Amicus Brief: Wollschlaeger v. Governor, State of Florida (En Banc)

Moms Demand Action for Gun Sense in America filed this brief in the U.S. Court of Appeals for the Eleventh Circuit to urge the full court to correct a fundamentally flawed decision by a three-judge panel. The panel upheld a Florida law that prohibits doctors from speaking with their patients about firearm safety. This brief urges the full court to reverse that decision and strike down the law, because it interferes with patients’ right to receive truthful, non-misleading health and safety information from their doctors.

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No. 12-14009
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
DR. BERND WOLLSCHLAEGER, et al.,
Plaintiffs-Appellees,
v.
GOVERNOR OF THE STATE OF FLORIDA, et al.,
Defendants-Appellants.
On Appeal from the United States District Court
for the Southern District of Florida
__________________________________________________________________
EN BANC BRIEF OF AMICUS CURIAE MOMS DEMAND ACTION FOR
GUN SENSE IN AMERICA IN SUPPORT OF PLAINTIFFS-APPELLEES
AND AFFIRMANCE
__________________________________________________________________
J. Adam Skaggs
MOMS DEMAND ACTION FOR GUN
SENSE IN AMERICA
P.O. Box 4184
New York, NY 10163
(646) 324-8201
Gregory A. Castanias
Charlotte H. Taylor
JONES DAY
51 Louisiana Ave., N.W.
Washington, D.C. 20001
(202) 879-3939
Peter C. Canfield
JONES DAY
1420 Peachtree Street, N.E.
Suite 800
Atlanta, Georgia 30309-3053
(404) 581-3939
-i-
__________________________________________________________________
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
__________________________________________________________________
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Moms
Demand Action for Gun Sense in America discloses it is a part of a non-profit
organization, Everytown for Gun Safety, which has no parent corporations and issues
no stock. Accordingly, no publicly held corporation owns 10% or more of its stock.
Pursuant to Eleventh Circuit Rule 26.1-1, the undersigned counsel certifies
that, in addition to the persons and entities identified in the petition for rehearing en
banc and subsequent briefs, the following persons and entities have an interest in the
outcome of this matter:
Amicus Curiae:
Moms Demand Action for Gun Sense in America
Everytown for Gun Safety Action Fund
Everytown for Gun Safety Support Fund
Counsel for Amicus Curiae:
JONES DAY,
Peter C. Canfield
Gregory A. Castanias
Charlotte H. Taylor
-iiMOMS
DEMAND ACTION FOR GUN SENSE IN AMERICA,
J. Adam Skaggs
Dated: April 27, 2016 /s/ Gregory A. Castanias
Counsel for Amicus Curiae
TABLE OF CONTENTS
Page
-iiiCERTIFICATE
OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT…………………………………………………………………….. i
TABLE OF AUTHORITIES ……………………………………………………………………………….. iv
INTEREST OF THE AMICUS CURIAE…………………………………………………………….. 1
STATEMENT OF THE ISSUES ………………………………………………………………………….. 3
SUMMARY OF ARGUMENT……………………………………………………………………………… 4
ARGUMENT AND AUTHORITIES …………………………………………………………………… 5
I. THE DOCTOR-PATIENT RELATIONSHIP PROVIDES
PARENTS WITH VITAL HEALTH AND SAFETY
INFORMATION, INCLUDING INFORMATION ABOUT
FIREARM SAFETY……………………………………………………………………………………. 6
A. Candid, Politically Unrestricted Communications from Doctors
Are Essential to Patients…………………………………………………………………….. 7
B. Parents In Particular Rely On Their Doctors For Accurate Health
And Safety Information About Raising Their Children………………………. 9
C. Studies Demonstrate That Doctor-Patient Communications
About Firearm Safety Lead To Better Storage Practices……………………… 9
II. STRICT SCRUTINY APPLIES TO THE ACT’S INQUIRY,
RECORD-KEEPING, ANTI-DISCRIMINATION, AND ANTIHARASSMENT
PROVISIONS BECAUSE THEY PLACE
CONTENT-BASED RESTRICTIONS ON ACCURATE HEALTH
AND SAFETY INFORMATION PATIENTS RECEIVE FROM
THEIR DOCTORS …………………………………………………………………………………… 10
A. The First Amendment Protects the Right to Receive Information,
Including Within the Doctor-Patient Relationship……………………………. 10
B. The Act’s Inquiry, Record-Keeping, Anti-Discrimination, and
Anti-Harassment Provisions Are Content-Based Regulations of
Speech Subject to Strict Scrutiny………………………………………………………. 12
C. Under Reed v. Town of Gilbert, Strict Scrutiny Applies to These
Provisions; At a Minimum, Intermediate Scrutiny Applies ……………….. 17
-ivIII.
ALL FOUR PROVISIONS ARE UNCONSTITUTIONAL BECAUSE
THEY IMPROPERLY LIMIT THE SPEECH AVAILABLE TO
WILLING LISTENERS IN ORDER TO PROTECT A MINORITY
OF UNWILLING LISTENERS ……………………………………………………………….. 22
IV. THE ACT’S ANTI-HARASSMENT PROVISION IS
UNCONSTITUTIONALLY VAGUE………………………………………………………. 28
CONCLUSION …………………………………………………………………………………………………… 28
CERTIFICATE OF COMPLIANCE ………………………………………………………………….. 30
CERTIFICATE OF SERVICE……………………………………………………………………………. 31
-vTABLE
OF AUTHORITIES
Page(s)
CASES
44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484, 116 S. Ct. 1495 (1996)…………………………………………………………………. 21
Bantam Books, Inc. v. Sullivan,
372 U.S. 58, 83 S. Ct. 631 (1963)………………………………………………………………………. 13
Bates v. State Bar of Arizona,
433 U.S. 350, 97 S. Ct. 2691 (1977)…………………………………………………………………… 23
Bd. of Educ. v. Pico ex rel. Pico,
457 U.S. 853, 102 S. Ct. 2799 (1982)……………………………………………………………… 3, 11
Bolger v. Youngs Drug Prods. Corp.,
463 U.S. 60, 103 S. Ct. 2875 (1983)…………………………………………………………………… 25
Brown v. Entm’t Merchants Ass’n,
564 U.S. 786, 131 S. Ct. 2729 (2011)…………………………………………………………………. 22
Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York,
447 U.S. 557, 100 S. Ct. 2343 (1980)……………………………………………………….19, 23, 24
Conant v. Walters,
309 F.3d 629 (9th Cir. 2002) ………………………………………………………………………………. 8
Duncan v. Walker,
533 U.S. 167, 121 S. Ct. 2120 (2001)…………………………………………………………………. 15
Erznoznik v. City of Jacksonville,
422 U.S. 205, 95 S. Ct. 2268 (1975)…………………………………………………………………… 26
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 120 S. Ct. 1291 (2000)…………………………………………………………………. 15
-viFrisby
v. Schultz,
487 U.S. 474, 108 S. Ct. 2495 (1988)…………………………………………………………………. 26
Hill v. Colorado,
530 U.S. 703, 120 S. Ct. 2480 (2000)……………………………………………………………. 20, 26
King v. Governor of New Jersey,
