Gun gag rule case provides good overview of post-Reed First Amendment doctrine

Wollschlaeger v. Governor, No. 12-14009 (11th Cir. Feb. 16, 2017)

The court of appeals at last mostly overturns Florida’s Firearms Owners’ Privacy Act (FOPA), after several false starts.

The AMA “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,” as does the American Academy of Pediatrics and the American Academy of Family Physicians. But, 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 doctor said he asked all his patients so he could provide safety advice, and that he asked similar questions, such as whether there was a pool in the home. “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.” The legislature also learned of “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.” Two anecdotes involved claims that disclosing firearm ownership was a Medicaid requirement.

As a result, the legislature enacted FOPA, which contained record-keeping, inquiry, anti-discrimination, and anti-harassment provisions. The record-keeping provision states that a doctor or medical professional “may not intentionally enter any disclosed information concerning firearm ownership into [a] patient’s medical record” if he or she “knows that such information is not relevant to the patient’s medical care or safety, or the safety of others.” The inquiry provision states that a doctor or medical professional “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” unless he or she in “good faith believes that this information is relevant to the patient’s medical care or safety, or the safety of others.” The anti-discrimination provision states that a doctor or medical professional “may not discriminate against a patient based solely” on the patient’s ownership and possession of a firearm. The anti-harassment provision states that a doctor or medical professional “should refrain from unnecessarily harassing a patient about firearm ownership during an examination.”

The relevancy standard means that doctors can’t ask all their patients, or all their patients’ parents, whether they own firearms or have firearms in their homes, as part of a standard intake questionnaire. As the panel opinion in this case concluded, such inquiries (and record-keeping) are appropriate only if the doctor or medical professional has “some particularized information about the individual patient, for example, that the patient is suicidal or has violent tendencies.” Violations of these provisions are “grounds for disciplinary action,” punishable by a fine of up to $10,000 per offense, a letter of reprimand, probation, suspension, compulsory remedial education, or permanent license revocation.

The court had little trouble finding these to be content-based limits on speech; even the anti-harassment provisions primarily targeted questions or advice, not conduct. “[A]nti-harassment laws, insofar as they regulate speech based on content, are subject to First Amendment scrutiny.” Under Reed, such rules are normally subject to strict scrutiny even assuming they are viewpoint-neutral. But even under Sorrell’s heightened but not strict scrutiny, FOPA’s record-keeping, inquiry, and anti-harassment provisions failed.

The state argued that the First Amendment wasn’t implicated because any effect on speech was merely incidental to the regulation of professional conduct. This argument relied on Justice White’s argument, in concurrence, that when people are exercising judgment with respect to a particular client, they’re “engaging in the practice of a profession” and the speech is “incidental to the conduct of the profession.” See Lowe v. S.E.C., 472 U.S. 181, 232 (1985) (White, J., concurring in the judgment). Justice White proposed that regulations of so-called professional speech receive only rational basis review. See Thornburgh v. Am. College of Obstetricians & Gynecologists, 476 U.S. 747, 802 (1986) (White, J., dissenting). By contrast, laws purporting to regulate a professional who does not have a “personal nexus” to a particular client and who is merely speaking generally would receive heightened scrutiny.

Applying Justice White’s framework to licensing requirements is different from applying a law restricting what license holders can say on a given topic in practicing their profession. The Ninth Circuit has also adopted Justice White’s approach in upholding a California law prohibiting mental health practitioners from providing sexual orientation change efforts therapy to children under the age of 18. See Pickup v. Brown, 740 F.3d 1208, 1225–29 (9th Cir. 2013) (as amended on rehearing). However, the Ninth Circuit held that the law didn’t restrict what the practitioner could say or recommend to a patient or client, and thus the law “regulate[d] conduct” even though it covered the verbal aspects of SOCE therapy. The court here expressed “serious doubts” about whether Pickup was correctly decided, because it’s dubious to ever characterize speech as conduct (really? What about “I promise to give you this car if you give me your money”?). But anyway, Pickup was distinguishable on its facts, and recognized that “doctor-patient communications about medical treatment receive substantial First Amendment protection.”

By contrast, Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), struck down a federal policy which threatened doctors with revocation of their DEA prescription authority if they recommended the medicinal use of marijuana to their patients. This was content- and viewpoint-based regulation in violation of the First Amendment; it lacked the requisite “narrow specificity.”

