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

January 14, 2016

This is the second amicus brief that Moms Demand Action for Gun Sense in America has filed in the 11th Circuit in this case. This brief again urges the full 11th Circuit to re-hear a case challenging a Florida law that prohibits doctors from speaking with their patients about firearm safety. Previously, a three-judge panel of the 11th Circuit upheld the law; this brief urges the full court to reconsider that decision.

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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
__________________________________________________________________
BRIEF AMICUS CURIAE OF MOMS DEMAND ACTION FOR GUN
SENSE IN AMERICA IN SUPPORT OF PETITION FOR REHEARING
EN BANC
__________________________________________________________________
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) 521-3939
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-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 Rule 26.1-1, in addition to the parties and entities identified in the
Certificate of Interested Persons in the Petition for Rehearing En Banc, Moms
Demand Action for Gun Sense in America submits that 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
MOMS DEMAND ACTION FOR GUN SENSE IN AMERICA,
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-iiJ.
Adam Skaggs
Dated: January 14, 2016 /s/ Gregory A. Castanias
Counsel for Amicus Curiae
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-iiiRULE
35 CERTIFICATION
I express a belief, based on a reasoned and studied professional judgment, that
this appeal involves a question of exceptional importance: whether the State of
Florida may, consistent with the First Amendment, forbid physicians from providing
truthful information to patients—and, concomitantly, whether it may forbid patients
from receiving such truthful information—regarding firearm safety and storage.
I further express a belief, based on a reasoned and studied professional
judgment, that this appeal merits en banc rehearing for the same reasons of importance
and decisional conflict set forth in the Petition for Rehearing En Banc at pages viii-ix.
Dated: January 14, 2016 Respectfully submitted,
/s/ Gregory A. Castanias
Gregory A. Castanias
JONES DAY
51 Louisiana Ave., N.W.
Washington, DC 20001-2113
(202) 879-3939
Counsel for Amicus Curiae
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TABLE OF CONTENTS
Page
-ivCERTIFICATE
OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT…………………………………………………………………….. i
RULE 35 CERTIFICATION ……………………………………………………………………………….. iii
TABLE OF AUTHORITIES ……………………………………………………………………………….. vi
INTEREST OF THE AMICUS CURIAE…………………………………………………………….. 1
STATEMENT OF THE ISSUES ………………………………………………………………………….. 1
STATEMENT OF THE FACTS…………………………………………………………………………… 1
ARGUMENT AND AUTHORITIES …………………………………………………………………… 1
I. THE ACT SUBJECTS DOCTORS TO DISCIPLINARY ACTION
FOR PROVIDING INFORMATION TO PATIENTS ON ONE
PARTICULAR SUBJECT—GUN OWNERSHIP AND SAFETY…………….. 3
II. THE DOCTOR-PATIENT RELATIONSHIP PROVIDES
PARENTS VITAL HEALTH AND SAFETY INFORMATION,
INCLUDING INFORMATION ABOUT FIREARM SAFETY………………… 4
A. Doctor-Patient Communications Play An Important Role In The
Marketplace Of Ideas…………………………………………………………………………. 4
B. Parents In Particular Reply On Their Doctors For Accurate
Health And Safety Information About Raising Their Children. ………….. 5
C. Studies Show That Doctor-Patient Communications About
Firearm Safety Lead To Better Firearm Storage Practices. ………………….. 6
III. THE PANEL MAJORITY’S OPINION ESTABLISHES THREE
ERRONEOUS PRECEDENTS THAT THREATEN PATIENTS’
FIRST AMENDMENT RIGHT TO RECEIVE INFORMATION……………. 7
A. The First Amendment Protects Individuals’ Right To Receive
Information, And This Right Does Not Disappear Within The
Context Of The Doctor-Patient Relationship…………………………………….. 8
B. The Act Is A Content-Based Restriction That Will Silence A
Significant Amount Of Protected Speech And, In Turn, Deprive
Many Patients Of Important Information About Firearm Safety………… 9
C. The Majority’s First Amendment Analysis Errs In Three
Important Ways That Undermine The Rights of Listeners……………….. 11
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-vCONCLUSION
