Sitting en banc––the full eleven–judge panel––the Court heard argument in 2016 and released its opinion on February 16, 2017. The decision, Wollschlaeger v. Governor of the State of Florida, pit doctors and medical professionals from Florida against a 2011 law referred to as Florida’s Firearms Owners’ Privacy Act (FOPA). The law’s purpose is to restrict Florida doctors and medical professionals from discussing firearm ownership and possession with their patients.
The law was created in response to six anecdotal complaints from patients who felt that their doctors and medical professionals were “invading their privacy” with questions regarding whether or not firearms were present in their home. A representative of the National Rifle Association testified at a subcommittee hearing that “questioning patients about gun ownership to satisfy a political agenda . . . needs to stop.” Proponents of the law posited that doctors and medical professionals were using these questions as a means to promote anti–firearm attitudes and patients unwilling to answer questions were being discriminated against.
“The relevant portions of the law that were challenged are referred to as the record–keeping, inquiry, anti–discrimination, and anti–harassment provisions.”
After the law’s passage in 2011, doctors and medical professionals filed a protective injunction to its enforcement until the judiciary could decide its constitutionality. A district court sitting in Florida initially found that portions of the law violated the First Amendment and struck them down accordingly. The State appealed the decision to the Eleventh Circuit who reversed the decision of the lower court in a three–judge sitting panel. The doctors and medical professionals appealed to the Court to rehear the case en banc, which the Court subsequently granted.
The relevant portions of the law that were challenged are referred to as the record–keeping, inquiry, anti–discrimination, and anti–harassment provisions. The record–keeping provision restricts doctors and medical professionals from recording information about firearm ownership into a patient’s medical record. The inquiry provision prohibits doctors and medical professionals from writing or asking questions about ownership of firearms by the patient or by a family member of the patient unless the doctor or medical professional believes in good faith the information is relevant to the patient’s medical care or safety. The anti–discrimination provision forbids doctors and medical professionals from discriminating against a patient solely on the basis of ownership and possession of a firearm. The anti–harassment provision bars doctors and medical professionals from unnecessarily harassing a patient about firearm ownership during an examination.
“…the Court found that the anti–discrimination provision did not, on its face, implicate speech, thus it fell outside the scrutiny of the First Amendment’s protection.”
The Court analyzed the appropriate standard of review for the provisions before deciding their constitutionality. As to the record–keeping and inquiry provisions, the Court found that these provisions limited the ability of certain speakers––doctors and medical professionals––to write and speak about the ownership of firearms, which restricted their ability to communicate or convey a message. This effectively triggered First Amendment scrutiny. The anti–harassment provision was found to limit speech on the basis of its content because the text “during an examination” lent itself to meaning verbal harassment rather than physical contact due to the setting being in a medical office. However, the Court found that the anti–discrimination provision did not, on its face, implicate speech, thus it fell outside the scrutiny of the First Amendment’s protection.
The Court classified the former three provisions as speaker–focused, content–based restrictions. The Court’s analysis then takes an interesting turn. Under First Amendment analysis, there are three levels of scrutiny that a law regulating a constitutional right is subject to pass in order to clear constitutional protection. These are rational basis, intermediate/heightened, and strict scrutiny. Typically, a content–based speech restriction triggers strict scrutiny. To pass, such scrutiny requires the government to show there is a compelling governmental interest in regulating this type of speech that has been narrowly tailored to achieve that interest. The Court instead did not address whether strict scrutiny applied to the three provisions and decided them under heightened scrutiny as articulated in Sorrell v. IMS Health, Inc.
The reason for this seemed to center around the speech being professional rather than purely private. The Supreme Court of the United States has not squarely addressed the level of protection for professional speech, thus the Court was left to decide whether intermediate or strict scrutiny was appropriate. Circuit Judge Charles Wilson, concurring in the majority decision, hesitated to agree that the level of scrutiny should be intermediate just because the regulation was in the realm of private professionals and the Supreme Court has not specifically identified that as a particular category of speech. He felt that although the majority was correct that the provisions failed heightened scrutiny, it was important to keep with the historical precedence that content–based speech restrictions trigger strict scrutiny.