767 F.3d 216 (3d Cir. 2014)………………………………………………………………………………… 8
Kolender v. Lawson,
461 U.S. 352, 103 S. Ct. 1855 (1983)…………………………………………………………………. 28
Larimore v. State,
2 So. 3d 101 (Fla. 2008) ……………………………………………………………………………………. 15
*Lorillard Tobacco Co. v. Reilly,
533 U.S. 525, 121 S. Ct. 2404 (2001)……………………………………………………………. 10, 25
*Martin v. City of Struthers,
319 U.S. 141, 63 S. Ct. 862 (1943)……………………………………………………. 11, 24, 25, 27
McCullen v. Coakely,
134 S. Ct. 2518 (2014)………………………………………………………………………………………. 20
NAACP v. Button,
371 U.S. 415, 83 S. Ct. 328 (1963)……………………………………………………………….. 18, 21
Planned Parenthood of Southwestern Pennsylvania v. Casey,
505 U.S. 833, 112 S. Ct. 2791 (1992)……………………………………………………………… 5, 21
Procunier v. Martinez,
416 U.S. 396, 94 S. Ct. 1800 (1974)……………………………………………………………… 19, 20
*R.A.V. v. City of St. Paul,
505 U.S. 377, 112 S. Ct. 2538 (1992)……………………………………………………………. 17, 20
*Reed v. Town of Gilbert
135 S. Ct. 2218 (2015)…………………………………………………………………………………..passim
-vii-
*Reno v. ACLU,
521 U.S. 844, 117 S. Ct. 2329 (1997)……………………………………………………….25, 27, 28
Rust v. Sullivan,
500 U.S. 173, 111 S. Ct. 1759 (1991)…………………………………………………………………. 11
*Sorrell v. IMS Health Inc.,
564 U.S. 552, 131 S. Ct. 2653 (2011)……………………………………………………….11, 18, 20
Stanley v. Georgia,
394 U.S. 557, 89 S. Ct. 1243 (1969)…………………………………………………………………….. 6
United States v. Am. Library Ass’n, Inc.,
539 U.S. 194, 123 S. Ct. 2297 (2003)…………………………………………………………………. 13
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748, 96 S. Ct. 1817 (1976)…………………………………………………………11, 19, 23
Whitney v. California,
274 U.S. 357, 47 S. Ct. 641 (1927)…………………………………………………………………….. 24
Wollschlaeger v. Farmer,
No. 1:11-CV-22026 (S.D. Fla. Nov. 11, 2011)……………………………………………… 15, 17
Wollschlaeger v. Governor of Florida,
797 F.3d 859 (11th Cir. 2014) …………………………………………………………………………… 23
Zauderer v. Office of Disciplinary Counsel,
471 U.S. 626, 105 S. Ct. 2265 (1985)……………………………………………………………. 18, 21
STATUTES
Fla. Stat. Ann. § 790.338(1)………………………………………………………………………………… 3, 14
Fla. Stat. Ann. § 790.338(2)……………………………………………………………………………3, 12, 13
Fla. Stat. Ann. § 790.338(4)……………………………………………………………………………………. 15
Fla. Stat. Ann. § 790.338(5)………………………………………………………………………………… 3, 15
-viiiFla.
Stat. Ann. § 790.338(6)……………………………………………………………………………3, 16, 28
Fla. Stat. Ann. § 790.338(8)……………………………………………………………………………………. 12
Fla. Stat. Ann. § 456.072(1)……………………………………………………………………………………. 12
OTHER AUTHORITIES
Teresa Albright & Sandra Burge, Improving Firearm Storage Habits: Impact of
Brief Office Counseling by Family Physicians,
16 J. Am. Bd. of Family Prac. 40 (2003)………………………………………………………… 9, 26
American Academy of Pediatrics, How Pediatricians Can Advocate for
Children’s Safety in Their Communities, available at
http://bit.ly/1RHF63O……………………………………………………………………………………. 10
Shari L. Barkin et al., Is Office-Based Counseling About Media Use, Timeouts,
and Firearm Storage Effective?, 122 Pediatrics 15 (2008)…………………………………………… 9
BeSmartForKids.org ……………………………………………………………………………………………….. 1
Black’s Law Dictionary (10th ed. 2014)………………………………………………………………….. 16
Center for Disease Control and Prevention, Fatal Injury Reports, National
and Regional, 1999-2014, available at: http://1.usa.gov/1ni8EV8;………………………….. 2
Tamera Coyne-Beasley et al., “Love Our Kids, Lock Your Guns,” A
Community-Based Firearm Safety Counseling and Gun Lock Distribution
Program, 155 Archives of Pediatric & Adolescent Med. 659 (2001) ……………………… 9
Everytown Poll Memo: Gun Storage and Child Access Prevention (June 23, 2014)………………. 26
Fed. R. App. P. 29(c)(5)…………………………………………………………………………………………… 3
Lawrence O. Gostin, Public Health Law (2d ed. 2008)……………………………………………….. 7
Grossman, Reay, & Baker, Self-inflicted and unintentional firearm injuries
among children and adolescents: the source of the firearm,
153 Archives of Pediatric & Adolescent Med. 875 (1999) …………………………………… 2
-ixMoms
Demand Action & Everytown for Gun Safety,
Innocents Lost: A Year of Unintentional Gun Deaths (2014)……………………………….1, 2, 10
Okoro et al., Prevalence of Household Firearms and Firearm-Storage Practice in the
50 States and the District of Columbia, 116 Pediatrics 3 (Sept. 1, 2005) …………………….. 2
Robert Post, Informed Consent to Abortion: A First Amendment Analysis of
Compelled Physician Speech, 2007 U. Ill. L. Rev. 939 (2007) …………………………………. 7, 8
Press Release, Moms Demand Action, Two Hundred Unintentional Child
Shootings This Year (Sept. 23, 2015), available at
http://every.tw/1Sy8wPB………………………………………………………………………………….. 1
Shuster et al., Firearm Storage Patterns in U.S. Homes with Children,
90 Am. J. Pub. Health (Apr. 2000)……………………………………………………………………… 2
INTEREST OF THE AMICUS CURIAE
Formed in the wake of the Sandy Hook Elementary shooting, Moms Demand
Action for Gun Sense in America (“Moms Demand Action”) is a grassroots
movement of American mothers fighting for public safety measures that respect the
Second Amendment and protect people from gun violence. Part of Everytown for
Gun Safety (“Everytown”), the nation’s largest gun-violence-prevention organization,
Moms Demand Action promotes firearm safety nationwide by engaging in
community education and political advocacy.
The leading cause of unintentional child gun deaths—and, accordingly, a top
concern of Moms Demand Action—is unsafe firearm storage in the home. In a firstof-its-kind
analysis in 2014, Moms Demand Action and Everytown determined that
more than two-thirds of fatal, unintentional shootings of children could be avoided if
firearms were stored responsibly out of children’s reach. See Moms Demand Action
& Everytown for Gun Safety, Innocents Lost: A Year of Unintentional Gun Deaths (2014)
(hereinafter “Innocents Lost”). And Moms Demand Action has launched a campaign to
reduce unintentional child gun deaths by educating communities about safe firearm
storage practices and encouraging public discussion of the subject. See
BeSmartForKids.org, a campaign to reduce child gun deaths; see also Press Release,
Moms Demand Action, Two Hundred Unintentional Child Shootings This Year (Sept. 23,
2015), available at http://every.tw/1Sy8wPB.
