Wollschlaeger v. Governor of Florida

^ 728 F.3d 1042 (9th Cir. 2013), amended on denial of reh’g, 740 F.3d 1208 (9th Cir. 2014).

^ See id. at 1048, 1056; Pickup, 740 F.3d at 1222, 1231.

^ No. 13-4429, 2014 WL 4455009 (3d Cir. Sept. 11, 2014).

^ Id. at *13, *24. A regulation survives intermediate scrutiny only if it “‘directly advances’ [a] ‘substantial’ government interest and is ‘not more extensive than is necessary to serve that interest.’” Id. at *13 (quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980)).

^ 760 F.3d 1195 (11th Cir. 2014).

^ See id. at 1225.

^ Pickup v. Brown, 134 S. Ct. 2871 (2014) (mem.).

^ Wollschlaeger, 760 F.3d at 1215.

^ Act of June 2, 2011, 2011 Fla. Laws 1176 (codified at Fla. Stat. §§ 381.026, 456.072, 790.338 (2014)).

^ Fla Stat. § 790.338(2); see id. § 456.072(nn). The Act also bans physicians from entering information on gun ownership into a patient’s medical records if they “know[]” such information is similarly irrelevant, id. § 790.338(1), from discriminating against patients on the basis of firearm ownership, id. § 790.338(5), and from “unnecessarily harassing” patients about the same, id. § 790.338(6).

^ One legislator suggested such questions constituted “a political . . . attack on the constitutional right to own a . . . firearm.” Wollschlaeger, 760 F.3d at 1232 (Wilson, J., dissenting) (omissions in original) (internal quotation marks omitted).

^ See id. at 1230, 1232–33. Some Floridians further claimed that their doctors had terminated service when they refused to answer such questions. Id. at 1204 n.2 (majority opinion). Though the Act bans discrimination, however, it “does not alter existing law regarding a physician’s authorization to choose his or her patients.” Fla. Stat. § 790.338(4).

^ Wollschlaeger, 760 F.3d at 1205.

^ See Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251, 1270 (S.D. Fla. 2012). After establishing that the plaintiffs had standing, id. at 1259, the district court found the Act an impermissible content-based regulation of physicians’ speech, id. at 1267, and found the relevancy requirement inscrutably vague, id. at 1268.

^ Wollschlaeger, 760 F.3d at 1207. The State also argued that the Act should survive First Amendment scrutiny as a regulation narrowly tailored to the government’s interests, which included “patient privacy, protecting Second Amendment rights, preventing barriers for firearm owners to receive medical care, and preventing harassment and discrimination of firearm-owning patients.” Id. The State also renewed its argument that the plaintiffs lacked standing. See id.

^ Judge Tjoflat was joined by Judge Coogler, sitting by designation from the United States District Court for the Northern District of Alabama.

^ See Wollschlaeger, 760 F.3d at 1208–13.

^ See id. at 1213–17.

^ See id. at 1214–15. The court found that, because a patient must rely on a doctor’s expertise and discretion, and because some rural areas might have only one doctor, a doctor occupies a special position from which unwanted questions might reasonably be perceived as coercive. See id.

^ Id. at 1215.

^ Id.

^ Id. at 1221. The court conceded that debate on firearms might indeed be a “matter of public concern” as that concept was understood in Snyder v. Phelps, 131 S. Ct. 1207 (2011). See Wollschlaeger, 760 F.3d at 1221.

^ Wollschlaeger, 760 F.3d at 1219.

^ Id. at 1218.