“The argument pitting the First Amendment against the Second Amendment effectively found no foothold with the Court.”
To pass intermediate scrutiny, the State had to show that the three challenged provisions furthered an important government interest by means that were substantially related to that interest.
The first interest that the State asserted was protecting the Second Amendment right of Floridians to own and bear firearms. This argument was interesting because it appeared to have the NRA’s interests embedded within; however, the Court was unpersuaded because although the “protection of Second Amendment rights is a substantial government interest,” the State presented no evidence that any doctors or medical professionals had taken patient’s firearms or otherwise infringed on patients’ Second Amendment rights. The Court went on to add that the right to own and possess firearms did not preclude “questions about, commentary on, or criticism for the exercise of that right.” The argument pitting the First Amendment against the Second Amendment effectively found no foothold with the Court.
The Court reasoned that “in ‘the fields of medicine and public health . . . information can save lives,’ doctors, therefore, ‘must be able to speak frankly and openly to patients.’” It then dispensed with the State’s first interest by articulating that Florida cannot burden the speech of doctors and medical professionals to shift public debate. The second interest argued was protecting patient privacy and the chilling effect of disclosure and record–keeping.
A portion of the FOPA provisions that was not challenged by doctors and medical professionals allows patients to “decline to answer or provide any information regarding ownership of a firearm.” The Court reasoned that this portion of the statute afforded patients with privacy concerns appropriate protection because they could simply refuse to answer any questions and since the State did not explain why that portion was insufficient to protect patient privacy, the State failed to satisfy heightened scrutiny. The Court also found that no evidence suggested that doctors and medical professionals had been disclosing patient information about firearm ownership inappropriately and that the State’s hypothetical argument that this information was vulnerable to hacking, theft, or some other intrusion could not hold up under heightened scrutiny because that rationale was not relied upon when the statute was enacted.
The State’s third interest was ensuring access to health care without discrimination or harassment. The Court was unpersuaded by the State’s argument because if the State was truly interested in reducing discrimination against firearm-owning patients, they would have prohibited doctors and medical professionals from terminating their relationships with patients who refuse to answer questions about firearm ownership rather than giving patients the choice to decide whether or not to answer without “altering existing law regarding the physician’s ability to choose who their patients will be.” The Court also did not accept the State’s contention that within this interest doctors and other medical professionals are in a position of authority over their patients in the doctor–patient relationship. From the six anecdotal complaints the Court was privy to, nothing in the record suggested that patients who were concerned by questions about firearm ownership were psychologically unable to choose another medical provider. The Court borrowed the language of Sorrell by stating, “[i]t is doubtful that concern for ‘a few’ [patients] who may have ‘felt coerced and harassed’ by [doctors] can sustain . . . broad content-based [regulations] like [FOPA’s record-keeping, inquiry, and anti–harassment provisions].”
The State’s final contention was the need to regulate the medical profession to protect the public. The record presented no evidence to the Court that asking questions about ownership of firearms was “medically inappropriate, ethically problematic, or practically ineffective.” The justices reasoned that the record–keeping, inquiry, and anti–harassment provisions were not narrowly tailored to meet the concerns of the anecdotes in the record and as such were insufficient to satisfy intermediate scrutiny, thus violating the First Amendment. The Court then held that the anti–discrimination provision was not unconstitutional, while also affirming five other provisions within FOPA.
With a 10-1 decision being handed down, it is apparent that this First Amendment case was relatively easy for the Eleventh Circuit. Doctors and medical professionals may have their conduct regulated to protect the public, however, the legislature cannot cross the line of chilling speech of those who are speaking truthfully for the benefit of their patient’s safety. Upon the release of the Court’s opinion, Florida Governor Rick Scott began reviewing the decision in preparation to take appropriate measures. It will be interesting to see what amendments the State will propose to the Privacy Act going forward.