July 21, 2016

Oral argument in "Docs v. Glocks" case

By Caleb R. Trotter Attorney

Last month, an en banc Eleventh Circuit heard oral arguments inphysician Wollschlaeger v. Governor of the State of Florida (popularly known as Docs v. Glocks). The case concerns whether a Florida law that prohibits doctors from asking their patients questions about gun possession unless the question is directly relevant to the patient’s care violates doctors’ free speech rights under the First Amendment. As we previously discussed herehere, and here, PLF filed a brief in support of the doctors arguing the law violates the First Amendment. Because the Eleventh Circuit does not make oral argument recordings available online, I only recently received a recording on CD. 

At the outset of oral argument, counsel for Florida, Rachel Nordby, admitted that portions of the law were never intended to be enforced, and that doctors should consider the strong language about not asking their patients about guns to be merely advisory. The Court did not appear to be inclined to accept that argument. On the merits, Ms. Nordby continued to insist that the law regulates only conduct—not speech—but questioning by the Court quickly turned to a discussion of how the law has major problems passing First Amendment scrutiny.

As far as the doctors’ arguments, the Court seemed most concerned with the provision of the law prohibiting discrimination by a doctor against a patient based solely upon the patient’s exercise of their right to own and possess firearms—a situation that according to the record, has not happened. Counsel for the doctors, Douglas Hallward-Driemeier, did not dispute that a decision by the court striking down all provisions except the anti-discrimination provision would be acceptable. The remainder of the questions fleshed out the impact of the remaining provisions on constitutionally protected speech, and the tone of the discussion was mostly favorable to the doctors’ and PLF’s argument that the law violates the First Amendment.

For example, a number of questions were concerned with the possibility of the law to chill speech. One judge pointed out, and Mr. Hallward-Driemeier elaborated, that the University of Miami’s amicus brief notes that it already instructs its doctors to refrain from asking patients any questions related to firearm possession or ownership as a result of the law. Another line of questioning focused on whether Florida could prohibit doctors from asking patients about guns, but not prohibit doctors from counseling patients against undergoing an abortion or asking about religion. The colloquy revealed that there is no constitutional difference between the questions, and laws prohibiting any of those questions would require strict scrutiny because they are content-based.

In a rather interesting exchange during Florida’s rebuttal, the Court pointed out that Florida failed to brief whether the discrimination provisions were severable, and Florida admitted it wasn’t sure if any provision of the law was severable. In any event, Florida requested that if the Court struck the provisions targeting speech, then it should keep the provisions targeting discrimination.

More importantly, the Court challenged Florida’s purported compelling interest under strict scrutiny. Counsel for Florida stated that patient privacy is the primary interest. But this law has routinely been portrayed as necessary to protect patients’ Second Amendment rights in the face of doctors potentially persuading patients to get rid of their guns. So while the media enjoys the rhyme of “Docs v. Glocks,” the Court understands that this case is about First Amendment rights, not Second Amendment rights. And the general tenor of the argument suggests that the Court may be favorably disposed toward those First Amendment rights.

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