^ Id. at 1225. As precedent, the court cited Justice White’s concurrence in Lowe v. SEC, 472 U.S. 181 (1985), which suggested that the state could regulate speech incidental to the “practice of a profession” with no First Amendment barrier provided that a “personal nexus between professional and client” could be found, id. at 211 (White, J., concurring in the result) (upholding a restriction on what advice unlicensed investment advisers could offer clients). See Wollschlaeger, 760 F.3d at 1218. Such a nexus would be “at its most significant” within an examination room. Id. at 1219. Similarly, in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the Supreme Court found “no constitutional infirmity,” id. at 884 (opinion of O’Connor, Kennedy, and Souter, JJ.), when a requirement that doctors inform patients about the risks of abortion “implicated [physicians’ speech rights], but only as part of the practice of medicine,” id. (citation omitted). The majority then addressed the argument that Lowe merely permitted licensing regimes regulating entry into a profession to evade First Amendment scrutiny, and thus could not be used to justify direct regulations of professional speech. See Wollschlaeger, 760 F.3d at 1221–25. The court pointed to two cases, Casey and Pickup, in which other courts had upheld internal regulations of doctors’ speech. Though there was ambiguity as to whether Casey had exempted its regulation from First Amendment scrutiny altogether, Casey nevertheless demonstrated that a regulation of medical speech could reach beyond the licensing stage, see id. at 1222–23, and though Pickup’s exemption was limited, the treatment/speech line was hardly clear: an inquiry into firearm ownership could be the “opening salvo in an attempt to treat” medical issues related to firearms, id. at 1224.

^ Wollschlaeger, 760 F.3d at 1220 (quoting Casey, 505 U.S. at 884 (opinion of O’Connor, Kennedy, and Souter, JJ.)).

^ The majority did not expressly articulate the level of scrutiny it applied, but the dissent described it as “rational-basis review.” Id. at 1249 (Wilson, J., dissenting).

^ The majority also rejected the plaintiffs’ vagueness challenge. See id. at 1226–30 (majority opinion). The plaintiffs argued that it was unclear what sort of inquiry would be “relevant” to medical care, in particular because physicians had a general belief — which they considered to be held in good faith — that all such inquiries were relevant, yet such an interpretation would render the Act meaningless. See id. at 1227. Judge Tjoflat held that an ad hoc showing of relevance, “based on the specifics of [each] patient’s case,” id. at 1228, would be required: the doctors’ general belief that such inquiries were relevant would not suffice under the Act. See id. He further held that the Act was not vague in its treatment of relevance, as it clearly applied to “physicians who wish to pursue an agenda unrelated to medical care or safety.” Id. at 1229.

^ See id. at 1236 (Wilson, J., dissenting) (“The Act proscribes speech about one topic (firearms) by one group of speakers (medical professionals).”).

^ See id. at 1239 (“[T]he legislative history confirms that the purpose of the Act was to silence firearm-safety messages . . . perceived as ‘political attacks’ and as part of a ‘political agenda’ . . . .”).

^ See id. at 1231 (“The poor fit between what the Act actually does and the interests it purportedly serves belies Florida’s true purpose in passing [it]: silencing doctors’ disfavored message about firearm safety. This, the State cannot do.”).

^ The dissent argued that the Supreme Court had “consistently subject[ed] content-, speaker-, and viewpoint-based restrictions to at least intermediate . . . scrutiny,” id. at 1236, and had tolerated carve-outs in this fabric of protection only based on historical evidence of proscription — evidence lacking in the context of physicians’ speech, id. at 1236–37 (citing United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (plurality opinion)). Further, the majority’s suggestions notwithstanding, no case had ever previously permitted direct regulation of medical speech without First Amendment scrutiny. See id. at 1239–48. Lowe merely permitted the state to regulate speech “as a consequence of a professional licensing scheme,” id. at 1241, and only when the regulation was content neutral, see id. at 1239–41, and Casey stated that “First Amendment rights . . . [were] implicated” by the challenged regulation therein, id. at 1245 (omission in original) (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) (opinion of O’Connor, Kennedy, and Souter, JJ.)) (internal quotation marks omitted). Pickup, too, was inapposite: Pickup exempted from scrutiny only speech classifiable as treatment, and speech could not possibly be both irrelevant to medical care and itself medical treatment. See id. at 1247–48.

^ Id. at 1237. The majority, addressing the dissent’s fears, had noted emphatically that it was not creating a rule “whereby any law burdening speech — such as a law barring doctors from discussing the Affordable Care Act . . . will avoid First Amendment scrutiny so long as the law applies within the confines of a one-on-one professional relationship.” Id. at 1225 n.17 (majority opinion). The dissent, however, found nothing in the majority’s reasoning or rhetoric to support this disclaimer: “Under the Majority’s new exception,” “[s]tates are left free to eliminate all irrelevant speech from a doctor’s office, all relevant speech from a doctor’s office, or just that speech which conflicts with the State’s preferred viewpoints.” Id. at 1237 (Wilson, J., dissenting).