Over 2 million American children live in households with unsecured guns—
– 2 –
and 1.7 million live in homes that contain guns that are both loaded and unlocked.
Shuster et al., Firearm Storage Patterns in U.S. Homes with Children, 90 Am. J. Pub. Health
4 (Apr. 2000); Okoro et al., Prevalence of Household Firearms and Firearm-Storage Practice in
the 50 States and the District of Columbia, 116 Pediatrics 3 (Sept. 1, 2005). Each year,
nearly 100 children 17 and under are killed in unintentional shootings, and the vast
majority of these deaths take place in the victim’s own home or that of a relative or
friend. See Center for Disease Control and Prevention, Fatal Injury Reports, National
and Regional, 1999-2014, available at: http://1.usa.gov/1ni8EV8; Innocents Lost at 3; see
also, e.g., Grossman, Reay, & Baker, Self-inflicted and unintentional firearm injuries among
children and adolescents: the source of the firearm, 153 Archives of Pediatric & Adolescent
Med. 875 (1999) (concluding that most guns involved in child and adolescent suicides
and accidental injuries came from the victim’s home that of a friend or relative).
Amicus’s research established that over two-thirds of these tragedies could have been
avoided through safe firearm storage. Innocents Lost at 3.
The members of Moms Demand Action—indeed, all parents—are directly
affected by preventable firearm deaths. Amicus believes it essential to educate patients
about safe firearm storage so that families can choose to implement best practices at
home. Doctors—in particular, pediatricians—are at the front lines of educational
efforts because they are often parents’ primary reliable source of child safety
information.
Florida’s Firearm Owners Privacy Act (the “Act”) restricts doctors’ ability to
– 3 –
ask patients about firearm ownership and provide objective, factually accurate
information on gun safety, and is therefore a direct obstacle to this important
educational project. This cannot be squared with the First Amendment, which
protects not only doctors’ right to speak, but also parents’ “right to receive
information and ideas.” Bd. of Educ. v. Pico ex rel. Pico, 457 U.S. 853, 867, 102 S. Ct.
2799, 2808 (1982) (plurality op.) (citation omitted).
Amicus respectfully urges this Court to affirm the district court’s judgment and
ensure that the First Amendment rights of parents—and all who would welcome
information about gun safety—are protected.1
STATEMENT OF THE ISSUES
1. What level of scrutiny applies to the record-keeping, inquiry, antidiscrimination,
and anti-harassment provisions of the Act, Fla. Stat. Ann.
§ 790.338(1), (2), & (5), and are those provisions constitutional under the appropriate
level of scrutiny?2
2. Is the Act’s anti-harassment provision, Fla. Stat. Ann. § 790.338(6),
1 No party’s counsel authored this brief in whole or in part. No party or party’s
counsel contributed money that was intended to fund preparing or submitting this
brief. No person—other than amicus curiae and its counsel—contributed money that
was intended to fund preparing or submitting this brief. See Fed. R. App. P. 29(c)(5).
2 Amicus recognizes that with respect to the anti-harassment provision, this
Court requested briefing on vagueness. Amicus addresses that issue in Part IV and
also maintains that the provision is a facially content-based restriction on doctorpatient
communications that is unconstitutional under the First Amendment, see infra
Parts II-III.
– 4 –
unconstitutionally vague?
SUMMARY OF ARGUMENT
I. The doctor-patient relationship is a critical means for a populace
overwhelmed by a torrent of behavioral messages to receive accurate, unbiased public
health information. Parents, in particular, rely on their pediatricians for medically
sound advice for raising healthy, safe children. Studies show that when doctors make
routine inquiries about firearm ownership and provide follow-up counseling about
safe storage, families store their guns more safely.
II. The Act’s inquiry, record-keeping, anti-discrimination, and antiharassment
provisions are all subject to strict scrutiny because they place contentbased
restrictions on accurate information that patients receive from their doctors.
The First Amendment protects patients’ right to receive this essential information.
The inquiry, record-keeping, and anti-harassment provisions explicitly restrict speech
on the basis of content; and the anti-discrimination provision, read against the statute
as a whole, is also aimed at suppressing speech on the basis of content. These
regulations are therefore subject to strict scrutiny. See Reed v. Town of Gilbert 135 S. Ct.
2218, 2228 (2015).
The State’s arguments that these provisions are subject to lesser scrutiny fail:
First, even assuming that doctors, as professionals, have diminished First Amendment
rights, patients’ right to receive accurate information applies fully in this context.
Second, the Supreme Court has rejected the argument that the government may restrict
– 5 –
speech to protect supposedly vulnerable listeners. And third, even assuming that the
Supreme Court applied lesser scrutiny to the informed consent provision at issue in
Planned Parenthood of Southwestern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791
(1992), that is not dispositive because Casey addressed a law requiring—rather than, as
here, prohibiting—the disclosure of truthful information to patients.
III. The inquiry, record-keeping, anti-discrimination, and anti-harassment
provisions fail strict, or even intermediate, scrutiny, most obviously because they are
insufficiently tailored to the government’s claimed interests. The Supreme Court has
repeatedly held that laws that curtail the speech available to a general audience in
order to protect a minority of unwilling listeners sweep too broadly under the First
Amendment.
IV. The Act’s anti-harassment provision is also unconstitutionally vague.
The provision requires doctors to guess at where to draw the line between inquiries
and counseling that make a particular patient uncomfortable but are medically
necessary and inquiries and counseling that constitute “unnecessary harassment.” It
therefore gives insufficient notice of what is prohibited, and it is invalid under the
Due Process Clause.
ARGUMENT AND AUTHORITIES
The Act places content-based restrictions on doctor-patient communications
and thereby infringes listeners’ rights by depriving them of truthful, lifesaving health
and safety information. The State maintains that the Act is simply a “reasonable
– 6 –
regulation” of the practice of medicine that this Court should treat deferentially. State
Br. 34-44. But this position ignores a fundamental principle of the First Amendment:
“[T]he Constitution protects the right to receive information and ideas.” Stanley v.
Georgia, 394 U.S. 557, 564, 89 S. Ct. 1243, 1247 (1969). Neither the State nor any of
its amici have ever even acknowledged this principle, much less attempted to explain why
the First Amendment permits legislatures to place content-based limitations on
accurate health and safety information that patients receive from their doctors.
The Act’s content-based restrictions on the communication of truthful, nonmisleading
information are subject to strict scrutiny. And the Act cannot survive
strict—or even intermediate—scrutiny. Under well-established Supreme Court
precedent, a law that restricts the information willing listeners may receive in order to
protect a minority of unwilling listeners is invalid. This Court should therefore hold
the Act unconstitutional.
I. THE DOCTOR-PATIENT RELATIONSHIP PROVIDES PARENTS
WITH VITAL HEALTH AND SAFETY INFORMATION,
INCLUDING INFORMATION ABOUT FIREARM SAFETY.
