II.

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).

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

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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 Florida 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 legislator, 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 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

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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,

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

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

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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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

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,4 will stop asking about and recording

this information.5

4

And how will physicians be able to make the relevance determination without

inquiring? I will return to this issue in the coming discussion.

5

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

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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

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

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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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. 6

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

6

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,

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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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

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.7

7

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

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This text is long and has been trimmed here. Open the source document for the complete record.