Will a federal appeals court let stand its panel opinion approving a law that prohibits doctors from asking patients about guns, a law passed by the NRA-beholden Florida Legislature?
The 2-1 decision is the work of Judge Gerald Bard Tjoflat, 84, a Ford appointee with the most seniority of all federal appellate jurists in active service.
DR. BERND WOLLSCHLAEGER, ET AL., APPELLANTS, V. GOVERNOR STATE OF FLORIDA, ET AL., APPELLEES
Case no.: 12-14009
Date: July 25, 2014
Case type: Civil rights
Court: U.S. Court of Appeals for the Eleventh Circuit
Author of opinion: Judge Gerald Bard Tjoflat
Lawyers for petitioners: Augustine Ripa, BuckleySandler, Washington; Bruce S. Manheim Jr., WilmerHale, Washington; Daniel R. Vice, Legal Action Project, Washington; Dennis G. Kainen, Weisberg and Kainen, Miami; Douglas Hallward-Driemeier, Ropes & Gray, Washington; Hal M. Lucas, Lucas Savitz, Miami; Jonathan E. Lowy, Brady Center to Prevent Gun Violence, Washington; Julia Lewis, Ropes & Gray, Washington, and Edward M. Mullins, Astigarraga Davis, Miami
Lawyers for respondents: Attorney General Pamela Jo Bondi, Tallahassee; Jason Vail, Allen Norton & Blue, Tallahassee; Solicitor General (now First District Court of Appeal Judge) Timothy D. Osterhaus, Tallahassee; and Solicitor General Allen C. Winsor, Tallahassee
Panel: Majority: Circuit Judge Tjoflat and U.S. District Judge L. Scott Coogler, Northern District of Alabama; Dissent: Circuit Judge Charles Wilson
Originating court: Southern District of Florida
The July 25 opinion moved some observers to declare that in this matter of “Docs v. Glocks,” the casualties are public health and physicians’ right to speak freely.
The panel dissent by Judge Charles Wilson, 59, a Clinton appointee and former U.S. attorney in Tampa, has attracted far less attention beyond the walls of the U.S. Court of Appeals for the Eleventh Circuit in Atlanta.
But inside those chambers, the judges must be pondering the 95-page dissent, along with the 65-page majority opinion, as they anticipate a petition for rehearing. Such petitions are rarely granted.
Will this one get the nod?
“Chances are actually pretty good,” said Thomas Julin, a longtime First Amendment lawyer who represents many of the institutional friends of the court, like the Early Childhood Initiative Foundation, that filed briefs opposing the law.
Julin, with Hunton & Williams in Miami, noted that six of the court’s nine active members are Democratic appointees.
The rehearing vote “doesn’t always cut along political lines,” he added. “But it gives you some reason to believe that the en banc court may be much more sympathetic to Judge Wilson’s opinion than Judge Tjoflat’s.”
“Judge Wilson has a real passion for his point of view on this issue,” Julin said.
“When you have those kinds of diametrically opposed views exposed, that should get the attention of the full court.”
Wilson devotes his dissent to deconstructing and attacking the majority’s holding that the state, which regulates the practice of medicine, has a reasonable basis to demand doctors refrain from asking their patients confidentially about firearms.
Since the First Amendment has nothing to do with this regulation, the majority reasons, there’s no need to balance interests, subjecting the law to a level of scrutiny that’s at least moderate or intermediate, if not strict.
Not according to Wilson.
“Regardless of whether we agree with the message conveyed by doctors to patients about firearms, I think it is perfectly clear that doctors have a First Amendment right to convey that message,” he said.
“This act significantly infringes upon that right, and it is therefore subject, at the very least, to intermediate scrutiny. Subject to this level of scrutiny, the act cannot pass constitutional muster.”
Wilson accuses the majority of misrepresenting precedent, spreading confusion about the firearms law and “obfuscating” its own holding.
“Precedent … forbids creating exceptions to First Amendment review out of whole cloth,” Wilson wrote. “But creating a new category of speech immune from First Amendment review is exactly what the majority has done here.”
Although he mentions “the NRA” only once, the ubiquitous gun lobby looms in the background.
“The poor fit between what the Act actually does and the interests it purportedly serves belies Florida’s true purpose in passing this Act: silencing doctors’ disfavored message about firearm safety. This, the state cannot do.”
The ramifications of this new rule extend well beyond doctors and the subject of firearms, Wilson warns.
“Any law burdening or eliminating speech will avoid First Amendment scrutiny so long as the law only applies within the confines of a one-on-one professional relationship.”
The unasked question: Will the state gag lawyers next?
Last week Julin said he was preparing for the full court a summary of a U.S. Supreme Court opinion that he believes is on point. The panel didn’t consider the ruling because briefing had already ended when it was released June 20, 2013.
In Agency for International Development v. Alliance for Open Society International, the high court considered conditions that the federal government placed upon funding private programs to combat HIV-AIDS.
The funds must not be used “to promote or advocate the legalization or practice of prostitution.” Also, recipients must state that they oppose prostitution.
Seeking to remain neutral so as not to eliminate a group at great risk of getting HIV-AIDS, recipients mounted a First Amendment challenge to the requirement that they “pledge allegiance to the Government’s policy of eradicating prostitution.”
They won a 6-2 decision delivered by Chief Justice John Roberts. The pledge requirement violates the First Amendment by compelling, as a condition of federal funding, the affirmation of a belief that exceeds the scope of the government program, the court held.
Although the Florida doctors’ case is all about refraining from affirmations, Julin sees a connection. His focus is on the condition—don’t talk about guns—that the Legislature is implicitly adding to medical licensing.
Julin said, “The U.S. Supreme Court would probably see that sort of condition in the same light that it saw the condition on the HIV-AIDS organization, that it’s not sufficiently tailored to advance the purpose of the license: providing good medical care.”