Wollschlaeger v. Governor of Fla.

• Decision Date: 16 February 2017
• Docket Number: No. 12-14009,12-14009
• Parties: Dr. Bernd WOLLSCHLAEGER et al., Plaintiffs/Appellees, v. GOVERNOR, State of FLORIDA et al., Defendants/Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

848 F.3d 1293

Dr. Bernd WOLLSCHLAEGER et al., Plaintiffs/Appellees,

v.GOVERNOR, State of FLORIDA et al., Defendants/Appellants.

No. 12-14009

United States Court of Appeals, Eleventh Circuit.

February 16, 2017

Douglas Hallward–Driemeier, Bruce S. Manheim, Jr., Mariel Goetz, Julia Lewis, Augustine Ripa, Ropes & Gray, LLP, Jonathan E. Lowy, Daniel R. Vice, Brady Center to Prevent Gun Violence, Washington, DC, Richard D. Batchelder, Jr., Deanna Barkett FitzGerald, Alexandra Roth, Ropes & Gray, LLP, Boston, MA, Dennis G. Kainen, Weisberg Kainen Mark, PL, Hal M. Lucas, Hal M. Lucas, P.A., Edward M. Mullins, Astigarraga Davis, Miami, FL, Jordan E. Pratt, Attorney General's Office, Tallahassee, FL, for Plaintiffs–Appellees.

Jason Vail, Jolly Peterson & Truckenbrod, PA, Pam Bondi, Denise Mayo Harle, Rachel E. Nordby, Timothy David Osterhaus, Jonathan L. Williams, Attorney General's Office, Tallahassee, FL, for Defendants–Appellants.

Anthony T. Caso, Center for Constitutional Jurisprudence, Chapman Univ. School of Law, Orange, CA, Jordan E. Pratt, Attorney General's Office, Tallahassee, FL, David H. Fry, Bryan H. Heckenlively, Juliana Mariko Yee, Munger Tolles & Olsen, LLP, San Francisco, CA, Richard Harry Levenstein, Kramer Sopko & Levenstein PA, Stuart, FL, Charles J. Cooper, Peter A. Patterson, David H. Thompson, Cooper & Kirk, PLLC, David J. Weiner, Arnold & Porter Kaye Scholer, LLP, Washington, DC, Thomas Richard Julin, Jamie Zysk Isani, Gunster Yoakley & Stewart, PA, Nancy Gbana Abudu, Maria Kayanan, ACLU Foundation of Florida, Inc., Gerald Edward Greenberg, Gelber Schachter & Greenberg, PA, Grace Lee Mead, Stearns Weaver Miller Weissler Alhadeff & Sitterson, PA, Miami, FL, Randall C. Marshall, American Civil Liberties Union, Montgomery, AL, Joseph Gary Samuel Greenlee, The Law Offices of David A. Helmer, LLC, Frisco, CO, Stephen Porter Halbrook, Stephen P. Halbrook Law Office, Fairfax, VA, Caleb R. Trotter, Deborah J. La Fetra, Pacific Legal Foundation, Sacramento, CA, Leonard Martin Reeder, Jr., Reeder & Reeder, PA, Jupiter, FL, for Amici Curiae.

Paulette Brown, American Bar Association, Chicago, IL, William C. Hubbard, Nelson Mullins Riley & Scarborough, LLP, Columbia, SC, American Bar Association, Richard J. Ovelmen, Justin Samuel Wales, Carlton Fields Jorden Burt, PA, Ari Simon Bargil, Institute For Justice, Miami, FL, Jordan E. Pratt, Attorney General's Office, Tallahassee, FL, Michael David Sloan, Carlton Fields Jorden Burt, PA, West Palm Beach, FL, Paul Michael Sherman, Institute for Justice, Arlington, VA, Gregory Andrew Castanias, Charlotte Taylor, Jones Day, Washington, DC, Peter Canfield, Jones Day, Atlanta, GA, J. Adam Skaggs, Everytown for Gun Safety, New York, NY, for Interested Parties–Amici Curiae.

Before ED CARNES, Chief Circuit Judge, and TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

JORDAN, Circuit Judge:^*

Despite its majestic brevity—or maybe because of it—the freedom of speech clause of the First Amendment sometimes proves difficult to apply. See, e.g. , Burt Neuborne, Madison's Music: On Reading the First Amendment 5 (2015) ("Reading the First Amendment isn't easy."); Saxe v. State College Area Sch. Dist. , 240 F.3d 200, 218 (3d Cir. 2001) (Rendell, J., concurring) ("[T]here are no easy ways in the complex area of First Amendment jurisprudence."). Yet certain First Amendment principles can be applied with reasonable consistency, and one of them is that, subject to limited exceptions, "[c]ontent-based regulations [of speech] are presumptively invalid." R.A.V. v. City of St. Paul , 505 U.S. 377, 382, 112 S.Ct. 2538 (1992).

This particular principle looms large in this case, which concerns certain provisions of Florida's Firearms Owners' Privacy Act, Chapter 2011–112, Laws of Florida (codified at Fla. Stat. §§ 790.338, 456.072, 395.1055, & 381.026 ). And that is because some of FOPA's provisions regulate speech on the basis of content, restricting (and providing disciplinary sanctions for) speech by doctors and medical professionals on the subject of firearm ownership.