Speech between doctors and patients is a vital means of communicating
trustworthy, research-based information about health and safety to patients within a
crowded marketplace of ideas. This function is particularly important in the case of
child health and safety.
– 7 –
A. Candid, Politically Unrestricted Communications from Doctors
Are Essential to Patients.
Patients rely on their doctors for information and advice that will allow them to
make optimal decisions about medical treatment and their lifestyles in general. See
Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled
Physician Speech, 2007 U. Ill. L. Rev. 939, 978 (2007) (observing that patients “wish to
receive knowledge that our doctors can uniquely provide, so that we can decide for
ourselves what our medical care ought to be”). Indeed, in a world in which citizens
are inundated with advertising, opinions ventilated on the Internet, and other
messages aimed at influencing behavior, there is a pressing need for accurate,
unbiased health information. In the words of a leading public health law scholar,
“[t]he population must at least be aware of the health consequences of risk behaviors
to make informed decisions.” Lawrence O. Gostin, Public Health Law 333 (2d ed.
2008). “The citizenry is bombarded with behavioral messages that affect its health—
by the media and entertainment, trade associations and corporations, religious and
civic organizations, and family and peers. Public health officials strive to be heard
above the din of conflicting and confusing communications.” Id.
Indeed, doctor-patient communications are often patients’ sole reliable source
of information based on research and the consensus of the medical community. As
the Third Circuit has observed, “professionals have access to a body of specialized
knowledge. . . . [T]his information . . . will often be communicated to [citizens]
– 8 –
directly by a licensed professional during the course of a professional relationship.
Thus, professional speech . . . serves as an important channel for the communication
of information that might otherwise never reach the public.” King v. Governor of New
Jersey, 767 F.3d 216, 234 (3d Cir. 2014); see also Conant v. Walters, 309 F.3d 629, 644 (9th
Cir. 2002) (Kozinski, J., concurring) (“[W]ord-of-mouth and the Internet are poor
substitutes for a medical doctor; information obtained from chat rooms and tabloids
cannot make up for the loss of individualized advice from a physician with many years
of training and experience.”); Post, Informed Consent, 2007 U. Ill. L. Rev. at 977 (“[W]e
regard private, professional communication between doctors and patients as a
significant source of expert, dependable information.”).
This information is no less essential because it may at times provoke
discomfort or touch on private subjects. Often, the content of doctor-patient
communications may be unwelcome. Doctors frequently counsel patients that they
should lose weight or exercise more; or that pleasurable habits, such as smoking,
drinking excessive alcohol, or eating rich foods, are unhealthy. To provide sound
advice, doctors also must frequently ask questions concerning private, sensitive
subjects such as sexual behavior and domestic abuse. But doctors are guided in their
actions by the medical community’s consensus about appropriate care. Patients visit
their doctors with the expectation that doctors will tell them what is good for them,
not what they want to hear.
– 9 –
B. Parents In Particular Rely On Their Doctors For Accurate Health
And Safety Information About Raising Their Children.
Visits to the pediatrician are often parents’ primary source of reliable
information about how to raise safe and healthy children. Pediatricians inform new
parents what sleeping practices minimize the risk of crib death; what foods babies
should avoid; and how to “babyproof” the child’s home. As the children grow, these
conversations move to topics such as using gates at staircases to prevent falls;
swimming pool safety; and proper storage of dangerous chemicals. Storing firearms
safely out of reach of curious children is a logical and important part of this dialogue.
C. Studies Demonstrate That Doctor-Patient Communications About
Firearm Safety Lead To Better Storage Practices.
Several studies show that when doctors inquire about firearm ownership and
provide brief follow-up counseling, patients are significantly more likely to store
firearms safely. One found that this approach led to a 21.4% increase in safe storage
practices among patients receiving counseling. Shari L. Barkin et al., Is Office-Based
Counseling About Media Use, Timeouts, and Firearm Storage Effective?, 122 Pediatrics 15
(2008). Another found that after a single instance of verbal counseling by a family
doctor (or counseling coupled with a brochure), families were three times more likely
to make a safe change in firearm storage habits. Teresa Albright & Sandra Burge,
Improving Firearm Storage Habits: Impact of Brief Office Counseling by Family Physicians, 16 J.
Am. Bd. of Family Prac. 40, 44 (2003); see also Tamera Coyne-Beasley et al., “Love Our
Kids, Lock Your Guns,” A Community-Based Firearm Safety Counseling and Gun Lock
– 10 –
Distribution Program, 155 Archives of Pediatric & Adolescent Med. 659, 663 (2001)
(concluding that tailored physician counseling can improve rate of safe firearm
storage). And research conducted by amicus showed that more than two-thirds of
fatal, unintentional shootings of children could be avoided if gun owners stored
firearms responsibly. See Innocents Lost at 6. Thus, the American Academy of
Pediatrics recommends inquiries about firearm ownership as part of routine pediatric
care. See American Academy of Pediatrics, How Pediatricians Can Advocate for Children’s
Safety in Their Communities, available at http://bit.ly/1RHF63O. Pediatricians’
information about firearm safety—if parents receive it—will save children’s lives.
II. STRICT SCRUTINY APPLIES TO THE ACT’S INQUIRY, RECORDKEEPING,
ANTI-DISCRIMINATION, AND ANTI-HARASSMENT
PROVISIONS BECAUSE THEY PLACE CONTENT-BASED
RESTRICTIONS ON ACCURATE HEALTH AND SAFETY
INFORMATION PATIENTS RECEIVE FROM THEIR DOCTORS.
Strict scrutiny applies to the Act’s inquiry, record-keeping, anti-discrimination,
and anti-harassment provisions because they place content-based restrictions on
speech of great First Amendment value: truthful, literally lifesaving information that
patients would otherwise receive from their doctors.
A. The First Amendment Protects the Right to Receive Information,
Including Within the Doctor-Patient Relationship.
The First Amendment protects listeners’ right to receive information just as
strongly as it protects speakers’ right to disseminate it. See, e.g., Lorillard Tobacco Co. v.
Reilly, 533 U.S. 525, 565, 121 S. Ct. 2404, 2427 (2001) (“[A] speech regulation cannot
– 11 –
unduly impinge on . . . the adult listener’s opportunity to obtain information.”); Pico,
457 U.S. at 866-67, 102 S. Ct. at 2808 (“[T]he Constitution protects the right to
receive information and ideas.”) (citing Stanley, 394 U.S. at 564, 89 S. Ct. at 1247);
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756,
96 S. Ct. 1817, 1823 (1976) (“[T]he protection afforded [by the First Amendment] is
to the communication, to its source and to its recipients both.”); Martin v. City of
Struthers, 319 U.S. 141, 143, 63 S. Ct. 862, 863 (1943) (freedom of speech “embraces
the right to distribute literature and necessarily protects the right to receive it”)
(citation omitted).