…………………………………………………………………………………………………… 15
CERTIFICATE OF SERVICE……………………………………………………………………………. 16
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-viTABLE
OF AUTHORITIES
Page(s)
CASES
Burson v. Freeman,
504 U.S. 191 (1992) ………………………………………………………………………………………….. 14
Conant v. Walters,
309 F.3d 629 (9th Cir. 2002) ………………………………………………………………………………. 5
Dana’s R.R. Supply v. Florida,
807 F.3d 1235 (11th Cir. 2015) …………………………………………………………………………… 2
Erznoznik v. City of Jacksonville,
422 U.S. 205 (1975) ………………………………………………………………………………………….. 14
First Nat’l Bank of Boston v. Bellotti,
435 U.S. 765 (1978) ……………………………………………………………………………………………. 9
Frisby v. Schultz,
487 U.S. 474 (1988) ………………………………………………………………………………………….. 13
Hill v. Colorado,
530 U.S. 703 (2000) ………………………………………………………………………………………….. 14
King v. Governor of New Jersey,
767 F.3d 216 (3d Cir. 2014)………………………………………………………………………..5, 6, 11
Lorillard Tobacco Co. v. Reilly,
533 U.S. 525 (2001) ………………………………………………………………………………………. 8, 12
Martin v. City of Struthers,
319 U.S. 141 (1943) ………………………………………………………………………………….9, 12, 13
McCullen v. Coakley,
134 S. Ct. 2518 (2014)………………………………………………………………………………………. 14
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-viiPolice
Dep’t of Chicago v. Mosley,
408 U.S. 92 (1972) ……………………………………………………………………………………………… 9
Reno v. ACLU,
521 U.S. 844 (1997) …………………………………………………………………………………….. 12, 13
Rowan v. United States Post Office Dep’t,
397 U.S. 728 (1970) ………………………………………………………………………………………….. 13
Sorrell v. IMS Health Inc.,
131 S. Ct. 2653 (2011)………………………………………………………………………………9, 11, 14
STATUTES
Fla. Stat. § 790.338(1)………………………………………………………………………………………………. 3
Fla. Stat. § 790.338(2)………………………………………………………………………………………3, 9, 10
Fla. Stat. § 790.338(5)…………………………………………………………………………………………. 4, 10
Fla. Stat. § 790.338(6)…………………………………………………………………………………………. 4, 10
Fla. Stat. § 790.338(8)………………………………………………………………………………………………. 4
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) ………………………………………………………………………………………………………. 7, 15
American Academy of Pediatrics, How Pediatricians Can Advocate for
Children’s Safety in Their Communities, available at
http://bit.ly/1RHF63O……………………………………………………………………………………… 7
Shari L. Barkin et al., Is Office-Based Counseling About Media Use, Timeouts,
and Firearm Storage Effective? 122 Pediatrics 15 (2008)……………………………………………. 6
R.Butkus & A.Weissman, Internists’ Attitudes Toward Prevention of Firearm
Injury, 160 Annals of Internal Med. 821 (2014)……………………………………………………. 7
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-viiiTamera
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) ……………………… 7
Everytown Poll Memo: Gun Storage and Child Access Prevention, June 23, 2014,
available at http://every.tw/1UdgJt4………………………………………………………………….. 15
Fed. R. App. P. 29 …………………………………………………………………………………………………… 1
Fed. R. App. P. 35 ……………………………………………………………………………………………….. 2, 8
Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint
(2d ed. 2008)………………………………………………………………………………………………………. 4
Dahlia Lithwick & Sonja West, “The Absurd Logic Behind Florida’s
Docs v. Glocks Law,” Slate.com, Jan. 8, 2016……………………………………………………….. 8
Alexis Macias, When States Practice Medicine: Physician Gag Laws, Bull. of the
Am. Coll. of Surgeons, Feb. 1, 2012 …………………………………………………………………… 7
Moms Demand Action & Everytown for Gun Safety, Innocents Lost: A
Year of Unintentional Gun Deaths (2014) ………………………………………………………………… 7
Eugene Volokh, “Content-Based Restriction on Doctors’ Speech to
Patients About Guns Passes ‘Strict Scrutiny,’” The Washington Post,
Dec. 16, 2015……………………………………………………………………………………………………… 8
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INTEREST OF THE AMICUS CURIAE1
As set forth in the accompanying motion for leave to file this amicus brief,
Moms Demand Action for Gun Sense in America (“Moms Demand Action”) is a
grassroots movement of Americans fighting for public safety measures that respect
the Second Amendment and protect people from gun violence. A part of Everytown
for Gun Safety, Moms Demand Action promotes firearm safety nationwide and
believes that doctors—in particular, pediatricians—play an indispensable role in
promoting responsible gun ownership and storage because they are often parents’
primary source of information about children and gun safety.