^ Id. at 1237 (Wilson, J., dissenting). The dissent did not decide which level of scrutiny would apply. See id. Instead, Judge Wilson acknowledged that a regulation of speech might be justified by many of the State’s claimed interests, see id. at 1231, but determined Florida had produced at best anecdotal evidence that doctors’ speech had contributed to any of these harms, see id. at 1256–58. Even intermediate scrutiny required more than a mere anecdotal showing. Id. at 1265. The dissent also addressed the plaintiffs’ vagueness challenge. See id. at 1267–70. The dissent suggested that the Act’s “good faith” language could be read, on its face, to permit doctors to make inquiries “as a matter of course,” yet the “legislative history” suggested it was precisely these inquiries the Act sought to ban, as the majority itself held. Id. at 1268; see also id. at 1228 (majority opinion). Thus, doctors would be left completely uncertain when a belief in medical relevance would be in “good faith,” resulting in a chilling effect that would prevent them from conveying “potentially lifesaving medical information.” Id. at 1231 (Wilson, J., dissenting).

^ Pickup v. Brown, 740 F.3d 1208, 1231 (9th Cir. 2014).

^ See id. at 1229–30.

^ The court emphasized that California did not “[p]revent mental health providers from expressing their views to patients, whether children or adults, about [SOCT], homosexuality, or any other topic,” id. at 1223, and that a regulation of such speech, unlike the present regulation, would receive intermediate scrutiny: “[W]ithin the confines of a professional relationship, First Amendment protection of a professional’s speech is somewhat diminished,” id. at 1228.

^ Id. at 1216 (O’Scannlain, J., dissenting from denial of rehearing en banc) (arguing that the court had handed the State “a new and powerful tool to silence expression based on a political or moral judgment about the content and purpose of the communications”).

^ See Jennifer Keighley, Physician Conduct? Or Speech? Or Both?, Balkinization (Oct. 15, 2014, 8:30 AM), http://balkin.blogspot.com/#3639781212226886059 [http://perma.cc/4XC-D3PP].

^ Wollschlaeger, 760 F.3d at 1219.

^ Id. at 1225.

^ The majority stressed that “physicians . . . remain largely free . . . to discuss firearm safety” with patients, id. at 1224, yet, insofar as this statement is true, it does not alter the decision’s breadth. Wollschlaeger’s rule would remove protection from this speech as surely as it removed protection from the speech actually banned. See id. at 1253 (Wilson, J., dissenting). A court’s deference to the legislature is not rendered less deferential because the government stays its hand.

^ See id. at 1225 n.17 (majority opinion).

^ See id. at 1215.

^ Id.; see also id. at 1255 (Wilson, J., dissenting) (“Perhaps the Majority’s holding only stands for the proposition that irrelevant speech can be purged from a profession under the guise of regulating conduct.”).

^ The dissent argued that this limiting principle was both legally and practically irrelevant to the opinion: on its face, the court’s rule extended to all speech in the examination room, id. at 1237 (Wilson, J., dissenting), and the majority’s deference to the government’s conception of relevance would permit the state to define any speech it wished to ban as medically “irrelevant,” id. at 1255. Indeed, doctors did not accept that their inquiries, even when asked as a matter of course, were irrelevant, see id.; they were arguably not claiming the personal right to speak freely on irrelevant topics so much as the right to communicate truthful, relevant speech without undue state intervention. See id. at 1244 (“[T]he Act . . . prohibits licensed medical professionals from . . . making inquiries . . . that they believe will improve the well-being of their patients.”); cf. Robert Post, A Doctor Has Limited First Amendment Rights, N.Y. Times: Room for Debate (Aug. 21, 2014, 2:03 PM), http://www.nytimes.com/roomfordebate/2014/08/20/when-do-doctors-have-the-right-to-speak/a-doctor-has-limited-first-amendment-rights [http://perma.cc/9LKZ-CH6S] (suggesting that “politicized” laws that “prevent[] doctors from communicating relevant knowledge” to their patients “frustrate[] an underlying purpose of the First Amendment”). These criticisms are important, and they illuminate many of the problems with the court’s rule, yet so too do they elide the problem this comment seeks to explicate: it is in accepting the court’s limiting principle — not rejecting it as illusory — that the unprecedented breadth of Wollschlaeger and its effects on expression become clear.