This principle extends to the doctor’s office. As demonstrated, patients rely on
their doctors for valuable public health information. Patients’ interest in receiving this
information merits constitutional protection. As the Supreme Court affirmed in
Sorrell v. IMS Health Inc., 564 U.S. 552, 566, 131 S. Ct. 2653, 2664 (2011), safeguarding
the flow of information is particularly important “in the fields of medicine and public
health, where information can save lives.” See also Rust v. Sullivan, 500 U.S. 173, 200,
111 S. Ct. 1759, 1776 (1991) (recognizing argument that “[the relationship] between
doctor and patient should enjoy protection under the First Amendment,” and
upholding regulations because they “do not significantly impinge upon [that]
relationship”).
– 12 –
B. The Act’s Inquiry, Record-Keeping, Anti-Discrimination, and
Anti-Harassment Provisions Are Content-Based Regulations of
Speech Subject to Strict Scrutiny.
The Act’s inquiry, record-keeping, anti-discrimination, and anti-harassment
provisions are all content-based regulations of valuable speech that receive strict
scrutiny.
The Inquiry Provision: The Act’s inquiry provision, Fla. Stat. Ann. § 790.338(2),
provides that doctors “shall respect a patient’s right to privacy and should refrain
from making a written inquiry or asking questions concerning the ownership of a firearm or
ammunition . . . .” Fla. Stat. Ann. § 790.338(2) (emphasis added). The Act expressly
distinguishes between inquiries and questions concerning firearm ownership and
inquiries and questions on other topics, and limits only the former. This is
quintessential content discrimination, subject to strict scrutiny. See Reed, 135 S. Ct. at
2227 (“Government regulation of speech is content based if a law applies to particular
speech because of the topic discussed . . . .”).
The inquiry provision will chill—if not suppress entirely—doctor-patient
communications about firearm safety. The Act threatens doctors who violate the
provision with disciplinary action. See Fla. Stat. Ann. § 790.338(8) (providing that
“[v]iolations of the provisions of subsections (1)-(4) constitute grounds for
disciplinary action”); Fla. Stat. Ann. § 456.072(1)(nn) (providing that “[v]iolating any
of the provisions of § 790.338” is grounds for discipline). Although the Act elsewhere
provides that firearm-related inquiries are permissible when “a health care
– 13 –
practitioner . . . in good faith believes that this information is relevant to the patient’s
medical care or safety,” Fla. Stat. Ann. § 790.338(2), this will not eliminate the Act’s
chilling effect: The “good faith” determination can only be made post hoc, by a court
or disciplinary board, and cannot provide a clear, ex ante safe harbor for physician
speech. In consequence, doctors will take the safe course and refrain from routine
inquiries and follow-up conversations on the topic. In turn, a substantial number of
gun-owning patients—those who give doctors no specific reason to raise the issue—
will never receive the counseling and information that their doctors would otherwise
have provided. 3
3 Amicus curiae the National Rifle Association (“NRA”) suggests that the Act’s
inquiry provision is merely precatory and that it therefore “cannot possibly violate the
First Amendment.” NRA Br. 3-15. As an initial matter, the provision is not
precatory: it provides that doctors “shall respect a patient’s right to privacy” and then
specifies that in order to obey this command, doctors “should refrain” from inquiries
about firearm ownership. Fla. Stat. Ann. § 790.338(2). The obvious import of this
language is that the legislature deems inquiries about firearm ownership to be
violations of patient privacy exposing doctors to punishment.
In any event, the assertion that only “enforceable” laws that prohibit speech
can violate the First Amendment, NRA Br. 14, is simply wrong. It is established, for
example, that the government may violate the First Amendment by “deny[ing] a
benefit to a person on a basis that infringes his constitutionally protected freedom of
speech even if he has no entitlement to that benefit.” United States v. Am. Library
Ass’n, Inc., 539 U.S. 194, 210, 123 S. Ct. 2297, 2307 (2003) (citation and alterations
omitted). And relevant here, a nominally precatory government action that, by design
and in practical effect, chills protected speech violates the First Amendment. See
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66-67, 83 S. Ct. 631, 637-38 (1963) (finding a
First Amendment violation because, “though the Commission is limited to informal
sanctions[,] . . . the record amply demonstrates that the Commission deliberately set
about to achieve the suppression of publications deemed ‘objectionable’ and
succeeded in its aim”).
– 14 –
The Record-Keeping Provision: The record-keeping provision is similarly contentbased
on its face. It provides that “[a] health care practitioner . . . may not
intentionally enter any disclosed information concerning firearm ownership into the
patient’s medical record if the practitioner knows that such information is not relevant
to the patient’s medical care or safety, or the safety of others.” Fla. Stat. Ann.
§ 790.338(1) (emphasis added). Like the inquiry provision, the record-keeping
provision singles out one topic—firearm ownership—for unfavorable treatment.
This provision will also chill doctor communications to patients about firearm
safety. Even setting aside the inquiry provision, doctors will be less likely to initiate
discussions about firearm ownership when they know they cannot record information
they learn in the patient’s medical record without some immediate reason to believe
that the information is relevant to the patient’s medical care. Moreover, because a
patient’s medical record will not contain any information about firearm ownership
unless the doctor had prior reason to believe it relevant, the doctor may not later
recall that the patient owns a gun and will therefore not engage in firearm safety
counseling at a time when it becomes relevant. For example, a family practitioner who,
in conformity with the record-keeping provision, omits a notation that a couple owns
firearms from the wife’s medical record is less likely to provide appropriate safe
storage counseling when that woman later has a child.
The Anti-Discrimination Provision: The Act’s anti-discrimination provision is also a
content-based law aimed at suppressing speech. The anti-discrimination provision
– 15 –
mandates that doctors “may not discriminate against a patient based solely upon the
patient’s exercise of the constitutional right to own and possess firearms or
ammunition.” Fla. Stat. Ann. § 790.338(5). Read in the context of the statute as a
whole, this provision targets firearm-related speech for suppression. The statute
separately, explicitly provides that the Act “does not alter existing law regarding a
physician’s authorization to choose his or her patients.” Fla. Stat. Ann. § 790.338(4).
The anti-discrimination provision, read against this background—as it must be, see
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S. Ct. 1291, 1301
(2000); Larimore v. State, 2 So. 3d 101, 106 (Fla. 2008)—does not ban discriminatory
conduct. If the provision is not to become a nullity, see Duncan v. Walker, 533 U.S.
167, 174, 121 S. Ct. 2120, 2122 (2001) (“It is our duty to give effect, if possible, to
every clause and word of a statute.” (internal quotation marks omitted)); Larimore, 2
So. 3d at 106 (same), the only plausible reading is that it reaches verbal
communications perceived as disfavoring gun owners, as indeed the legislative history
indicates, see Joint Statement of Undisputed Facts, Wollschlaeger v. Farmer, No. 1:11-CV-
22026 (S.D. Fla. Nov. 11, 2011), Dkt. 87 (“Statement of Facts”), at ¶¶ 3-10
(describing legislature’s focus on incidents in which doctors asked patients about, and
made recommendations regarding, firearm ownership). The anti-discrimination
provision is therefore not analogous to the anti-discrimination laws cited by the State,
all of which actually target discriminatory conduct, rather than speech. See State Br.