The Supreme Court has never adopted or applied Justice White’s rational basis standard to regulations which limit the speech of professionals to clients based on content, but instead has sometimes applied heightened scrutiny to regulations restricting the speech of professionals. See, e.g., Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 542–48 (2001) (law regulating attorneys violated the First Amendment because it limited “constitutionally protected expression” and “alter[ed] the traditional role of the attorneys”); N.A.A.C.P. v. Button, 371 U.S. 415, 438–44 (1963) (law regulating organizations’ provision of legal services violated the First Amendment because the state had not advanced any substantial regulatory interest to justify the prohibition). As Button said, “a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights.” Given that, the plurality opinion of three Justices in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 884 (1992), upholding a risk-notification requirement for doctors performing abortions, didn’t support the use of rational basis review here:

If rationality were the standard, the government could—based on its disagreement with the message being conveyed—easily tell architects that they cannot propose buildings in the style of I.M. Pei, or general contractors that they cannot suggest the use of cheaper foreign steel in construction projects, or accountants that they cannot discuss legal tax avoidance techniques, and so on and so on.

Under heightened scrutiny under Sorrell, government “must show at least that the [provisions] directly advance[ ] a substantial governmental interest and that the measure[s] [are] drawn to achieve that interest. There must be a ‘fit between the legislature’s ends and the means chosen to accomplish those ends.’” “[u]nlike rational basis review, th[is] . . . standard does not permit us to supplant the precise interests put forward by the State with other suppositions.” The Supreme Court has noted that “[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 Missouri Gov’t PAC, 528 U.S. 377, 391 (2000). Six anecdotes and nothing more was insufficient, in a state with more than 18 million people, to show that the state’s concerns were “real, [and] not merely conjectural,” and that FOPA provisions “will in fact alleviate these harms in a direct and material way.”

The state’s interest in protecting Floridians’ Second Amendment rights was a substantial government interest, but: (1) The legislature had no evidence that doctors had infringed those rights, because as private actors they can’t do so. (2) Florida makes it a misdemeanor to fail to secure firearms that are then obtained or possessed by minors without supervision, which means that questioning patients is consistent with state policy and not inconsistent with the Second Amendment. (3) The record-keeping, inquiry, and anti-harassment provisions didn’t advance any anti-interference with gun goals in a permissible way, since some patients don’t object to questions and advice about firearms and firearm safety, “and some even express gratitude for their doctors’ discussion of the topic.” In “the fields of medicine and public health . . . information can save lives.” Sorrell. Doctors, therefore, “must be able to speak frankly and openly to patients.”

The state’s interest in protecting patient privacy was also substantial. But patients can simply refuse to answer any questions about firearms; the state didn’t explain why that protection wasn’t enough. The chilling effect of disclosure and record-keeping was already limited by Florida law’s existing protection for medical records, and there was no evidence of improper disclosures about firearms. While the appellate panel said that there was a danger of hacking, theft, or some other intrusion, the legislature didn’t rely on this rationale and the state couldn’t rely on it now.

The state’s interest in ensuring access to health care without discrimination or harassment was also substantial. (Talk about ideological drift. I guess it all depends on what you want to be free from discrimination about.) The non-anti-discrimination provisions, though, weren’t well tailored for that. If the issue were threats to end the physician-patient relationship or to refuse treatment if questions about firearm ownership were not answered, then the legislature should’ve barred doctors from ending professional relationships with patients who decline to answer questions about firearm ownership, as a less speech-restrictive alternative. But FOPA does the opposite: medical professions can end a relationship over a refusal to answer.

The state also argued that there was a significant power imbalance between doctors and their patients, who are in a vulnerable position. But, for adults, “the Supreme Court has never used a vulnerable listener/captive audience rationale to uphold speaker-focused and content-based restrictions on speech.” (Citing Snyder v. Phelps, 562 U.S. 443 (2011).) And patients have the right to refuse to answer questions. “There is nothing in the record suggesting that patients who are bothered or offended by such questions are psychologically unable to choose another medical provider, just as they are permitted to do if their doctor asks too many questions about private matters like sexual activity, alcohol consumption, or drug use.” The fact that a few felt coerced and harassed can’t sustain broad content-based regulations of this sort; listening to speech you don’t like is the price of freedom.

Finally, the state argued that it needed to regulate the medical profession in order to protect the public. This is obviously true in the abstract. But the state “must do more than simply ‘posit the existence of the disease sought to be cured.’” Given that “injuries are the leading cause of death and morbidity among children older than one year, adolescents, and young adults,” the AMA and the American Academy of Pediatrics both recommend that doctors and pediatricians ask patients about firearm ownership, and educate them about the related dangers. “There is no claim, much less any evidence, that routine questions to patients about the ownership of firearms are medically inappropriate, ethically problematic, or practically ineffective.” Nor was there any evidence that the result was “bad, unsound, or dangerous medical advice.” Two of the six anecdotes on which the legislature relied were false claims about Medicaid coverage—but the obvious solution to that would be to ban false claims. (Citing commercial speech doctrine.)

