Major First Amendment victory in Docs v. Glocks case

February 17, 2017 | By CALEB TROTTER

Yesterday, the 11th Circuit issued its en banc opinions in Wollschlaeger v. Gov. of the State of Florida, AKA the “Docs v. Glocks” case. As previously discussed here, here, and here, the case concerns whether Florida can prohibit doctors from asking their patients about their gun ownership or possession unless the question is directly relevant to a patient’s care. The issue is controversial because many doctors, especially pediatricians, often routinely ask patients (or their parents) questions about potential hazards in the home, be it swimming pools, poisons, or guns.  

The primary legal issue before the 11th Circuit was whether the Florida law restricted speech based on its content and the speaker, and if so, what level of scrutiny should be applied to determine if the restriction is unconstitutional. Last year, PLF filed an amicus brief in the case arguing that all content-based speech restrictions should receive strict scrutiny, regardless of whether the speech is made in a “professional” setting. The second issue in the case (which PLF does not take a position on) concerned the anti-discrimination provision of the law. The Court upheld that provision narrowly: a move that even the doctors were amenable to, as indicated during oral argument.

In the first of its majority opinions*, the Court easily determined that the challenged law restricted speech based on its content and speaker. Next, the Court declined to apply deferential review under the “professional speech” doctrine. As discussed at length in PLF’s brief, the professional speech doctrine is unprincipled and unsupported by a majority of the Supreme Court, so the 11th Circuit’s rejection of that standard in this case is most welcome. Finally, applying the U.S. Supreme Court’s 2011 decision in Sorrell v. IMS Health, the Court held that the law could not survive heightened scrutiny, so it declined to decide whether strict scrutiny was warranted. In short, the Court thoroughly dismantled the State’s justifications for the speech-restricting provisions, generally holding that the State offered insufficient actual evidence to justify restricting the speech of doctors.

There are also some additional things worth mentioning from the two concurring opinions. The first concurrence, written by Judge Wilson, would have applied strict scrutiny to strike down the speech-restricting portions of the law. This is particularly noteworthy because Judge Wilson was on the original panel that wrote three separate opinions before the case was taken en banc. Judge Wilson penned dissents to all three of those opinions, but with his concurrence yesterday he announced for the first time his conclusion that strict scrutiny is appropriate in light of the Supreme Court’s 2015 decision in Reed v. Town of Gilbert. Second, the concurrence written by Judge William Pryor and joined by Judge Hull, reiterates that this case does not create a clash between the First and Second Amendments. While “Docs v. Glocks” is certainly catchy, it never accurately described the legal and constitutional issues presented in the case.

Even though the 11th Circuit did not go on to apply strict scrutiny to content- and speaker-based speech restrictions in a professional context, this case is certainly a strong win for the vindication of the right to free speech protected under the First Amendment. Doctors and speech advocates should certainly celebrate that.

*With an unusual move, the Court issued two majority opinions. I consider the opinion of Judge Jordan to be the primary opinion, though, and in any event Judge Jordan’s opinion is the one that announces the bulk of the Court’s opinion on the First Amendment questions of interest to PLF.