Amicus Brief: Wollschlaeger v. Governor, State of Florida

August 28, 2015

Moms Demand Action for Gun Sense in America filed this amicus brief in the 11th Circuit, urging the full 11th Circuit to hear a case challenging a Florida law that prohibited doctors from speaking with their patients about firearm safety. In the brief, Moms Demand Action explained that, just as this doctor-gag-order law violates the First Amendment rights of doctors to share truthful information about gun safety with their patients, it also violates the First Amendment rights of their patients to hear that information.

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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
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
Case: 12-14009 Date Filed: 08/28/2015 Page: 1 of 25
-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,
J. Adam Skaggs
Dated: August 28, 2015 /s/ Gregory A. Castanias
Counsel for Amicus Curiae
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-iiRULE
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 vii-viii.
Dated: August 28, 2015 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
-iiiCERTIFICATE
OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT…………………………………………………………………….. i
RULE 35 CERTIFICATION ………………………………………………………………………………… ii
TABLE OF AUTHORITIES ………………………………………………………………………………… v
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 WHO PROVIDE
INFORMATION TO PATIENTS ON ONE PARTICULAR
SUBJECT—GUN OWNERSHIP AND SAFETY—TO
DISCIPLINARY ACTION. ………………………………………………………………………… 3
II. THE DOCTOR-PATIENT RELATIONSHIP IS A CRUCIAL
AVENUE FOR PROVIDING HEALTH AND SAFETY
INFORMATION TO PARENTS, INCLUDING INFORMATION
ABOUT FIREARM SAFETY……………………………………………………………………… 4
A. In General, 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. ………….. 6
C. Studies Show That Doctor-Patient Communications About
Firearm Safety Lead To Better Firearm Storage Practices. ………………….. 6
III. THE ACT VIOLATES PATIENTS’ FIRST AMENDMENT RIGHT
TO RECEIVE INFORMATION ABOUT FIREARM SAFETY……………….. 8
A. The Act Is A Content-Based Restriction That Will Chill A
Significant Amount Of Protected Speech And, In Turn, Deprive
Many Patients Of Important Information About Firearm Safety………… 8
B. The First Amendment Protects Individuals’ Right To Receive
Information, And This Right Does Not Disappear Within The
Context Of The Doctor-Patient Relationship…………………………………… 10
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-ivC.
The Act Violates The First Amendment Because It Prevents
Willing Listeners From Receiving Information In Order To
Protect A Minority of Unwilling Listeners………………………………………….. 12
CONCLUSION …………………………………………………………………………………………………… 15
CERTIFICATE OF SERVICE………………………………………………………………………………..
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-vTABLE
OF AUTHORITIES
Page(s)
CASES
Bd. of Educ. v. Pico ex rel. Pico,
457 U.S. 853 (1982) ………………………………………………………………………………………….. 10
Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York,
447 U.S. 557 (1980) …………………………………………………………………………………….. 12, 14
Conant v. Walters,
309 F.3d 629 (9th Cir. 2002) ………………………………………………………………………………. 5
Erznoznik v. City of Jacksonville,
422 U.S. 205 (1975) ………………………………………………………………………………………….. 12
Greater New Orleans Broad. Ass’n v. United States,
527 U.S. 173 (1999) ………………………………………………………………………………………….. 13
King v. Governor of the State of New Jersey,
767 F.3d 216 (3d Cir. 2014)…………………………………………………………………………….. 5, 6
Lorillard Tobacco Co. v. Reilly,
533 U.S. 525 (2001) …………………………………………………………………………………….. 10, 14
Martin v. City of Struthers,
319 U.S. 141 (1943) ………………………………………………………………………………..10, 14, 15
Police Dep’t of City of Chicago v. Mosley,
408 U.S. 92 (1972) ……………………………………………………………………………………………… 8
Procunier v. Martinez,
416 U.S. 396 (1974) ………………………………………………………………………………………….. 11
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015)…………………………………………………………………………3, 12, 14, 15
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-viReno
v. ACLU,
521 U.S. 844 (1997) …………………………………………………………………………………….. 14, 15
Sorrell v. IMS Health Inc.,
131 S. Ct. 2653 (2011)…………………………………………………………………………………. 11, 13
Stanley v. Georgia,
394 U.S. 557 (1969) ………………………………………………………………………………………….. 10
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748 (1976) ………………………………………………………………………………………….. 10
STATUTES
Fla. Stat. Ann. § 790.338(1)……………………………………………………………………………………… 4
Fla. Stat. Ann. § 790.338(2)………………………………………………………………………………. 4, 8, 9
Fla. Stat. Ann. § 790.338(4)……………………………………………………………………………………… 4
Fla. Stat. Ann. § 790.338(5)………………………………………………………………………………… 4, 10
Fla. Stat. Ann. § 790.338(6)………………………………………………………………………………….. 4, 9
Fla. Stat. Ann. § 790.338(8)……………………………………………………………………………………… 4
OTHER AUTHORITIES
Teresa Albright & Sandra Burge, Improving Firearm Storage Habits: Impact of
Brief Office Counseling by Family Physician, 16 J. Am. Bd. of Family