^ Wollschlaeger, 760 F.3d at 1228 (emphasis added).

^ The dissent is explicit on this point: the “agenda” the legislature sought to curb constituted “irritating politicking on the subject of firearm ownership.” Id. at 1248 (Wilson, J., dissenting); see also id. at 1231 (writing that the Act “proscribe[s] . . . political discussions between private citizens”).

^ Id. at 1221 (majority opinion).

^ See Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011) (“[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” (quoting Connick v. Myers, 461 U.S. 138, 145 (1983) (internal quotation marks omitted)) (internal quotation marks omitted)); Citizens United v. FEC, 130 S. Ct. 876, 898 (2010) (“[P]olitical speech must prevail against laws that would suppress it, whether by design or inadvertence.”).

^ This speech is protected for a reason. See Snyder, 131 S. Ct. at 1207 (“The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964))); Citizens United, 130 S. Ct. at 898 (finding such debate “a precondition to enlightened self-government and a necessary means to protect it”); cf. Wollschlaeger, 760 F.3d at 1231 (Wilson, J., dissenting) (noting that patients will “now . . . know less” about firearm safety).

^ See Pickup v. Brown, 740 F.3d 1208, 1231 (9th Cir. 2014) (“[T]alk therapy . . . stands on the same First Amendment footing as other forms of medical or mental health treatment.”).

^ Wollschlaeger, 760 F.3d at 1221 (“[T]he privacy of a physician’s examination room is not an appropriate forum for unrestricted debate . . . .”). To be fair, the majority suggested Pickup’s line between treatment and speech is an amorphous, and thus expansive one, ostensibly mitigating the critical weight of this comparison. See id. at 1224 (suggesting an inquiry about gun ownership could be the “opening salvo” in a course of treatment). Yet though this criticism of Pickup may be apt in theory, the majority’s use of it in Wollschlaeger to vastly expand Pickup’s zone of unprotected speech was highly problematic. See id. at 1248 n.16 (Wilson, J., dissenting). First, Pickup hardly went out of its way to carve out a category of protected speech related to treatment only to have it erased: to explode this dichotomy is to abandon the limiting principle that, to the Pickup court, likely made its approach reasonable in the first place. And second, however broadly one construes Pickup’s rule, speech “irrelevant to medical care” cannot plausibly be categorized as treatment.

^ Cf. Poe v. Ullman, 367 U.S. 497, 514 (1961) (Douglas, J., dissenting) (“Of course a physician can talk freely and fully with his patient without threat of retaliation by the State. The contrary thought . . . has the cast of regimentation about it, a cast at war with the philosophy and presuppositions of this free society.”).

^ The Court has held, albeit for purposes of interpreting the Religious Freedom Restoration Act, that the fact that a corporation seeks profit does not mean it cannot engage in religious exercise, and that for the State to impose that rigid subdivision on citizens by conditioning the benefits of incorporation on the renunciation of expressive rights is problematic, see Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2767 (2014) (“[The state] would put . . . merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits . . . of operating as corporations.”); id. at 2771, just as the Court has refused to remove First Amendment protection from commercial communication in part because of a rejection of the argument that such speech is categorically distinct from noncommercial expression, see Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2671 (2011) (“The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish.” (quoting Edenfield v. Fane, 507 U.S. 761, 767 (1993)) (internal quotation mark omitted)). Regardless of one’s opinion of the merits of these cases, cf. Hobby Lobby, 134 S. Ct. at 2787 (Ginsburg, J., dissenting) (speaking of the effect of the majority’s accommodation on “third parties”), and conceding that they addressed distinct legal questions from that in Wollschlaeger, they nevertheless reflect an aspirational vision of American citizenship in which a citizen need not, and the state may not, draw impermeable lines between professional, commercial, and expressive existence, dividing citizenship into non-overlapping zones and, on the basis of this regimentation, withdrawing all protection for expression the moment a citizen travels from one zone to the other.

^ Cf. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (“These matters, involving the most intimate and personal choices a person may make in a lifetime, . . . are central to the liberty protected by the Fourteenth Amendment.”).

