Ken . . . .
Come on Ken. You know what you need to do.
After yesterday's debacle you have to redeem yourself.
It is too late for me, son. Twitter will show you the true nature of the First Amendment. It is your master now.
Snap out of it and get to work.
So: yesterday the United States Court of Appeals for the Eleventh Circuit issued its latest opinion in the convoluted saga of a Florida law that prohibits doctors from quizzing their patients about gun ownership. Yesterday I tried to read it and bsod'd, again (as I have before) demonstrating the folly of trying to comment quickly on complicated things. Let's see if we can do it better today.
What's the law about, anyway? Why did Florida pass it?
The law's called the Florida Firearms Owners' Privacy Act, or FOPA. The American Medical Association, the American Academy of Pediatrics, and the American Academy of Family Physicians all recommend that doctors ask patients about guns in the home as part of an effort to "childproof" homes and encourage safety. Whether you think that's appropriate or politically intrusive might depend on your view of guns. Florida legislators came forward with some stories of patients getting unwelcome questions or comments about guns from doctors, and one woman claimed that the doctor fired her as a patient for refusing to disclose information about guns. FOPA was the response.
FOPA has many parts — it's a typical dense, overwritten bill — but the litigation has focused on four elements. One provision — the "inquiry provision" — prohibits doctors from from asking about guns in the home unless the doctor has a good-faith belief that it's relevant to the patient's medical care or safety. Another — the "record-keeping provision" — prohibits doctors from keeping records of what patients tell doctors about their guns unless it's relevant. The third — the "anti-discrimination provision" — prohibits doctors from discriminating against a patient based solely on gun ownership. The fourth — the "anti-harassment provision" — prohibits doctors from "unnecessarily harassing a patient about firearm ownership during an examination." FOPA says that violations may be cause for disciplinary action by the Florida Board of Medicine, and may carry fines.
Doctors didn't like that?
Some of them didn't. A bunch of doctors and medical organizations filed suit to enjoin the law.
And that's how we got this new opinion?
After six years of hard road. The district court — the federal trial judge — issued a permanent injunction finding that all four of those provisions violated doctors First Amendment rights. Florida appealed to the Eleventh Circuit, and a three-judge panel issued an opinion overturning the trial court, then revised it, then revised it again, each time using a different legal approach. I wrote about it midway through that process. The Eleventh Circuit agreed to hear the case en banc — in most places that means by all of the judges of the Circuit1 — and finally issued this opinion.
In this opinion, the Eleventh Circuit decided that the inquiry provision, the record-keeping provision, and the anti-harassment provision all violated the First Amendment.
Why all the back-and-forth?
What's at stake is more than FOPA. What's at stake is a methodology for evaluating state regulation of what professionals say to clients. And the methodology usually dictates the outcome.
In First Amendment analysis, the way you categorize speech — the box you put it into — quite often determines whether regulation of that speech will be constitutional or unconstitutional. This is the perfect example. The three-judge panel put doctor speech into the box of "professional conduct," which makes it very likely it will survive. The en banc court rejected that approach, saying that the inquiry provision, the record-keeping provision, and the anti-harassment are content based restrictions on speech triggering a higher level of scrutiny.
Remind me what scrutiny is.
When a law restricts a protected activity, or discriminates among groups, a court will apply some test to see if the law survives. The level of scrutiny applied depends on the nature of the right and the nature of the groups being sorted out. The more important the right, or the more historically invidious the discrimination (for instance, based on race), the tougher standard the law has to meet to survive. The lowest level of scrutiny is the rational basis test — there the court just asks if the law is rationally related to a legitimate government aim. The highest level of scrutiny, which very few laws can survive, is strict scrutiny — it asks if the law serves a compelling government interest, is narrowly tailored to advance that interest, and is the least restrictive means of advancing that interest.
So, practically speaking, deciding what level of scrutiny applies usually (but not always) determines the outcome of the case.
So what level of scrutiny did the Eleventh Circuit wind up applying to FOPA?
Well, the Eleventh Circuit sort of punted. The lead majority decision said that the court didn't have to decide whether strict scrutiny applies because FOPA doesn't even survive a lower level of scrutiny called "heightened scrutiny." That's judicial restraint — not resolving constitutional questions that are not necessary to decide the particular case before them, even if resolving the question would be helpful precedent.
The Court did flatly reject the notion that a state can regulate what doctors say and write just by slapping the label "professional conduct" on it. "Saying that restrictions on writing and speaking are merely incidental to speech is like saying that limitations on walking and running are merely incidental to ambulation," the Court said in its pull-quote. In doing so, the Eleventh Circuit threw some shade at the Ninth Circuit's use of the "professional conduct" framework in the "conversion therapy" case, suggesting it was wrongly decided.
Then — without deciding it was the right standard — the Court applied the heightened scrutiny standard, which requires it to determine if the law "directly advances a substantial government interest" and is "drawn to achieve that interest," and that there is a "fit because the legislature's ends and means chosen to accomplish those ends."
That sounds like . . . that sounds like just second-guessing the legislature.
That's the problem with the middle types of scrutiny — they're incredibly touchy-feely.
Here the Court said that the six anecdotes that motivated legislators to pass FOPA didn't show a substantial government interest because they didn't show that anyone's right to own a gun was at risk. Moreover, it found that the three stricken provisions of FOPA didn't advance the purported interest anyway. "The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right." The Court said that patients could refuse to answer questions about guns, and that Florida could have made it illegal to terminate a patient for refusing to answer, but didn't.
In short, the Eleventh Circuit lead majority opinion found that FOPA's inquiry, anti-harassment, and record-keeping restrictions were content-based restrictions on speech and didn't survive even heightened scrutiny.
In addition, a majority of Eleventh Circuit judges joined a second majority opinion — an unusual and confusing circumstance — that decided that the anti-harassment provision is also unconstitutional because it is impossibly vague, so that doctors don't know what conduct is actually prohibited.
So what's the end result of all this back-and-forth?
The end result is that the heart of FOPA falls, but it's still unclear exactly how courts should evaluate state laws regulating what professionals can say to customers and clients.
Why is that so complicated?
First, the whole notion of "professional speech" being a separate category is based on a series of Supreme Court decisions that are not a model of clarity and have not been well-developed.
Second, "heightened" or "intermediate" scrutiny is inherently ambiguous, subjective, and easy to manipulate to achieve a desired result.
Third, the Supreme Court recently upended (or clarified, if you prefer) some First Amendment precedent in a case called Reed v. Town of Gilbert. We've known for a long time that content-based restrictions on speech trigger strict scrutiny and almost always mean that a law is unconstitutional. Reed made everyone reconsider what "content-based" means. Under one school of thought, it means a law that disfavors a particular viewpoint. But Reed's read is much more expansive. In Reed, the Supreme Court found that a town lawn restricting political signs was content-based (and thus triggered strict scrutiny, and thus fell) even though it restricted all signs no matter the political message on them. That means that restrictions on speech that are based on the speech's content trigger strict scrutiny even if they don't target the speech's viewpoint. Everyone — lawyers, professors, Circuit judges — are still figuring out what exactly that means and how to apply it.
Judge Tjoflat — one of the judges on the original panel, overturned by this decision — writes a good dissent at page 70 (!) of the ruling, explaining why the decision leaves ambiguity about the right standard to apply, and explaining how Reed has contributed to that ambiguity.
What happens now?
Florida could try to take another run at FOPA by making a more serious legislative record and narrowing it substantially.
And with luck — given the tension between different Circuits on the nature and extent of "professional speech" — the Supreme Court will clarify a case.
- In the Ninth Circuit it means 11 of the judges hear it. ▲
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017