– 16 –
33. It is instead a content-based regulation of speech that will further chill doctorpatient
communications about gun safety.
The Anti-Harassment Provision: The anti-harassment provision also facially
discriminates against firearm-related speech. It provides that doctors “shall respect a
patient’s legal right to own or possess a firearm and should refrain from unnecessarily
harassing a patient about firearm ownership during an examination.” Fla. Stat. Ann.
§ 790.338(6) (emphasis added). Although harassment may take the form of words or
conduct, see Black’s Law Dictionary, at 733 (10th ed. 2014) (defining harassment as
“[w]ords, conduct, or action . . . that . . . annoys, alarms, or causes substantial
emotional distress . . . and serves no legitimate purpose”), the statute makes plain that
this provision targets speech and does so in a content-based fashion. Indeed, the fact
that the provision bars “unnecessar[y] harass[ment]” of a patient “about” gun
ownership demonstrates both: Speech, unlike conduct, is naturally understood to be
“about” a specific subject matter, and discussions “about” only one subject—“firearm
ownership”—are targeted. The phrase “during an examination” reinforces that
reading—it is difficult to imagine what annoying or alarming conduct “about firearm
ownership” might take place within the confines of a doctor’s examination.4

4 Amicus the NRA argues that the anti-harassment provision is only precatory.
For the reasons stated with respect to the similarly worded inquiry provision, this
argument fails. See supra at 13 n.3.
– 17 –
The anti-harassment provision is “presumptively invalid” under R.A.V. v. City
of St. Paul, 505 U.S. 377, 394, 112 S. Ct. 2538, 2549 (1992), because it regulates
harassing speech on the basis of content. Moreover, the anti-harassment provision
will impermissibly chill legitimate doctor-patient communications about firearm safety
because a prudent doctor, anxious to avoid liability for “unnecessarily harassing”
patients with firearm-related inquiries, will curtail conversations about guns with her
patients when they display any discomfort. See also infra Part IV.
C. Under Reed v. Town of Gilbert, Strict Scrutiny Applies to These
Provisions; At a Minimum, Intermediate Scrutiny Applies.
All four of these content-based provisions are subject to strict scrutiny. In Reed
v. Town of Gilbert, the Supreme Court held, without qualification, that “strict scrutiny
applies . . . when a law is content based on its face.” 135 S. Ct. at 2228. Accordingly,
the inquiry, record-keeping, and anti-harassment provisions should be subjected to
strict scrutiny.
Further, as Reed teaches, “strict scrutiny applies . . . when the purpose and
justification for [a] law are content based,” regardless of whether the law is facially
content-based. 135 S. Ct. at 2228; see also R.A.V., 505 U.S. at 382, 112 S. Ct. at 2542
(“The First Amendment generally prevents government from proscribing speech, or
even expressive conduct, because of disapproval of the ideas expressed.”) (citations
omitted). The “purpose and justification” of the anti-discrimination provision, as the
legislative history demonstrates, see Statement of Facts ¶¶ 3-10, are content-based: the
– 18 –
legislature wished to prevent doctors from making firearm-related inquiries that some
patients perceived as harassing and discriminatory. Strict scrutiny therefore applies to
the Act’s anti-discrimination provision.
The State claims that Reed does not compel the application of strict scrutiny in
this case because the Act regulates “professional speech,” which it claims is always
subject to a lesser degree of scrutiny when a professional counsels a client. State Br.
35-44. This argument is misguided.
The Supreme Court has not applied uniform rules to professional speech
depending on whom the professional happens to be addressing at a given moment.
Instead, it has applied different levels of scrutiny depending on the First Amendment
interests at stake. So, for example, a restriction on solicitation of clients by attorneys
was subjected to strict scrutiny in NAACP v. Button, 371 U.S. 415, 434, 438, 83 S. Ct.
328, 338, 341 (1963), because it was aimed at suppressing political expression and
activity, id. at 429, 83 S.Ct. at 336. On the other hand, restrictions on solicitation of
clients by attorneys have been subjected to intermediate scrutiny when the
solicitation’s purpose was simply to drum up business. See, e.g., Zauderer v. Office of
Disciplinary Counsel, 471 U.S. 626, 644, 105 S. Ct. 2265, 2278 (1985).
This case implicates First Amendment interests of a very high order. At stake
is patients’ right to receive truthful, empirically-based health and safety information
that reflects the consensus of the medical community. In the health care context,
“information can save lives.” Sorrell, 564 U.S. at 566, 131 S. Ct. at 2664. The
– 19 –
communications at issue here are therefore of greater First Amendment value than
commercial speech, which simply “disseminat[es] information as to who is producing
and selling what product, for what reason, and at what price,” Va. Bd. of Pharmacy, 425
U.S. at 765, 96 S. Ct. at 1827, and which receives intermediate scrutiny, see Central
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 566, 100
S. Ct. 2343, 2351 (1980). This speech should be fully protected.5
The additional reasons proffered by the State and its amici for providing lesser
protection are all flawed. First, even supposing that doctors’ speech rights are somehow
diminished because of their professional status, see State Br. 36, that would not mean
that patients’ First Amendment right to hear this information can be discounted. In
Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800 (1974), the Supreme Court
repudiated the idea that any reduced First Amendment protection afforded to a
speaker also negates the First Amendment rights of the speaker’s audience. The
Court “reject[ed] any attempt to justify censorship of inmate correspondence merely
by reference to certain assumptions about the legal status of prisoners.” Id. at 409, 94
S. Ct. at 1809. “Both parties to the correspondence have an interest in” their
5 It is therefore irrelevant that some lower courts have held that Reed does not
alter the level of scrutiny for content-based regulations of commercial speech. State
Br. 43-44. Even if these decisions are correct, this case does not involve
“commercial” speech; it involves speech of an altogether different, and more valuable,
nature.
– 20 –
communication, the Court held, and invalidated the regulations at issue. Id. at 408,
413-14, 94 S. Ct. at 1809, 1811-12.
Second, the First Amendment protections applicable here are not weakened
because patients are supposedly “vulnerable.” State Br. 48; see also Second
Amendment Foundation Br. 26-32. The Supreme Court has explicitly rejected the
argument that “anxi[ety]” about “whether doctors have their patients’ best interests at
heart” can justify a content-based limitation on speech. Sorrell, 564 U.S. at 576, 131 S.
Ct. at 2670. And even while recognizing that “[p]ersons who are attempting to enter
health care facilities—for any purpose—are often in particularly vulnerable physical
and emotional conditions,” Hill v. Colorado, 530 U.S. 703, 729, 120 S. Ct. 2480, 2496
(2000), the Supreme Court has subjected laws establishing “buffer zones” outside of
abortion clinics to careful First Amendment scrutiny and upheld them only where the
laws—unlike the Act—are content-neutral, id. at 719-25, 120 S. Ct. at 2491-94; see also
McCullen v. Coakely, 134 S. Ct. 2518, 2529-34 (2014) (finding “buffer zone” law
content-neutral but striking it down as insufficiently tailored); R.A.V., 505 U.S. at
394-95, 112 S. Ct. at 2549 (rejecting argument that content-based limitation on
fighting words is justified by need to “protect against the victimization of a person or
persons who are particularly vulnerable because of their membership in a group that
historically has been discriminated against”) (citation omitted).