The anti-discrimination provision was a little different, since it banned discrimination “against a patient based solely” on his or her ownership and possession of a firearm. On its face, that wasn’t speech-based. The court upheld the anti-discrimination provision “by construing it to apply to non-expressive conduct such as failing to return messages, charging more for the same services, declining reasonable appointment times, not providing test results on a timely basis, or delaying treatment because a patient (or a parent of a patient) owns firearms.” So limited, there was no First Amendment problem.

Judge Marcus concurred, writing separately to challenge the vagueness of the anti-harassment provision, given its prohibition on “unnecessarily harassing” a patient. “Reasonable doctors are … left guessing as to when their ‘necessary’ harassment crosses the line and becomes ‘unnecessary’ harassment -- and wrong guesses will yield severe consequences.” In general, harassment has an understandable meaning, and anti-harassment laws can be further understood through context and formal definitions. But “the State takes the plain word and renders it incomprehensible by appending a wholly nebulous adverb,” which was particularly difficult because “we expect doctors to doggedly exhort unhealthy patients to exercise more, eat less, or stop smoking, even when such admonishments may ‘annoy persistently.’”

The state tried to limit the scope of the provision by saying that a doctor operating in good faith would be fine, but that was inconsistent with the plain text of the statute, which provided a good faith defense for the inquiry provision, but not for the harassment provision. “[W]e cannot find clarity in a wholly ambiguous statute simply by relying on the benevolence or good faith of those enforcing it.” Plus, “a disgruntled patient is likely to disagree with his doctor about precisely how much harassment is truly necessary,” and a complaint can have severe consequences for doctors’ careers even if it’s not upheld. “Doctors deserve more notice before they are subjected to these consequences.”

Judge Wilson concurred (joined in part by Judge Martin), arguing that strict scrutiny and not intermediate scrutiny should apply. This was more than content discrimination—it targeted a particular viewpoint. “Content-based restrictions on speech are permitted only when they fall within a few historic and traditional categories, such as obscenity or defamation,” and doctors’ truthful speech wasn’t such a category, which would have to be based on “a long (if heretofore unrecognized) tradition of proscription.” [As to “proscription,” this is surely true—but a long history of heavy regulation does exist.]

The Supreme Court hasn’t squarely addressed the appropriate level of protection for professional speech; this regulation was different from cases in which the state had a valid interest in regulating a specialized profession. “Proscribing access to a profession is entirely different than prohibiting the speech of an entire group of professionals.” Other regulations don’t prohibit truthful speech within the scope of the profession. [But! All the work here is done by “truthful.” Who decides what’s truthful or misleading? For ordinary malpractice, a jury does under ordinary, nonconstitutionalized tort standards. I would say there’s a strong argument that a tradition of regulation exists to validate this treatment, even under Stevens.]

The concurrence also expressed doubts about the anti-discrimination provision, because “the anecdotes of discrimination that motivated the Act all stemmed from speech, and “it strains credulity to imagine scenarios in which this Act will be used to punish only conduct, and not speech…. Doctors may be hesitant to inquire about firearm ownership, as inquiries are strong evidence of a discriminatory motive.” Given the safety interests at issue, “we cannot afford to silence these voices.” With the harassment provision gone, the state might now use the discrimination provision to punish “harassing” conduct. However, anti-discrimination provisions against discriminatory conduct don’t generally violate the First Amendment, so Judge Wilson ended up concurring.

Judge Pryor concurred (joined by Judge Hull) to remind everyone that he loves the Second Amendment. That fundamental right could provide the substantial government interest in protecting Floridians from discrimination on the basis of their exercise of their right to bear arms. But, Judge Pryor reasoned, an anti-gun legislature could have enacted laws banning doctors from promoting gun ownership as a health and safety measure. [Of course, query whether any hypothetical universe is plausible in which doctors trained in medicine and statistics would do so.] Anyway, governments have in the past politicized the practice of medicine. [See also: abortion regulation, though I don’t think Judge Pryor minds that.] “If anything, the doctor- patient relationship provides more justification for free speech, not less.”

Judge Pryor’s parade of horribles is also quite interesting, insofar as it suggests that he thinks that antidiscrimination laws might be more broadly constitutionally vulnerable, especially to the extent they cover proselytization by a doctor:

Without the protection of free speech, … [t]he state could stop a surgeon from praying with his patient before surgery or punish a Christian doctor for asking patients if they have accepted Jesus Christ as their Lord and Savior or punish an atheist for telling his patient that religious belief is delusional.… [T]he First Amendment ensures that doctors cannot be threatened with state punishment for speech even if it goes beyond diagnosis and treatment.