Practice 40 (2003) …………………………………………………………………………………………. 7, 14
American Academy of Pediatrics, Firearms Safety, available at
http://bit.ly/1hG8WYV ……………………………………………………………………………………. 7
Shari L. Barkin et al., Is Office-Based Counseling About Media Use, Timeouts,
and Firearm Storage Effective? 122 Pediatrics 15 (2008)……………………………………………. 7
R.Butkus & A.Weissman, Internists’ Attitudes Toward Prevention of Firearm
Injury, 160 Annals of Internal Medicine 821 (2014)……………………………………………… 8
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-viiTamera
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 Medicine 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(c)(5)…………………………………………………………………………………………… 1
Fed. R. App. P. 35(a)(2)…………………………………………………………………………………………… 2
Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint
(2d ed. 2008)………………………………………………………………………………………………………. 5
Alexis Macias, When States Practice Medicine: Physician Gag Laws, Bulletin 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
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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 American mothers 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 dissenting
opinion (Op. 78-90) and adopted by petitioners here (Pet. 4).
ARGUMENT AND AUTHORITIES
Petitioners have shown, persuasively, that Florida’s “Firearm Owners Privacy
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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Act” (variously, “FOPA” or “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, in detail, how the fractured panel opinion, in upholding the Act against
constitutional challenges, “breaks with settled Supreme Court precedent and silences
critical communication between doctors and patients.” Pet. 1.
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 literally lifesaving information within the marketplace for 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’ right 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
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. Doctor-patient
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communications play a crucial role in disseminating valuable information, thus
meriting First Amendment protection. The Supreme Court has repeatedly held that
speech by professionals receives First Amendment protection, and petitioners amply
demonstrate that the viewpoint-discriminatory approach of FOPA must satisfy strict
scrutiny. Pet. 6-9; Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). And, even in
cases where a speaker may be entitled to lesser First Amendment protection, such as
“intermediate scrutiny,” the regulation must still be narrowly tailored so that listeners’
First Amendment rights to receive that information are not abridged.
Moreover, even if intermediate scrutiny applied, the Act would fail it; the panel
majority’s intermediate-scrutiny analysis was insufficiently sensitive to both speakers’
and listeners’ rights. As the Supreme Court has repeatedly held, the government
cannot deprive the public of the opportunity to receive communications to protect
the sensibilities of a minority of listeners. En banc rehearing should be granted.
I. THE ACT SUBJECTS DOCTORS WHO PROVIDE INFORMATION
TO PATIENTS ON ONE PARTICULAR SUBJECT—GUN
OWNERSHIP AND SAFETY—TO DISCIPLINARY ACTION.
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. at 5-6 & 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
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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. Ann. § 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
on the basis of firearm ownership, id. § 790.338(5)-(6). (Doctors may still “choose
[their] patients.” Id. § 790.338(4).) A violation of the Act subjects a doctor to
disciplinary action. Id. § 790.338(8).
II. THE DOCTOR-PATIENT RELATIONSHIP IS A CRUCIAL
AVENUE FOR PROVIDING HEALTH AND SAFETY
INFORMATION TO PARENTS, INCLUDING INFORMATION
ABOUT FIREARM SAFETY.
The Act places an unconstitutional burden on doctor-patient
communications—a vital means of transmitting accurate, research-based information
about child health and safety to parents.
A. In General, 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 general. 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.”
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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
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 the State 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 such as sexual behavior and domestic abuse. But
doctors are guided in their actions by the medical community’s consensus about
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appropriate care. Patients listen to their doctors with the expectation that doctors will
tell them what is good for them, not just what patients want to hear.
