In Wollschlaeger v. Florida, No. 12-14009 (Feb. 16, 2017), the U.S. Court of Appeals for the Eleventh Circuit invalidated provisions of the Florida Firearms Owners’ Privacy Act that prohibited physicians from (i) asking patients if they (or their family members) own firearms or ammunition, (ii) documenting firearm ownership in patient medical records, and (iii) harassing patients about firearm ownership during examinations. The appellate court did not invalidate the Act’s antidiscrimination provision that prohibits physicians from discriminating against patients based solely on firearm ownership. Physicians who violated the Act were subject to disciplinary action by the Florida Board of Medicine, which promulgated regulations in 2014 and 2016 setting forth mandatory penalties for violations.

The Act was passed in 2011 by the Florida legislature in response to anecdotal reports of physicians inquiring or commenting to patients about firearm ownership. One anecdote reported that a pediatrician sought to terminate a physician-patient relationship because the patient’s mother refused to disclose information concerning firearm ownership in the family home. After its enactment, physicians and medical organizations immediately challenged the Act as violating the First Amendment’s free speech clause and the Fourteenth Amendment’s equal protection clause of the U.S. Constitution.

In reaching its decision, the appellate court noted that the American Medical Association encourages members to discuss the presence of household firearms with patients to prevent and reduce firearm-related deaths and injuries, particularly to children. The court determined that the provisions in question contravene the First Amendment because they were speaker-focused and imposed content-based restrictions, as they only applied to speech of doctors and medical professionals in connection with the topic of firearm ownership.

In support of the Act, Florida argued that the Act regulates professional conduct, the Act is rationally related to regulatory oversight, and any effect on physician speech is incidental to Florida’s interest in physician licensure. The court rejected Florida’s arguments, explaining “we do not think it is appropriate to subject content-based restrictions on speech by those engaged in a certain profession to mere rational basis review” and warning that “if rationality were the standard, the government could – based on its disagreement with the message being conveyed – easily tell … accountants that they cannot discuss legal tax avoidance techniques, and so on and so on.”

The appellate court also reasoned that patients are able to choose another medical provider if their physician asks too many intrusive questions, and that Florida did not prove that physicians took away patients’ firearms or otherwise infringed on patients’ rights to own firearms. The court rejected Florida’s argument that the Act’s challenged provisions were necessary to support its interest in regulating the medical profession, instead focusing on the applicable standard of care that “encourages doctors to ask questions about firearms (and other potential safety hazards).”

Although the appellate court struck down as unconstitutional the inquiry, recordkeeping, and anti-harassment provisions, the court upheld the Act’s prohibition against discrimination against patients based solely on firearm ownership. The court reasoned that the antidiscrimination provision had no First Amendment concerns when applied solely to expressive conduct such as delaying treatment and test results, or failing to respond to patient phone messages. The court finally noted that the plaintiffs had not challenged whether the Act’s antidiscrimination provision is unconstitutionally vague, which could portend a challenge to this provision in the future.

This post was co-authored by Valeriya Svystun, legal intern at Robinson+Cole. Valeriya is not yet admitted to practice law.