Recent Case Developments

Docs v. Glocks1: Restricting Doctor's Professional Speech in the Name of Firearm Owner Privacy - Wollschlaeger v. Governor of Florida2 - Dr. Bernd Wollschlaeger, other health care practitioners, and various Florida chapters of medical professional organizations ("Plaintiffs") are suing the Governor of Florida and state officials ("the State") for enacting the Firearm Owners' Privacy Act ("the Act").3 The Act protects firearm owners' privacy by prohibiting medical professionals from: asking about gun ownership; recording gun ownership information in medical records; harassing patients about gun ownership; and discriminating against patients who own guns.4 Among the claims Plaintiffs filed are allegations that the Act violates the First Amendment by imposing an unconstitutional restriction on speech and preventing "open and free exchanges of information and advice with their patients about ways to reduce the safety risks posed by firearms."5On July 24, 2010, the Ocala Star Banner reported that a local mother was forced to find a new pediatrician after she refused to tell her child's doctor if she or her husband owned a gun.6 The child's doctor claims he routinely asked parents about guns in the home so he could provide advice on how to keep their children safe.7 After much media attention8, a bill was introduced in the Florida state legislature in January 2011, prohibiting medical personnel from asking patients about gun ownership, recording gun ownership information in medical records, and conditioning receipt of care on a patient's answers.9 As the bill went through the House of Representatives' and Senate's Criminal Justice, Health and Human Services, and Judiciary Committees, the bill was refined to include specific monetary fines for violations and a comprehensive disciplinary structure.10 On June 2, 2011, Governor Rick Scott signed the Firearm Owners' Privacy Act.11Shortly thereafter on June 6, 2011, Plaintiffs filed suit in the District Court for the Southern District of Florida ("the District Court").12 Plaintiffs alleged that certain provisions of the Act "violate[d] the First and Fourteenth Amendments of the United States Constitution" and sought declaratory and injunctive relief.13 The District Court granted a motion for preliminary injunction on September 14, 2011 after applying a strict scrutiny standard used for determining the constitutionality of content-based restrictions in commercial speech.14 The District Court followed the injunction by granting a motion of summary judgment on June 29, 2012, holding that the Act's inquiry, recordkeeping, discrimination and harassment provisions were unconstitutional under both the strict scrutiny standard and the Gentile balancing test.15 Enforcement of the provisions was thus permanently enjoined.16The State appealed to the United States Court of Appeals for the Eleventh Circuit ("the Court"), which held on July 25, 2014 that the Act is a constitutional regulation of professional conduct that has an incidental burden on physician speech. Therefore, the Act does not violate the First Amendment.17 The Court applied a "personal nexus" framework and held that the Act passed constitutional muster because the regulation specifically targeted an area where the "personal nexus between professional and client" was strongest and restricted speech "only in the service of defining the practice of good medicine, in the context of the very private, physician-patient relationship."18On July 28, 2015, the Court vacated and superseded their holding sua sponte.19 Instead of applying a "personal nexus" framework, the Court set forth a twodimensional model of speech, comparing the professional effectivity of the speech ("whether the physician is speaking in furtherance of the practice of medicine or not") with the relational context of the speech ("whether the physician is speaking within a fiduciary relationship or not").20 Using this framework, the Court was able to identify relevant interests and thus determine what type of scrutiny to apply. …