STATEMENT OF THE ISSUES
Whether the State can, consistent with the First Amendment, place contentbased
restrictions on doctor-patient communications that restrict the flow of truthful
information from doctor to patient.
STATEMENT OF THE FACTS
Amicus adopts the statement of facts set forth in Judge Wilson’s second
dissenting opinion (Op. II 78-90) and adopted by petitioners here (Pet. 4).
ARGUMENT AND AUTHORITIES
“Viewpoint-based restrictions on speech are among governments’ most
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).
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insidious methods of eliminating unwelcome opinion.” Dana’s R.R. Supply v. Florida,
807 F.3d 1235, 1248 (11th Cir. 2015) (Tjoflat, J.). And yet the panel majority here,
purporting to apply strict scrutiny, upholds a law that does just that. As Petitioners
have shown, the “whole point” of Florida’s “Firearm Owners Privacy Act” (variously,
“FOPA” or “the Act”) is to “impos[e] a direct and substantial burden on disfavored
speech—by silencing it.” Id. The Act is an improper content-based restriction on
physicians’ speech that impedes doctors’ ability to counsel their patients in ways that
diverge from the State of Florida’s preferred political stance. Petitioners have further
shown how the fractured panel opinion, in upholding the Act, “directly conflicts with
established [Supreme Court] precedent,” Pet. 4, and “interfer[es] with open
communication between doctors and patients on critical issues of gun safety,” Pet. 5.
Amicus submits this brief to underscore the “question of exceptional
importance,” Fed. R. App. P. 35(a)(2), presented by this case: May a state restrict the
transmission of truthful, accurate, and literally lifesaving information within the
marketplace of ideas? By restricting doctors’ speech regarding gun safety, FOPA
infringes doctors’ First Amendment right to speak. Amicus submits this brief to
demonstrate that FOPA also infringes patients’ rights to hear that speech.
The doctor-patient relationship is a critical means of conveying accurate,
unbiased public health information in a marketplace crowded with behavioral
messages. Parents rely on their pediatricians for medically sound advice for raising
healthy, safe children. In particular, studies show that when doctors make routine
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inquiries about firearm ownership and follow up with brief, one-time counseling
about storage practices, families improve the safety of their gun storage practices.
Florida, however, has enacted a content-discriminatory law that will chill
doctor-patient communications about firearm safety. This law violates patients’ longrecognized
First Amendment right to receive information. In coming to the opposite
conclusion, the majority contravenes established Supreme Court precedent and
establishes a dangerous rule that will undermine the protection of speech. En banc
rehearing is necessary to correct the majority’s errors.
I. THE ACT SUBJECTS DOCTORS TO DISCIPLINARY ACTION FOR
PROVIDING INFORMATION TO PATIENTS ON ONE
PARTICULAR SUBJECT—GUN OWNERSHIP AND SAFETY.
Florida passed FOPA in 2011, in response to a handful of complaints to
legislators by patients who had been asked about firearm ownership by their
physicians. Op. III 6 & n.2. The Act places a number of sweeping restrictions on
doctor-patient communications and related activities. Most salient here, it provides
that doctors “should refrain from making a written inquiry or asking questions
concerning the ownership of a firearm or ammunition by the patient or by a family
member of the patient, or the presence of a firearm in a private home,” unless the
doctor “in good faith believes that this information is relevant to the patient’s medical
care or safety.” Fla. Stat. § 790.338(2). The Act also restricts information about
firearm ownership being entered into patients’ medical records, id. § 790.338(1), and
provides that doctors may not discriminate against or “unnecessarily harass” patients
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on the basis of firearm ownership, id. § 790.338(5)-(6). A violation of the Act subjects
a doctor to disciplinary action. Id. § 790.338(8).