^ Cf. Wollschlaeger, 760 F.3d at 1230 (Wilson, J., dissenting) (“Indeed, some doctors believed these conversations [about gun safety] to be so important that they were willing to lose the business of patients who refused to engage.”).

^ This comment does not suggest that the recognition of a doctor’s speech rights should in all cases prevent a state from restricting them. A state may have legitimate purposes sufficient to justify a restriction, pursuant to some form of First Amendment scrutiny. See Laurence H. Tribe, The First Amendment Should Protect Disfavored Viewpoints, N.Y. Times: Room for Debate (Aug. 20, 2014), http://www.nytimes.com/roomfordebate/2014/08/20/when-do-doctors-have-the-right-to-speak/the-first-amendment-should-protect-disfavored-viewpoints [http://perma.cc/N83V-ZNBG] (acknowledging states’ interests in “protect[ing] patient safety and privacy,” but rejecting the absence of scrutiny in Pickup and Wollschlaeger). The court’s error was not in recognizing these interests but in applying no scrutiny and thus clearing the way for the state to use these interests as smokescreens through which to effect “politically motivated discrimination against disfavored viewpoints.” Id.; see also Wollschlaeger, 760 F.3d at 1238 (Wilson, J., dissenting).

^ Cf. William M. Sage, Unpacking the Regulation of “Professional Speech,” Balkinization (Oct. 13, 2014, 10:30 AM), http://balkin.blogspot.com/2014/10/unpacking-regulation-of-professional.html [http://perma.cc/AR3A-NSWX] (“The fiduciary bond between a professional and a client often depends on verbal interaction to build intimacy and trust . . . .”). Indeed, even some scholars who would likely reject the withdrawal of scrutiny in Wollschlaeger might nevertheless accept the normative premise therein. See, e.g., Post, supra note 46 (rejecting a doctor’s “personal First Amendment rights to speak as she wishes” but suggesting she may act as a “constitutional spokeswoman” for her patients’ “right[] . . . to be informed”).

^ See Citizens United v. FEC, 130 S. Ct. 876, 898 (2010) (stating that the First Amendment is “[p]remised on mistrust of governmental power”).

^ See Keighley, supra note 39 (noting that Wollschlaeger’s breadth gives states the power to “regulate medicine based on ideological motivations”); accord Tribe, supra note 58.

^ Pickup v. Brown, 740 F.3d 1208, 1216 (9th Cir. 2014) (O’Scannlain, J., dissenting from denial of rehearing en banc).

^ Pickup and Wollschlaeger each relied, in part, on the so-called distinction between professional, or occupational, conduct and speech — with each constructing different theories as to how speech might travel from one category to the other: in Pickup, on the basis of its status as treatment, in Wollschlaeger, on the basis of its utterance in the examination room. In King, the Third Circuit rejected this dichotomy between professional conduct and speech as largely “illusory,” King v. Governor of N.J., No. 13-4429, 2014 WL 4455009, at *7 (3d Cir. Sept. 11, 2014), agreeing with the Pickup dissent’s critique; it then applied intermediate scrutiny to a regulation of professional speech within the examination room, see id. at *15 (“Intermediate scrutiny is necessary to ensure that State legislatures are regulating professional speech to prohibit the provision of harmful or ineffective professional services, not to inhibit politically-disfavored messages.”). King thus aptly rejected the Pickup and Wollschlaeger rules as either inadministrable or normatively problematic. Whether or not intermediate scrutiny will prove to be the ideal frame, King is certainly the most speech-protective and effectively balanced decision thus far.

^ Cf. McCullen v. Coakley, 134 S. Ct. 2518, 2540 (2014) (“[T]he prime objective of the First Amendment is not efficiency.”); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 869 (1992) (opinion of O’Connor, Kennedy, and Souter, JJ.) (“Liberty must not be extinguished for want of a line that is clear.”).

^ See Brief of the American Bar Association as Amicus Curiae in Support of Petition for Rehearing En Banc of Plaintiffs-Appellees, Wollschlaeger, 760 F.3d 1195 (No. 12-14009). The court’s normative understanding of professionalism could as easily extend to a variety of professions — including law — and, indeed, a limitation of the court’s rule to doctors presents its own doctrinal problems. See Citizens United, 130 S. Ct. at 899 (“Speech restrictions based on the identity of the speaker are all too often simply a means to control content.”).