Do you have time for a question?
It's just that I heard that the Eleventh Circuit held that it's unconstitutional for doctors to mention guns.
I know what you're doing.
You're trying to bait me into doing a lawsplainer by mangling the holding of a case so I can't resist correcting you. I'm onto you. I'm not that easily manipulated.
You're not? Really?
Set me straight. What did the Eleventh Circuit do?
On Monday, in a case called Wollschlaeger v. Florida, the United States Court of Appeals for the Eleventh Circuit issued its most recent change of mind about whether Florida could prohibit doctors from pestering their patients about guns.
Why are you throwing shade at the Eleventh Circuit?
Because this opinion is the Eleventh Circuit sua sponte — that means of its own accord, not based on anyone's motion — vacated its earlier opinion, which it had issued after granting rehearing on its original opinion.
Sounds a little waffly. So what's at issue in the lawsuit?
Florida legislators got wind that some doctors like to ask patients if they own guns and whether they are securely stored and so on. The legislators thought that was part of a law on guns, so they passed a law prohibiting doctors from certain types of questions. I wrote about it back when the trial court struck the law down.
But it's usually conservatives who are very pro-gun-rights. Isn't it kind of un-conservative to increase regulation of the doctor-patient relationship?
Yes. Yes it is. But for some conservatives guns are the big asterisk next to conservative principles.
So how did this law limit doctors?
In four key ways. Here is how the Eleventh Circuit summarized it:
The Act provides, in relevant part, that licensed healthcare practitioners and facilities (1) “may not intentionally enter” information concerning a patient’s ownership of firearms into the patient’s medical record that the practitioner knows is “not relevant to the patient’s medical care or safety, or the safety of others,” id. § 790.338(1); (2) “shall respect a patient’s right to privacy and should refrain” from inquiring as to whether a patient or their family owns firearms, unless the practitioner or facility believes in good faith that the “information is relevant to the patient’s medical care or safety, or the safety of others,” id. § 790.338(2); (3) “may not discriminate” against a patient on the basis of firearm ownership, id. § 790.338(5); and (4) “should refrain from unnecessarily harassing a patient about firearm ownership,” id. § 790.338(6).3
So how did the Eleventh Circuit handle the conflict between doctors' right to speak and the patient rights created by this statute?
In two key ways. First, the court rejected the doctors' argument that the statute is too vague.
Under the "void for vagueness" doctrine, statutes must be sufficiently clear that an ordinary person can tell what conduct is prohibited, especially in the context of laws limiting free expression. This statute has a lot of potentially fuzzy terms like "good faith" and "harassing."
Here the court found that the intent requirements of the statute make it sufficiently clear. In other words, the statute doesn't just prohibit recording irrelevant information about patient gun ownership; it only prohibits it when the doctor knows the information is irrelevant. Even if the scope of relevance of gun ownership is unclear and arguable, the statute permits a defense when a doctor is inquiring about guns in good faith. Finally, the court found that the term "unnecessary harassing" is clear from the context of the entire statute, which prohibits irrelevant and bad-faith inquiries. "When read in the context of the Act as a whole, the harassment provision communicates that physicians should not disparage firearm-owning patients, and should not persist in attempting to speak to patients about firearm ownership when the subject is not relevant to medical care or safety."
Okay. So the court says it's not vague. But what about doctors' right to free speech?
Well, first the court has to decide whether it regulates speech at all.
What do you mean? Of course it regulates speech. It's right there in the language.
Sure it is. But it's a doctor's speech to patients — it's professional speech. Courts treat laws regulating professional conduct differently than they treat the speech of a citizen standing on the street corner. That's why, for instance, states can require doctors to be licensed without violating their free speech rights. This distinction — speech as an individual vs. conduct as a regulated professional — is the one that made the difference in the challenges to the California law barring so-called "conversion therapy," as I wrote about. This was an issue in Casey v. Planned Parenthood, where the Supreme Court said that a state could make doctors provide specific information to women seeking abortions.
Restrictions on professional speech get analyzed on a sliding scale — the closer it is to core conduct regulation with only incidental impact on speech, the less scrutiny the law gets, and the closer it gets to the professional's personal expression, the more scrutiny it gets. As the court says here:
Our task, then, is to determine whether any provision of the Act crosses the boundary between a law regulating professional conduct with an incidental effect on speech and a law regulating protected speech, which “must survive the level of scrutiny demanded by the First Amendment.” Lowe, 472 U.S. at 230, 105 S. Ct. at 2583 (White, J., concurring).