Shortly after FOPA was enacted in 2011, a number of doctors and medical organizations filed suit in federal court against various Florida officials, challenging some of the Act's provisions as unconstitutional. Ruling on cross-motions for summary judgment, the district court held that FOPA's record-keeping, inquiry, anti- discrimination, and anti-harassment provisions violated the First and Fourteenth Amendments, and permanently enjoined their enforcement. See Wollschlaeger v. Farmer , 880 F.Supp.2d 1251 (S.D. Fla. 2012) (Wollschlaeger I ). The state officials appealed, and a divided panel of this court issued three opinions—each using a different First Amendment standard of review—upholding the challenged provisions of FOPA. See Wollschlaeger v. Governor of Fla. , 760 F.3d 1195 (11th Cir. 2014) (Wollschlaeger II ); Wollschlaeger v. Governor of Fla. , 797 F.3d 859 (11th Cir. 2015) (Wollschlaeger III ); Wollschlaeger v. Governor of Fla. , 814 F.3d 1159 (11th Cir. 2015) (Wollschlaeger IV ). We voted to rehear the case en banc and heard oral argument in June of 2016.

Exercising plenary review, see ACLU of Fla., Inc. v. Miami – Dade County Sch. Bd., 557 F.3d 1177, 1206 (11th Cir. 2009), and applying heightened scrutiny as articulated in Sorrell v. IMS Health, Inc. , 564 U.S. 552, 563–67, 571–72, 131 S.Ct. 2653 (2011), we agree with the district court that FOPA's content-based restrictions—the record-keeping, inquiry, and anti-harassment provisions—violate the First Amendment as it applies to the states. See U.S. Const. amend. I ("Congress shall make no law ... abridging the freedom of speech[.]"); Stromberg v. California , 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) ("[T]he conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech."). And because these three provisions do not survive heightened scrutiny under Sorrell , we need not address whether strict scrutiny should apply to them. We also conclude, this time contrary to the district court, that FOPA's anti-discrimination provision—as construed to apply to certain conduct by doctors and medical professionals—is not unconstitutional. Finally, we concur with the district court's assessment that the unconstitutional provisions of FOPA can be severed from the rest of the Act.

I

As part of their medical practices, some doctors routinely ask patients about various potential health and safety risks, including household chemicals, drugs, alcohol, tobacco, swimming pools, and firearms. See Joint Statement of Undisputed Facts, D.E. 87, at ¶ 18. A number of leading medical organizations, and some of their members, believe that unsecured firearms "in the home increase risks of injury, especially for minors and those suffering from depression or dementia." Id. at ¶ 20.

In an effort to prevent and reduce firearm-related deaths and injuries, particularly to children, the American Medical Association "encourages its members to inquire as to the presence of household firearms as a part of childproofing the home and to educate patients to the dangers of firearms to children." Id. at ¶ 4. Health Policy H-145.990, enacted by the AMA in 1989, "supports increasing efforts to reduce pediatric firearm morbidity and mortality by encouraging its members to (a) inquire as to the presence of household firearms as a part of childproofing the home; (b) educate patients to the dangers of firearms to children; (c) encourage patients to educate their children and neighbors as to the dangers of firearms; and (d) routinely remind patients to obtain firearm safety locks, to store firearms under lock and key, and to store ammunition separately from firearms[.]"

The American Academy of Pediatrics and the American Academy of Family

Physicians—as well as their Florida chapters—follow a similar approach. They "recommend that pediatricians incorporate questions about firearms into the patient history process and ... have policies stating that firearm safety education to patients is a necessity." Joint Statement of Undisputed Facts, D.E. 87, at ¶ 16.

A

In 2011, the Florida Legislature learned that a pediatrician in Ocala had reportedly told a mother that she would have to find a new physician for her child due to her refusal to disclose information about firearm ownership in the family home. The pediatrician explained that he asked all of his patients the same questions "in an effort to provide safety advice in the event there was a firearm in the home." Id. at ¶ 3. He also said that he asked other similar questions, such as whether there was a pool in the home, to give safety advice to parents. The mother felt that the question "invaded her privacy," but the record is silent as to whether she ultimately answered the questions posed to her about firearms. Id .

The Florida Legislature also learned, anecdotally, about five other incidents in which patients complained that doctors and medical professionals had asked unwelcome questions or made purportedly improper comments regarding their ownership of firearms. A state representative said that his daughter's pediatrician inquired if he owned a firearm, and then asked him to remove the firearm from the home. Id. at ¶ 5. An email described how a mother "was separated from her children while medical personnel ... interrogated" them about firearm ownership and put information about such ownership in their medical records. Id. at ¶ 6. One doctor refused to treat a child because he wanted to know if there were firearms in the home. Id. at ¶ 8. A patient, according to a state senator, was told that disclosing firearm ownership was a Medicaid requirement. Id. at ¶ 9. And another patient was informed that Medicaid does not pay for care if patients refuse to answer firearm-ownership questions. Id. at ¶ 10.

A representative of the National Rifle Association reported...