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 a safe and healthy child. Pediatricians tell new parents what
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
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provide brief follow-up counseling to gun owners, patients are significantly more
likely to follow recommended firearm storage practices. One found that this
approach led to a 21.4% increase in safe storage practices among patients who
received 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 than families that received no counseling.2
And research
conducted by amicus determined 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

2 Teresa Albright & Sandra Burge, Improving Firearm Storage Habits: Impact of Brief
Office Counseling by Family Physician, 16 J. Am. Bd. of Family Practice 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 Medicine 659, 663 (2001) (concluding that tailored physician counseling
can improve rate of safe firearm storage).
3 See American Academy of Pediatrics, Firearms Safety, available at
http://bit.ly/1hG8WYV. The overwhelming majority of the medical community
agrees. An American Medical Association resolution defends the right of doctors to
discuss firearm safety issues and risks with their patients. See Alexis Macias, When
States Practice Medicine: Physician Gag Laws, Bulletin 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
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Simply put, pediatricians’ information about firearm safety—if they are allowed to
provide it to parents—will save children’s lives.
III. THE ACT VIOLATES PATIENTS’ FIRST AMENDMENT RIGHT
TO RECEIVE INFORMATION ABOUT FIREARM SAFETY.
The First Amendment protects the right to receive information, a right that
does not evaporate within the context of the doctor-patient relationship. The Act will
chill physicians’ speech, and thus prevent parents who would prefer to be informed
about firearm safety from receiving that information. It is therefore unconstitutional.
A. The Act Is A Content-Based Restriction That Will Chill 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. at 62 (majority); id. at 94 (dissent). It provides that doctors
“should refrain from making a written inquiry or asking questions concerning the
ownership of a firearm or ammunition . . . .” Fla. Stat. Ann. § 790.338(2). 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. This is quintessential content discrimination. See
Police Dep’t of City 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
(continued…)
patients on gun safety. R.Butkus & A.Weissman, Internists’ Attitudes Toward Prevention of
Firearm Injury, 160 Annals of Internal Medicine 821 (2014).
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its message, its ideas, its subject matter, or its content”).
As the panel dissent explained in detail, the Act will chill communications
about “one topic and one topic only”—firearms—between doctors and patients. Op.
at 79. The Act bans written and oral inquiries about firearm ownership. Fla. Stat.
Ann. § 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 chilling effect: The “good faith” determination can only be made
post hoc, and cannot provide a clear safe harbor for physician speech that a doctor can
rely upon ex ante. In consequence, doctors will take the safe course and simply refrain
from making routine inquiries on the topic and having follow-up conversations. 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 and
information that their doctors would otherwise have provided.
Similarly, the legislative history shows that the provision banning
“unnecessar[y] harass[ment],” Fla. Stat. Ann. § 790.338(6), seeks to minimize doctorpatient
conversations about firearm safety—the Act was ostensibly passed in response
to a handful of reports of patient discomfort with doctors’ inquiries about firearm
ownership. See Op. at 6 n.2. This in mind, doctors will quite 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
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will just avoid the topic entirely—the epitome of a “chilling effect.” Finally, the antidiscrimination
provision, Fla. Stat. Ann. § 790.338(5), is likely to have a similar chilling
effect. See Op. at 140-44 (Wilson, J., dissenting).
The Act will thus chill physician speech and prevent patients from receiving
information about firearm safety. The First Amendment cannot tolerate such harm.
B. 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
listener’s opportunity to obtain information.”); Bd. of Educ. v. Pico ex rel. Pico, 457 U.S.
853, 866-67 (1982) (plurality op.) (“the Constitution protects the right to receive
information and ideas” (citation omitted)); Virginia State Bd. of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) (“[T]he protection afforded [by
the First Amendment] is to the communication, to its source and to its recipients
both.”); Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“the Constitution protects the
right to receive information and ideas”); 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
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means of disseminating valuable public health information. They therefore merit
constitutional protection. Indeed, the free flow of information is particularly
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).
Whatever might be said about limitations on doctors’ free-speech rights, it would
not follow that patients’ First Amendment rights may be abridged with impunity.
Indeed, in Procunier v. Martinez, 416 U.S. 396 (1974), the Supreme Court specifically
rejected the idea that the diminished First Amendment protection afforded to an
speaker—there, an inmate—similarly negates the First Amendment rights of the
audience. “Both parties to the correspondence have an interest in” their communication.
