The 11th Circuit Court of Appeals ruling en banc found that parts of the State of Florida’s Firearms Owners Privacy Act were unconstitutional restrictions on the freedom of speech. This 10-1 overturned an earlier ruling by a 3-judge panel of the 11th Circuit that had ruled in favor of the act. The case, Wollschlager v. Florida, had been euphemistically called the “Docs v. Glocks case”. The State of Florida had brought this case to the 11th Circuit on appeal from the US District Court for the District of South Florida.
In reaction to anecdotal evidence that some doctors, particularly pediatricians, were refusing treatment to children whose parents refused to answer questions regarding firearms as well as “interrogating” children regarding firearms outside the presence of their parents, the Florida Legislature passed the act in 2011. The Firearms Owners Privacy Act added provisions to medical privacy concerning firearms ownership and included disciplinary measures for violating this privacy. The provisions at issue were the ones dealing with record keeping, inquiry, anti-discrimination, and anti-harassment.
There were two majority opinions on this case from the court. The first by Judge Adalberto Jose Jordan, an Obama appointee, found that:
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 (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 (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.
He concluded by remanding the case back to District Court so that their permanent injunction could be amended to reflect the findings of the Court of Appeals.
Judge Stanley Marcus, a Clinton appointee, agreed with the other majority opinion but was rather skeptical that the anti-discrimination section of the law wouldn’t be used to also regulate speech.
I also worry that the discrimination provision appears to be a variant of the
harassment provision. Because the majority opinion strikes down the harassment
provision, my concern is that the state will now use the discrimination provision to
punish harassing conduct. The Act defines neither harassment nor discrimination.
It seems to me that the same speech that constituted harassment could now
constitute “discriminatory harassment”3 and thus be prohibited.
However, I also recognize that the Supreme Court has stated that
anti-discrimination provisions prohibiting discriminatory conduct “do not, as a
general matter, violate the First or Fourteenth Amendments.” See Hurley v. IrishAm.
Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 571–72, 115 S. Ct.
2338, 2346 (1995). Based on this guiding principle, and on a narrow reading of
the provision, I would not strike down the discrimination provision. But I remain
skeptical of the government’s motivation behind this Act. And I urge that in all
future cases reviewing content- and viewpoint-based speech regulations we remain
steadfast in our resolve to protect speech and be wary of any law that muzzles
entire categories of speech.
Judge William Pryor, a Bush appointee and presumed finalist for the recent Supreme Court vacancy, also wrote a concurring opinion. He argued that both the First and Second Amendments were important. However, in the course of protecting one right, another right should not be slighted.
We should not be swayed by the argument that the First Amendment may be
curtailed when other constitutional rights need “protection.” In this context,
“protection” is a misnomer. The Constitution protects individual rights from
government infringement, but freedom thrives on private persuasion. That the
government may not establish a religion, U.S. Const. Amend. I., or ban handguns,
U.S. Const. Amend. II, does not suggest that private individuals may not start a
church or give away their guns. The Second Amendment is not infringed when
private actors argue that guns are dangerous any more than when private actors
support the positions of the National Rifle Association. The “theory of our
Constitution” is that “the best test of truth is the power of the thought to get itself
accepted in the competition of the market.” Abrams v. United States, 250 U.S. 616,
630 (1919) (Holmes, J., dissenting). The Florida Legislature overstepped the
boundaries of the First Amendment when it determined that the proper remedy for
speech it considered “evil” was “enforced silence,” as opposed to “more speech.”
Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
Finally, Judge Gerald Tjoflat, a Ford appointee, wrote a blistering dissent which called into question the appropriate level of scrutiny applied by the majority opinions. Unlike the rest of his colleagues, he found that FOPA was narrowly tailored and would have passed even strict scrutiny. He concluded:
The majority and I agree that Florida possesses a substantial interest in
protecting both Floridians’ reasonable expectation of privacy during medical
treatment and the full exercise of their Second Amendment rights. If that is so,
then it is hard to imagine a law more precisely tailored to advance those substantial
state interests than the one presently before us. The Act does not categorically
restrict the speech of medical professionals on the subject of firearms. Instead, it
simply requires an individualized, good faith judgment of the necessity of speech
related to firearm ownership to provide competent medical care to a patient. The
individualized assessment of medical appropriateness required under the Act does
not foreclose the ability of a physician to question a patient, but instead carefully
weighs that right against Florida’s undoubtedly substantial interest in regulating
the medical profession to protect the constitutional rights of all Floridians. In my
judgment, the Act “narrowly protects patients in a focused manner in order to
advance the State’s compelling interest in protecting the Second Amendment’s
guarantee to keep and bear arms and patients’ privacy rights in their medical
records, exactly the sort of tailoring [even] strict scrutiny requires.” Id. at 1201.
Therefore, I respectfully dissent from my colleagues’ judgment that the First
Amendment requires us to declare Florida’s well-considered legislative judgment
unconstitutional.
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