II. THE DOCTOR-PATIENT RELATIONSHIP PROVIDES PARENTS
VITAL HEALTH AND SAFETY INFORMATION, INCLUDING
INFORMATION ABOUT FIREARM SAFETY.
The Act unconstitutionally burdens doctor-patient communications—which
for many parents are the sole reliable source for vital, accurate, research-based
information pertinent to their children’s health and safety.
A. Doctor-Patient Communications Play An Important Role In The
Marketplace Of Ideas.
Patients rely on their doctors for information and advice that will allow them to
make optimal decisions about medical treatment and their lifestyles. In a marketplace
of ideas saturated with commercial advertising and other messages aimed at
influencing behavior, there is a pressing need for accurate and unbiased health
information. To quote a leading 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: Power, Duty, Restraint 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.
Doctor-patient communications are often patients’ sole source of reliable
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health information: “[P]rofessionals have access to a body of specialized knowledge to
which laypersons have little or no exposure. . . . [T]his information . . . will often be
communicated to [citizens] 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).
This information is no less essential simply because it may at times provoke
patient discomfort; indeed, it could well be said that the most important information
that doctors dispense is the least welcome. Doctors frequently counsel patients that
they should lose weight, eat less, or exercise more, and often tell patients that habits
they find pleasurable—such as smoking, drinking excessive alcohol, or eating rich
foods—are unhealthy. They also must frequently ask questions that touch on
extremely private, sensitive subjects like sexual behavior and domestic abuse. But
doctors are guided in their actions by the medical community’s consensus about
appropriate care. Patients expect their doctors to tell them what is good for them,
whether or not the government has decided it might make them feel uncomfortable.
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 information
about how to raise safe and healthy children. Pediatricians inform new parents what
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sleeping practices minimize the risk of crib death; what foods babies should eat and
avoid; and how to “babyproof” the child’s home. As the children grow, these
conversations move to topics such as household safety—e.g., using gates at staircases
to prevent falls; swimming pool safety; proper storage of dangerous chemicals; and
using helmets for bicycle- or skateboard-riding. Storing firearms safely out of reach of
curious children is a logical and important part of this dialogue.
Indeed, before children begin attending school, parents have few or no other
reliable contacts with public health or medical experts who can bring health and safety
issues to their attention. To be sure, friends, relatives, and religious communities can
and do provide information and opinions about child-rearing. But doctors are
uniquely positioned to provide parents with accurate, empirically based information
about child health and safety. See King, 767 F.3d at 234. Even after children start
school, doctors remain an important source of such information.
C. Studies Show That Doctor-Patient Communications About
Firearm Safety Lead To Safer Firearm Storage Practices.
Several studies show that when doctors inquire about firearm ownership and
provide brief follow-up counseling to gun owners, patients are significantly more
likely to follow safe firearm storage practices. 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
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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 than families
that received no counseling.2 And research conducted by amicus showed that more
than two-thirds of fatal, unintentional shootings of children could be avoided if gun
owners stored their firearms responsibly. See Moms Demand Action & Everytown for
Gun Safety, Innocents Lost: A Year of Unintentional Gun Deaths (2014). Thus, the
American Academy of Pediatrics holds that inquiries about firearm ownership should
be part of routine pediatric care.3 Simply put, pediatricians’ information about firearm
safety—if parents are allowed to receive it—will save children’s lives.
III. THE PANEL MAJORITY’S OPINION ESTABLISHES THREE
ERRONEOUS PRECEDENTS THAT THREATEN PATIENTS’
FIRST AMENDMENT RIGHT TO RECEIVE INFORMATION.
The First Amendment protects the right to receive information, and this right
2 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 Distribution Program, 155 Archives of Pediatric &
Adolescent Med. 659, 663 (2001) (concluding that tailored physician counseling can
improve rate of safe firearm storage).