An activist state might punish a doctor for “advising” a patient about sex-reassignment surgery, drugs, alcohol, or tobacco; advocating for universal health care, against Obamacare, against abortion [he doesn’t suggest a doctor couldn’t be punished for advocating for abortion], for vaccination [could a doctor be punished for advocating against vaccination? Note that this is a variant of “is malpractice as a tort vulnerable to First Amendment scrutiny?”]; for abstinence or safe sex, for organ donation or surrogacy or terminal care; or “explaining the risks or benefits” of a vegan diet or of playing football.

Other constitutional rights don’t need “protection” from private speech, only from government infringement. “That the government may not establish a religion, or ban handguns, does not suggest that private individuals may not start a church or give away their guns.” If Florida can do this, other legislatures could identify different rights—specifically, equality rights—as justifications for suppressing students’ unpopular views about race, religion, or sex.

Judge Tjoflat dissented, decrying the flattening of levels of scrutiny apparently encouraged by Reed. He fully agreed that the inquiry, record-keeping, and anti- harassment provisions were content-based regulations of speech specifically targeting medical professionals, and that rational basis review didn’t apply.

Special scrutiny for content-based regulations is based on the fear “that the Government may effectively drive certain ideas or viewpoints from the marketplace” altogether, or that its acts may be based on “hostility—or favoritism—towards the underlying message expressed.” (By contrast, content-neutral regulations get intermediate scrutiny because they rarely raise such core First Amendment concerns.) However, the language of the “free market” for ideas has “effectively constitutionalized the market-based ideology underlying neoliberalism,” which “effectively obliterates the classic distinction between heavily-protected political speech and other, lesser forms of expressive activity, like consumer spending,” and Judge Tjoflat expressed his discomfort with “constitutionalizing any particular ideological framework.”

Before Reed, the test for content neutrality was “‘whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration.’” A regulation would be content neutral as long as it “serves purposes unrelated to the content of expression” even if the regulation imposed incidental effects on particular speakers or messages. Reed seemed to work a sea change, expanding the universe of “previously permissible regulations now presumptively invalid,” because the government’s indifference to the message or content-neutral justification no longer mattered.

Judge Tjoflat thought that “the First Amendment does not require such rigorous interventionism,” and that existing First Amendment doctrine could cabin Reed in ways better than watering down strict scrutiny—the other temptation, as Justice Breyer likewise cautioned. Instead of formalism, Justice Breyer’s balancing approach corresponded with Judge Tjoflat’s understanding: we should focus on the values underlying the reasons for the categories. Thus, we ask “whether the regulation at issue works harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives…. The more directly a challenged regulation impinged on speech without adequate reasons for doing so, the higher the level of constitutional scrutiny applied to the law.”

Thus, content-basis in the Reed sense shouldn’t automatically trigger strict scrutiny. It merely indicates “a heightened possibility that the government seeks to impermissibly favor a particular viewpoint, or otherwise lacks adequate justification for legislative action.” The alternative is widespread, unnecessary invalidation of reasonable laws. Under this approach, Judge Tjoflat would apply only intermediate scrutiny, because Florida was only regulating “a very specific part of the relationship between medical professional and patient,” rather than speech to the public or speech that the doctor hadn’t determined was relevant to the patient’s medical care, safety, or the safety of others. The connection to medical care meant that the regulation didn’t interfere with core First Amendment values.

The idea of “professionals” “presupposes the existence of a code of behavior and some element of state control over that code in order to ‘safeguard[] the interests of the public who partake in . . . professional services.’” Moreover, medical professionals are fiduciaries who typically possess “superior knowledge, expertise, experience, and stature in relation to the client that inherently places the professional in a position of superior leverage and influence.” State regulation is thus necessary “to protect patients from the significant potential abuse that exists both within a specific fiduciary relationship and more broadly within the medical profession itself.” Thus, the state can regulate the professional’s speech “on matters relevant to the provision of appropriate medical care”; this regulation deserved intermediate scrutiny given the longstanding tradition of government regulation in this area. (Citing Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) and Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (joint opinion)).

Under that standard, Judge Tjoflat would have sustained the law. “[T]he Act merely codifies the commonsense conclusion that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care … and that good medical care never requires the discrimination [against] or harassment of firearm owners.” All the law required was “an individualized, good faith judgment of the necessity of speech related to firearm ownership to provide competent medical care to a patient.”