Thursday, February 16, 2017

11th Circuit Rules Against Florida In "Docs V. Glocks" Case

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.


  1. So if I read this right, they are saying that it violates 'freedom of speech' to prohibit doctors from asking a child if an adult has a gun in the home? And that it's perfectly fine for doctors to refuse service based on your refusal to answer the question?

    So does this mean I can start asking employees if they are black, asian, white, Muslim, Jewish, Catholic, Mormon, gay, lesbian, or Democrat and refuse to hire them if they won't answer? Or is my 'private persuasion' not allowed when the court randomly decides it's not allowed?

    1. Yes to freedom of speech in your first sentence. They said the anti-discrimination provisions would stand. This is what would cover refusal of service based on refusal to answer the question.

  2. Private persuasion is all well and good.

    But what if you get your doctor through Obamacare. What if the doctor, in response to your refusal to answer gun questions, refuses to treat you, and, because it's Obamacare, you can't get another doc?

    Isn't that state action instead of private persuasion?