3 See American Academy of Pediatrics, How Pediatricians Can Advocate for
Children’s Safety in Their Communities, available at http://bit.ly/1RHF63O. The
overwhelming majority of the medical community agrees. An American Medical
Association resolution defends the right of doctors to discuss firearm safety with their
patients. See Alexis Macias, When States Practice Medicine: Physician Gag Laws, Bull. of the
Am. Coll. of Surgeons, Feb. 1, 2012. A 2013 survey found that 85% of internists
believed that firearm injury is a public health issue; two-thirds believed that physicians
should be able to counsel patients on gun safety. R.Butkus & A.Weissman, Internists’
Attitudes Toward Prevention of Firearm Injury, 160 Annals of Internal Med. 821 (2014).
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does not evaporate within the context of the doctor-patient relationship. Because the
Act will chill physician speech, and thus withhold firearm safety information from
patients who would prefer to receive it, it is unconstitutional. Failing to understand
these principles, the panel majority makes three crucial errors in its analysis, each of
which establishes a dangerous precedent that threatens listeners’ rights and
contravenes Supreme Court precedent. First, the majority establishes a “framework”
of constitutional interests relevant to the regulation of professional speech that
improperly excludes patients’ First Amendment right to receive information. Second,
the majority applies a weakened version of “strict” scrutiny that ignores the Supreme
Court’s teaching that the speech available to willing listeners may not be curtailed to
protect a minority of unwilling listeners. Third, the majority misapplies the Supreme
Court’s precedents when it relies on a “captive audience” theory to uphold the Act.
En banc rehearing is called for to correct these errors.4 See Fed. R. App. P. 35(b)(1)(A).
A. The First Amendment Protects Individuals’ Right To Receive
Information, And This Right Does Not Disappear Within The
Context Of The Doctor-Patient Relationship.
The First Amendment protects listeners’ right to receive information just as
much as speakers’ right to disseminate it. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S.
525, 565 (2001) (“[A] speech regulation cannot unduly impinge on . . . the adult
4 The panel opinion has already attracted criticism. See, e.g., Eugene Volokh,
“Content-Based Restriction on Doctors’ Speech to Patients About Guns Passes ‘Strict
Scrutiny,’” The Washington Post, Dec. 16, 2015; Dahlia Lithwick & Sonja West, “The
Absurd Logic Behind Florida’s Docs v. Glocks Law,” Slate.com, Jan. 8, 2016.
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listener’s opportunity to obtain information.”); First Nat’l Bank of Boston v. Bellotti, 435
U.S. 765, 783 (1978) (“the First Amendment goes beyond protection of … the selfexpression
of individuals to prohibit government from limiting the stock of
information from which members of the public may draw”); Martin v. City of Struthers,
319 U.S. 141, 143 (1943) (freedom of speech “embraces the right to distribute
literature and necessarily protects the right to receive it” (citation omitted)). This
established First Amendment principle applies to the doctor-patient relationship. As
shown above, doctors’ communications to patients are an important means of
disseminating valuable public health information. They are therefore especially worthy
of constitutional protection. Indeed, the free flow of information is uniquely
important “in the fields of medicine and public health, where information can save
lives.” Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2664 (2011).
B. The Act Is A Content-Based Restriction That Will Silence A
Significant Amount Of Protected Speech And, In Turn, Deprive
Many Patients Of Important Information About Firearm Safety.
The Act is a classic content-based restriction on doctor-patient
communications. Op. III 47. On its face, the Act distinguishes between inquiries and
questions concerning firearm ownership and inquiries and questions on all other
topics, and limits only speech pertaining to firearm ownership. See Fla. Stat.
§ 790.338(2). This is quintessential content discrimination. See Police Dep’t of Chicago v.
Mosley, 408 U.S. 92, 95 (1972) (“above all else, the First Amendment means that
government has no power to restrict expression because of its message, its ideas, its
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subject matter, or its content”).