Moreover, any supposed “power imbalance between patient and doctor,” State
Br. 49 (quoting Wollschlaeger v. Governor of the State of Florida, 814 F.3d 1159, 1197 (11th
– 21 –
Cir. 2015), reh’g en banc granted, opinion vacated (Feb. 3, 2016)), would cut against allowing
the State legislature to regulate the content of what doctors tell their patients.
Without medical training or public health expertise, patients are generally ill-equipped
to second-guess doctors’ communications. It is therefore essential that legislatures be
precluded from distorting the content of doctor-patient communications on
ideological grounds.
Third, because of the important listeners’ rights at stake, Casey, upon which the
State and amici rely, see State Br. 36, 38-39; NRA Br. 15-20; Second Amendment
Foundation Br. 6-7; Unified Sportsmen Br. 16-19, is not dispositive of the standard of
scrutiny applicable here. The Casey plurality did not specify what level of scrutiny it
applied to the informed consent provision at issue there. See 505 U.S. at 884, 112 S.
Ct. at 2825. But at any rate, Casey addressed a law requiring—rather than, as here,
prohibiting—the disclosure of “truthful, nonmisleading information” to patients. Id. at
882, 112 S. Ct. at 2823. The law in Casey therefore did not infringe patients’ right to
receive information. Just as the Court applied different levels of scrutiny in NAACP
v. Button and in Zauderer, the analysis and result in Casey do not dictate an identical
approach here. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501, 116 S. Ct.
1495, 1507 (1996) (op. of Stevens, J.) (explaining that a law that “requires the
disclosure of beneficial . . . information,” is less suspect under the First Amendment
than a law that “entirely prohibits the dissemination of truthful, nonmisleading . . .
– 22 –
messages,” and that the latter is therefore subject to more rigorous review than the
former).
For the foregoing reasons, strict scrutiny should be applied to the Act’s inquiry,
record-keeping, anti-discrimination, and anti-harassment provisions. At a minimum,
however, intermediate scrutiny should apply. Any lesser degree of scrutiny would
effectuate nothing short of a radical rewriting of the First Amendment, not to
mention the basic doctor-patient compact. If rational-basis scrutiny were applied,
sellers of products that might be the subject of future doctor-patient health
conversations would be well-advised to lobby for identical legislation, making
discussions of tobacco, alcohol, fast food, family planning, and so on, all subject to
the risk of reprisal. The cumulative effect would reduce doctors from trusted advisers
to mere merchants of medical services.
III. ALL FOUR PROVISIONS ARE UNCONSTITUTIONAL BECAUSE
THEY IMPROPERLY LIMIT THE SPEECH AVAILABLE TO
WILLING LISTENERS IN ORDER TO PROTECT A MINORITY
OF UNWILLING LISTENERS.
Under strict scrutiny, the State must establish that the inquiry, record-keeping,
anti-discrimination, and anti-harassment provisions of the Act “further[] a compelling
governmental interest and [are] narrowly tailored to that end.” Reed, 135 S. Ct. at
2231. “That is a demanding standard,” and “[i]t is rare that a regulation restricting
speech because of its content will ever be permissible.” Brown v. Entm’t Merchants
Ass’n, 564 U.S. 786, 799, 131 S. Ct. 2729, 2738 (2011) (citation omitted). The Act is
– 23 –
not such a rare bird. Moreover, even if intermediate scrutiny were to apply, the Act
would still be invalid—most obviously because it violates the First Amendment rule
that the government may not restrict speech in order to protect a minority of listeners
when that will prevent the public at large from receiving the speaker’s message.6
In order to satisfy intermediate scrutiny, the state must show that the Act
“directly advances” a “substantial” government interest, and is “not more extensive
than is necessary to serve that interest.” Central Hudson Gas & Elec. Corp., 447 U.S. at
566, 100 S. Ct. at 2351. As an initial matter, the State’s cited interests are
constitutionally suspect. The State argues, in essence, that it has a valid interest in
protecting citizens’ right to bear arms; and that citizens’ exercise of this right will be
deterred if doctors engage patients in conversations about firearms. State Br. 45-49.
One need not doubt the legitimacy, as a general matter, of the State’s interest in
furthering citizens’ Second Amendment rights to be skeptical of this argument. The
State assumes that gun owners will be able to exercise fully their right to bear arms
only if they are not engaged by medical professionals in discussions of firearm safety.
But this Court should “view as dubious any justification that is based on the benefits
of public ignorance.” Bates v. State Bar of Arizona, 433 U.S. 350, 375, 97 S. Ct. 2691,
2704 (1977); see also Va. Pharmacy Bd., 425 U.S. at 770, 96 S. Ct. at 1829 (“There is, of
6 Amicus here focuses on the Act’s curtailment of listeners’ rights, but the Act
fails intermediate scrutiny for the additional reasons laid out in Judge Wilson’s second
dissenting opinion. See Wollschlaeger v. Governor of Florida, 797 F.3d 859, 919-30 (11th
Cir. 2014) (Wilson, J., dissenting).
– 24 –
course, an alternative to this highly paternalistic approach. That alternative is to
assume that this information is not in itself harmful, that people will perceive their
own best interests if only they are well enough informed . . . .”); Whitney v. California,
274 U.S. 357, 377, 47 S. Ct. 641, 649 (1927) (Brandeis, J., concurring) (“If there be
time to expose through discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not enforced
silence.”).
But even if the State’s asserted interest in protecting gun-owning patients from
truthful information were presumed valid, the Act still would fail the final requirement
of intermediate scrutiny: that the law be “not more extensive than is necessary to
serve [the asserted government] interest.” Central Hudson, 447 U.S. at 566, 100 S. Ct.
at 2351. The Supreme Court has repeatedly made clear that a speech regulation fails
this tailoring requirement when it restricts the speech available to the general public in
order to protect the sensibilities of a minority of unwilling listeners.
In Martin v. City of Struthers, for example—one of the earliest cases to recognize
the First Amendment rights of listeners—the Court struck down a citywide ordinance
prohibiting door-to-door distribution of leaflets. The Court recognized that the
ordinance’s purpose was “the protection of the householders from annoyance,
including intrusion upon the hours of rest.” 319 U.S. at 144, 63 S. Ct. at 864.
Notwithstanding the validity of this interest, however, the Court held that the city
could not make the decision on behalf of all householders that they would receive no
– 25 –
leaflets, “whether particular citizens want that protection or not.” Id. at 143, 63 S. Ct.
at 863.