Id. at 408 (emphasis added). The Court therefore “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. “This line of argument . . . fail[s] to
recognize that the First Amendment liberties of free citizens are implicated in
censorship of prisoner mail,” the Court stated, id., before invalidating the regulations
in question, see id. at 413-14. By the same token, concerns that some patients might
feel “uncomfortable” having firearm-safety discussions with their doctor cannot
justify abridging the right of patients willing—indeed, often eager—to receive that
truthful information. The Court’s general governing principle is that “the
Constitution does not permit government to decide which types of otherwise
protected speech are sufficiently offensive to require protection for the unwilling
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listener or viewer.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 210 (1975).
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 “antiharrassment”
legislation, making discussions of butter, tobacco, alcohol, fast-food,
sugar, motorcycle helmets, family planning, and so on, all subject to the risk of ex post
reprisals. 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.”
C. The Act Violates The First Amendment Because It Prevents
Willing Listeners From Receiving Information In Order To
Protect A Minority of Unwilling Listeners.
Where a state law “imposes content-based restrictions on speech, those
provisions can stand only if they survive strict scrutiny, ‘which requires the
Government to prove that the restriction furthers a compelling interest and is
narrowly tailored to achieve that interest.’” Reed, 135 S. Ct. at 2231. And even where
intermediate scrutiny is appropriate, a similar narrow tailoring is required: 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. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 566 (1980). FOPA is not
sufficiently tailored under either test—principally because it violates the longstanding
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rule that the government may not restrict speech to protect a minority of listeners
when the restriction will prevent the public from receiving the speaker’s message.
To start, the validity of the state’s justifications is doubtful. The legislature
relied on but a few claimed instances of patients’ perceived harassment by doctors
regarding firearm-ownership discussions. See Op. at 6 n.2. The Supreme Court has
disapproved of reliance on such anecdotal evidence as sufficient to satisfy even
intermediate scrutiny. See Sorrell, 131 S. Ct. at 2669 (“It is doubtful that concern for a
few physicians who may have felt coerced and harassed by pharmaceutical marketers
can sustain a broad content-based rule . . . .” (internal quotation marks omitted)).
Further, the state has not established that the Act actually promotes its asserted
interests. “This burden is not satisfied by mere speculation or conjecture; rather, a
governmental body seeking to sustain a restriction must demonstrate that the harms it
recites are real and that its restriction will in fact alleviate them to a material degree.”
Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 188 (1999). The Act
does little to further the State’s asserted interests of improving healthcare, protecting
firearm owners’ privacy rights, protecting Second Amendment rights, and preventing
discrimination. See Op. at 121-44 (Wilson, J., dissenting).
In any event, the Act is not sufficiently tailored to satisfy strict or even
intermediate scrutiny. As in Reed, where the town’s “Sign Code” barred large political
signs but left all other kinds of large signs unregulated, here, FOPA fails strict scrutiny
because it seeks to prevent patients from being “harassed” by gun-related speech, but
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leaves all other potentially “harassing” speech on other topics (diet, exercise, etc.)
untouched. 135 S. Ct. at 2227. Even for intermediate scrutiny, the law must be “no[]
more extensive than is necessary to serve [the asserted governmental] interest.”
Central Hudson, 447 U.S. at 566. And here, the Supreme Court’s decisions have
repeatedly held that a regulation of speech fails this tailoring requirement when it
restricts the speech available to the general public, including to willing listeners, in
order to protect the sensibilities of a minority who might find the speech offensive.4

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% 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 citizens overwhelmingly favor responsible gun storage
practices; indeed, both gun owners and non-owners strongly support laws requiring
4 See, e.g., Martin, 319 U.S. at 143-44 (striking down ordinance prohibiting doorto-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,” whereas “less restrictive alternatives would
be at least as effective in achieving the legitimate purpose that the statute was enacted
to serve”); 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”).
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such 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—or even welcome—those discussions.
It takes little imagination to think of more tailored means for 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 the topic.
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. Where speech bothers some listeners, the remedy is to allow the listeners to decide
whether to hear it. Martin, 319 U.S. at 147 (“leaving to each householder the full right
to decide whether he will receive strangers as visitors”); Reno v. ACLU, 521 U.S. 844,
877 (1997) (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).
In sum: Florida’s sweeping, content-based restriction on doctor-patient
communications lacks the narrow tailoring required by the First Amendment.
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: August 28, 2015 Respectfully submitted,
/s/ Gregory A. Castanias
Gregory A. Castanias
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: 08/28/2015 Page: 24 of 25
CERTIFICATE OF SERVICE
I hereby certify that, on August 28, 2015, 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
Case: 12-14009 Date Filed: 08/28/2015 Page: 25 of 25