As Judge Wilson’s second dissent explained in detail, the Act will silence or
significantly chill communications about “one topic and one topic only”—firearms—
between doctors and patients. Op. II 79. The Act bans written and oral inquiries
about firearm ownership. Fla. Stat. § 790.338(2). Although the Act goes on to provide
that such inquiries are permissible when “a health care practitioner . . . in good faith
believes that this information is relevant to the patient’s medical care or safety,” id.,
this will not eliminate the Act’s effect: The “good faith” determination can only be
made post hoc, and so cannot provide a clear safe harbor. In consequence, doctors will
take the safe, speech-restrictive course and refrain from routine inquiries or 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 of gun safety—will never
receive the counseling that their doctors would otherwise have provided.
Similarly, the legislative history shows that the Act’s ban on “unnecessar[y]
harass[ment],” Fla. Stat. § 790.338(6), seeks to minimize doctor-patient conversations
about firearm safety—the Act was ostensibly passed in response to a handful of
reports of patient discomfort with doctors’ inquiries about gun ownership. See Op. III
6 n.2. This in mind, doctors will reasonably fear that asking follow-up questions to an
initially non-responding patient would be ex post deemed “unnecessary harassment”
under the Act. A reasonably risk-averse physician will just avoid the topic entirely.
Finally, the anti-discrimination provision, Fla. Stat. § 790.338(5), is likely to have a
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similar effect. See Op. II 140-44 (Wilson, J., dissenting).
Together, these provisions mean that a substantial number of gun-owning
patients will not receive lifesaving information about safe firearm storage. The First
Amendment cannot tolerate this harm.
C. The Majority’s First Amendment Analysis Errs In Three
Important Ways That Undermine The Rights Of Listeners.
The majority justifies the Act’s suppression of speech by ignoring patients’ First
Amendment rights. Specifically, the majority’s analysis contradicts the Supreme
Court’s teachings about those rights in three important ways.
First, the majority contravenes Supreme Court precedent and the law of other
circuits by establishing a “framework” of constitutional interests for the evaluation of
regulations of professional speech that excludes patients’ interest in receiving
information during consultations with their doctors. Op. III 51. See Sorrell, 131 S. Ct.
at 2664; King, 767 F.3d at 234. The majority recognizes that when doctors and other
professionals speak to the public, “society’s interest in listening freely . . . come[s] to
the fore.” Op. III 51. But the majority contrasts this scenario with physician speech to
a patient “in furtherance of the practice of medicine.” Op. III 50. In this setting, the
majority holds, “two state interests” predominate: “regulation of the profession for
the protection of the public and regulation of the relationship for the protection of
the patient and the benefit of society.” Op. III 51. The majority conspicuously and
erroneously omits any mention of patients’ “interest in listening freely” to advice that
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public health experts deem medically necessary.
Second, the majority opinion contradicts Supreme Court authority and waters
down strict scrutiny when it concludes that Florida may prevent willing listeners from
receiving information in order to protect a minority of unwilling listeners. The majority
disregards the fact that the Supreme Court has repeatedly held that a law fails the First
Amendment’s tailoring requirement when it restricts the speech available to the
general public, including willing listeners, in order to protect the sensibilities of a
minority who might find the speech offensive. See, e.g., Martin, 319 U.S. at 143-44
(striking down ordinance prohibiting door-to-door distribution of leaflets despite
claimed justification of “the protection of the householders from annoyance,”
because it improperly “substitute[d] the judgment of the community for the judgment
of the individual householder”); Reno v. ACLU, 521 U.S. 844, 874 (1997)
(Communications Decency Act failed tailoring requirement because it suppressed “a
large amount of speech that adults have a constitutional right to receive and to
address to one another”); Lorillard Tobacco, 533 U.S. at 561-62, 564 (ban on tobacco
advertising aimed at children lacked “a reasonable fit between the means” employed
and the goal of reducing juvenile tobacco use, because “adults have [an] interest in
receiving truthful information about tobacco products,” but “[i]n some geographical
areas, [the law] would constitute nearly a complete ban on the communication of
truthful information about smokeless tobacco and cigars to adult consumers”).