Since Martin, the Supreme Court has reaffirmed this basic principle again and
again. See, e.g., Reno v. ACLU, 521 U.S. 844, 874, 117 S. Ct. 2329, 2346 (1997)
(holding that the Communications Decency Act failed the First Amendment’s
tailoring requirement because it suppressed “a large amount of speech that adults have
a constitutional right to receive and to address to one another”); Bolger v. Youngs Drug
Prods. Corp., 463 U.S. 60, 74, 103 S. Ct. 2875, 2884 (1983) (“The level of discourse
reaching a mailbox simply cannot be limited to that which would be suitable for a
sandbox.”). Tellingly, in Lorillard Tobacco, 533 U.S. at 561, 121 S. Ct. at 2425, the
Court—applying intermediate scrutiny—found a ban on tobacco advertising aimed at
children to lack “a reasonable fit between the means” employed and the goal of
reducing juvenile tobacco use. “[A]dults have [an] interest in receiving truthful
information about tobacco products,” the Court found, and the law in question, “[i]n
some geographical areas, . . . would constitute nearly a complete ban on the
communication of truthful information about smokeless tobacco and cigars to adult
consumers.” Id. at 562, 564, 121 S. Ct. at 2425, 2426. It is impermissible to place
broad restrictions on speech that is valuable and informative to many members of the
community in order to protect a minority of listeners.
Again, this rule does not change because of the supposed vulnerability of the
minority of listeners. In Lorillard, the Court rejected the argument that the aim of
– 26 –
protecting children—an inherently vulnerable audience—from tobacco advertising
saved the overbroad law at issue there. Indeed, the Supreme Court has never upheld a
content-based regulation of speech on the theory that it protects a “captive” or
vulnerable audience, not even when the listener is targeted in the privacy of her own
home. See Frisby v. Schultz, 487 U.S. 474, 487-88, 108 S. Ct. 2495, 2504 (1988)
(upholding a law prohibiting picketing on residential streets only after finding it
content-neutral); see also supra Part II.C (discussing Hill v. Colorado and related
precedents). “[T]he Constitution does not permit government to decide which types
of otherwise protected speech are sufficiently offensive to require protection for the
unwilling listener or viewer.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 210, 95 S.
Ct. 2268, 2273 (1975).
These concerns are salient here because many patients welcome inquiries and
information about firearm safety from their doctors. In one study, 70% of gun
owners said “no” when asked if they were bothered by inquiries about gun storage
and safety by their doctors. Albright & Burge, Improving Firearm Storage Habits, at 44.
More generally, survey data show that citizens overwhelmingly favor safe gun storage
practices and strongly support laws requiring such practices. Everytown Poll Memo: Gun
Storage and Child Access Prevention, at 2-3 (June 23, 2014). Support for these measures is
almost as strong among gun owners as it is among members of the public at large. See
id. It follows that the Act chills the flow of information about safe gun storage to a
substantial number of listeners who, indeed, would very often welcome it.
– 27 –
It takes little imagination to think of less restrictive means of attaining the
Florida legislature’s ends. Most obviously, the legislature could have passed a law
requiring doctors to cease inquiries about and discussions of firearms when a patient
indicates that she does not want to engage in conversation on this topic. Time and
again, the Supreme Court has indicated that the proper way to protect unwilling
listeners is to allow them to choose not to hear the offending speech. In Martin, for
example, the Court explained that the proper course was to “leav[e] to each
householder the full right to decide whether he will receive strangers as visitors.” 319
U.S. at 147, 63 S. Ct. at 865. Similarly, in Reno, the Court held that rather than
penalizing content-providers for making available indecent material on the Internet,
an appropriate means to achieve the government’s goal of protecting children would
be to enable each household to control whether particular messages are received. 521
U.S. at 877, 117 S. Ct. at 2347.
The Act’s inquiry, record-keeping, anti-discrimination, and anti-harassment
provisions place sweeping, content-based restrictions on communications between
doctors and their patients in response to the complaints of a few isolated individuals.
The Supreme Court’s precedents establish that the Florida legislature’s response to
this perceived problem lacks the “reasonable fit between the means and the ends of
the regulatory scheme” that the First Amendment requires. These provisions are
therefore unconstitutional.
– 28 –
IV. THE ACT’S ANTI-HARASSMENT PROVISION IS
UNCONSTITUTIONALLY VAGUE.
The Act’s anti-harassment provision is also unconstitutionally vague. The
provision bans “unnecessarily harassing a patient about firearm ownership.” Fla. Stat.
Ann. § 790.338(6) (emphasis added). The qualifier “unnecessarily” is especially
insidious, because it leaves doctors to guess at where the line might be between
“[n]ecessarily harassing” a patient about firearm safety in the course of providing
sound medical advice, and “unnecessarily” raising the topic. A prudent doctor, in
order to avoid running afoul of this provision, will curtail conversations about firearm
safety with patients. “The vagueness of [a content-based regulation of speech] raises
special First Amendment concerns because of its obvious chilling effect on free
speech.” Reno, 521 U.S. at 871-72, 117 S. Ct. at 2344; see also Kolender v. Lawson, 461
U.S. 352, 358, 103 S. Ct. 1855, 1858-59 (1983) (holding that when a statute
“suppress[es] First Amendment liberties,” the concerns with adequate notice and
arbitrary enforcement that animate the constitutional prohibition on vague statutes
have particular force). The anti-harassment provision is therefore unconstitutional
under the Due Process Clause.
CONCLUSION
The Court should affirm the district court’s judgment and injunction.
– 29 –
Dated: April 27, 2016 Respectfully submitted,
/s/ Gregory A. Castanias
Gregory A. Castanias
Charlotte H. Taylor
JONES DAY
51 Louisiana Ave., N.W.
Washington, D.C. 20001
(202) 879-3939
Peter C. Canfield
JONES DAY
1420 Peachtree Street, N.E.
Suite 800
Atlanta, Georgia 30309
(404) 581-3939
J. Adam Skaggs
MOMS DEMAND ACTION
FOR GUN SENSE IN AMERICA
P.O. Box 4184
New York, NY 10163
(646) 324-8201
Counsel for Amicus Curiae
Moms Demand Action for
Gun Sense in America
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in
FRAP 29(d) and FRAP 32(a)(7)(B). This brief contains 6,999 words.
Dated: April 27, 2016 /s/ Gregory A. Castanias________
Counsel for Amicus Curiae
CERTIFICATE OF SERVICE
I hereby certify that, on April 27, 2016, the foregoing Brief of Amicus Curiae
was served via Electronic Case Filing (ECF) on all counsel of record as indicated
below, and that twenty paper copies were delivered to the Court.
Douglas H. Hallward-Driemeier, Esq.
Mariel Goetz, Esq.
Ropes & Gray LLP
700 12th Street, NW, Suite 900
Washington, D.C. 20005
Erin R. Macgowan, Esq.
Ropes & Gray LLP
800 Boylston Street
Boston, MA 02199-3600
Edward M. Mullins, Esq.
Astigarrage Davis Mullins & Grossman,
P.A.
701 Brickell Avenue, 16th Floor
Miami, FL 33131-2847
Jonathan E. Lowy, Esq.
Brady Center to Prevent Gun Violence
1225 Eye Street, NW, Suite 1100
Washington, D.C. 2005
Pam Bondi, Esq.
Allen C. Winsor, Esq.
Timothy Osterhaus, Esq.
Jason Vail, Esq.
Diane G. DeWolf, Esq.
Rachel E. Nordby, Esq.
Office of the Attorney General
PL01- The Capitol
Tallahassee, FL 32399-1050
/s/ Gregory A. Castanias
Gregory A. Castanias