Here, the court said that the prohibition on discriminating against gun-owners is a conduct regulation with only incidental impact on speech, so doesn't implicate the First Amendment. That anti-discrimination laws are about conduct and not speech is controversial to some people but not to most modern courts. The rest of the provisions implicate speech, the court said, and so are subject to First Amendment scrutiny.
What's scrutiny, anyway? Isn't that just looking?
It's a term of art in constitutional law. "Scrutiny" refers to the level of justification that the government must supply to support a law that implicates constitutional rights. It goes all the way from "rational basis" (meaning that the state just has to show that the law isn't completely irrational) to strict scrutiny (meaning the state has to show that the law is supported by a compelling interest, is narrowly tailored to achieve that interest, and is the least intrusive method of achieving that interest). Laws almost always pass rational basis scrutiny and almost always fail strict scrutiny.
What scrutiny did the court apply here? What level is supposed to apply to professional speech?
The court decided not to decide — it said that it didn't have to rule on what level of scrutiny applies because this law survives even a strict scrutiny analysis.
Wait a minute. I thought you said laws almost always fail strict scrutiny examinations.
The court accepted Florida's argument that it had a compelling interest in protecting the Second Amendment rights of its citizens. Relying on stories told to Florida legislators about intrusive doctors, the court found that Florida had a compelling interest in preventing citizens from being chilled and deterred from either maintaining their rights or seeking healthcare.
And how did the court find that the law is narrowly tailored to that end? They just did. This is the core paragraph:
The Plaintiffs first argue that the Act cannot be narrowly tailored to the protection of Second Amendment rights because the speech in question does not interfere with such rights. This argument could not be farther off base. It is of course an interference with Second Amendment rights for a trusted physician to tell his patient—for no medically relevant reason whatsoever—that it is unsafe to own a gun. Though such actions, on their own, may not stop the patient from owning a gun, complete prohibition is hardly required to infringe on constitutionally guaranteed rights. Such speech chills the patient’s exercise of his rights and that is sufficient.
This is begging the question, in my opinion. It treats advocacy against a right as interference with a right, a proposition that is far from self-evident.
The court also found that the law was narrowly tailored even though Florida has another law explicitly allowing patients to refuse to answer doctor questions about guns. "That argument is also unpersuasive because of the significant power imbalance between patient and doctor." The court also analogized the situation to the Supreme Court's captive-audience cases, where the subject's privacy is invaded by the speaker in a way the subject cannot avoid, and referenced cases allowing buffer zones around health clinics.
This is some of the most forgiving strict scrutiny I've ever seen.
Why would the Eleventh Circuit go easy on Florida?
Guns are a controversial issue. They often distort application of other rights.
Is the court's conclusion plausible, colorable? Sure. But it's noticeably forgiving to the state, and eagerly accepts some propositions that you wouldn't expect a usually conservative court to agree with: that the doctor-patient relationship is so power-unblanaced that it permits broad regulation, and that consumers are compelled to hear the speech of professionals they select. Similarly, the court's practical concerns are ones you'd expect to hear in a "liberal" decision, not a "conservative" one.
The case demonstrates how you can manipulate scrutiny by altering the level of focus. Is the question whether Florida has a compelling interest in protecting its citizens' Second Amendment rights? (It does.) Or is the question whether Florida has a compelling interest in protecting the Second Amendment rights of its citizens from the individual decisions of other citizens in voluntary relationships? (That's much more of a stretch.)
There's another controversial issue lurking about here: abortion. Many of the physician-compelled-speech cases arise in the context of doctors challenging state laws requiring them to, for instance, perform and narrate ultrasounds to their patients seeking abortions. A decision giving the state wide latitude to regulate doctor-patient speech is a precedent that will support laws restricting abortion. Yet, ironically, the decision employs some of the same arguments that pro-choice litigators tend to make: the argument "this is necessary because rural gun owners might have to travel a long way to find another doctor" is remarkably similar in tone and socioeconomic concern with "rural women may have to travel a long way to find a different abortion provider."
Do you agree with the case?
No. I think the anti-discrimination provision is legal under modern law, though it's legitimate to ask why the legislature wants to protect some rights from physician judgment but not others. But I think the court has misapplied strict scrutiny, has accepted the state's claim of compelling interest too lightly (and in a nanny-state way), and has not taken narrow tailoring seriously.
What happens now?
This case might or might not go further. But there are a number of compelled-physician-speech cases out there in the abortion context that may eventually find their way to the Supreme Court and clarify this area.
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