As Petitioners note, Pet. 12-13, it takes little imagination to think of more
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narrowly tailored means of achieving the legislature’s ends—most simply, by requiring
doctors to cease inquiries about a particular topic when a patient indicates that she
does not want to discuss it. That would leave it up to the individual patient to decide
whether or not to receive firearm safety (or other) information, without blocking
willing patients from receiving it. See Martin, 319 U.S. at 147 (“leaving to each
householder the full right to decide whether he will receive strangers as visitors”);
Reno, 521 U.S. at 877 (instead of penalizing content-providers for making indecent
material available on the Internet, a less-speech-restrictive means of protecting
children would be to allow each household to control whether particular messages are
received). But the majority ignores the teaching of these cases in finding the Act
adequately tailored to survive strict scrutiny.
Third, the majority misapplies Supreme Court precedent when it relies on a
“captive audience” theory to buttress its conclusion that the Act—a content-based
regulation of speech—survives strict scrutiny. Op. III 72-76. The Supreme Court has
never upheld a content-based regulation of speech on the theory that it protects a
“captive 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 (1988) (upholding a law prohibiting
picketing on residential streets only after finding it content-neutral); Rowan v. United
States Post Office Dep’t, 397 U.S. 728, 735-40 (1970) (upholding a content-neutral law
allowing addressees to refuse delivery of mail). The Court’s general governing
principle is that “the Constitution does not permit government to decide which types
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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 (1975).5
This rule does not change because of a supposed “power imbalance” between
doctor and patient. Op. III 71. 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
(2000), the Supreme Court has upheld laws restricting speech in this context only where
the laws are content-neutral, id. at 719-25. See also McCullen v. Coakley, 134 S. Ct. 2518,
2529-34 (2014) (finding the “buffer zone” law in that case to be content-neutral but
striking it down as insufficiently tailored); Sorrell, 131 S. Ct. at 2670 (rejecting the
argument that “anxi[ety]” about “whether doctors have their patients’ best interests at
heart” can justify a content-based limitation on speech).
In sum, the majority’s First Amendment analysis upends the Supreme Court’s
precedents addressing listeners’ rights. It is simply impermissible to place contentbased
restrictions on speech in order to protect a minority of listeners. These First
Amendment concerns are highly salient here, because most patients would welcome
inquiries and information about firearm safety from their doctors. In one study, 70%
5 Burson v. Freeman, 504 U.S. 191 (1992), relied on by the majority, see Op. III 61,
77, made no reference to a “captive audience” theory. Under strict scrutiny, the
plurality upheld a ban on vote solicitation within 100 feet of polling stations as the
most narrowly drawn means of furthering the state’s compelling interest in combating
the centuries-old problems of voter fraud and intimidation. See 504 U.S. at 198-208.
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of gun owners said “no” when asked if they were bothered by inquiries about gun
storage and safety by their doctors. Albright & Burge at 44. More generally, data show
that gun owners and non-owners alike strongly favor responsible gun storage
practices. Everytown Poll Memo: Gun Storage and Child Access Prevention, June 23, 2014, at
2-3, available at http://every.tw/1UdgJt4. But Florida, ostensibly to stop “harassment”
of a few gun owners, has prescribed a law that will chill those discussions from taking
place with all patients, including the significant majority who would not object to—
indeed, would welcome—those discussions.
The majority’s approach to speech is nothing short of a radical rewriting of the
First Amendment, not to mention the basic compact between doctor and patient.
Under the majority’s approach, sellers of products that might be the subject of future
doctor-patient health conversations would be well-advised to lobby for identical “antiharassment”
legislation, making discussions of tobacco, alcohol, fast food, motorcycle
helmets, 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, afraid to tell their patients anything negative lest they risk charges of
“harassment.” En banc rehearing is necessary to correct the majority’s errors.
CONCLUSION
The Court should grant rehearing en banc, vacate the panel decision, and affirm
the judgment and injunction of the district court.
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Dated: January 14, 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) 521-3939
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
Case: 12-14009 Date Filed: 01/14/2016 Page: 25 of 26
CERTIFICATE OF SERVICE
I hereby certify that, on January 14, 2016, the foregoing Brief of Amicus Curiae
was served via Electronic Case Filing (ECF) on all counsel of record as indicated
below, and that fifteen paper copies were sent to the Clerk of the Court by overnight
courier.
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
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