## Facts

- Florida enacted the Firearm Owners’ Privacy Act (FOPA) to address complaints that some physicians questioned patients about firearm ownership and allegedly pressured or “harassed” them.
- FOPA imposed professional-discipline restrictions on health care practitioners in the physician–patient setting.
- The challenged provisions included: (1) limits on asking about firearms unless the practitioner believed in good faith the information was relevant to care or safety; (2) limits on recording firearm-ownership information unless believed relevant in good faith; (3) a ban on discriminating against patients based solely on firearm-ownership status; and (4) a ban on “harassing” or “unnecessarily harassing” patients about firearm ownership.
- Enforcement occurred through Florida’s medical discipline system, creating a credible risk of sanctions for violations.
- Physicians and medical organizations alleged the law deterred routine safety counseling and interfered with accepted medical practice regarding firearm-risk screening.
- The district court permanently enjoined enforcement of the challenged provisions as unconstitutional; a panel reversed; the Eleventh Circuit reheard the case en banc.

## Issues

1. Whether physicians and related organizations had standing and a ripe pre-enforcement First Amendment challenge based on a credible threat of professional discipline and self-censorship.
2. Whether FOPA’s inquiry, record-keeping, and anti-harassment provisions regulate protected speech and, if so, what level of First Amendment scrutiny applies.
3. Whether the inquiry, record-keeping, and anti-harassment provisions survive the applicable First Amendment scrutiny.
4. Whether the anti-discrimination provision is an unconstitutional burden on speech or a permissible regulation of professional conduct.
5. Whether unconstitutional provisions could be severed so the remainder of the statute could remain in force.

## Decision

- The Eleventh Circuit (en banc) held plaintiffs had standing and a justiciable, ripe pre-enforcement challenge based on a credible threat of enforcement and resulting self-censorship.
- The court held the inquiry, record-keeping, and anti-harassment provisions are speaker-based and content-based restrictions on physician speech, triggering heightened First Amendment scrutiny under the Sorrell framework.
- The court held the inquiry, record-keeping, and anti-harassment provisions failed heightened scrutiny and violated the First Amendment.
- The court upheld the anti-discrimination provision after construing it to regulate discriminatory conduct (e.g., refusing treatment or charging different rates based solely on firearm ownership), not protected speech.
- The court held the unconstitutional provisions were severable and remanded to narrow the permanent injunction accordingly.
- Disposition: affirmed in part, reversed in part, and remanded.

## Legal Principles

- A credible threat of professional discipline can establish injury in fact for standing when it leads to self-censorship in response to a speech-restrictive law.
- Content-based and speaker-based restrictions on professional communications are subject to heightened First Amendment scrutiny; the state must show the restriction materially advances substantial interests and is appropriately tailored.
- The First Amendment applies to physician–patient communications; labeling such communications “professional conduct” does not remove them from constitutional review when the law targets what may be said.
- A state may regulate professional conduct, including discriminatory treatment of patients, without violating the First Amendment when the regulation does not target protected expression.
- Under state severability principles, unconstitutional speech-restrictive provisions may be severed when the remainder can function independently and the legislature would prefer partial operation over invalidation of the entire law.

## Conclusion

The en banc Eleventh Circuit invalidated Florida’s limits on physicians’ firearm-related inquiries, record-keeping, and “harassment” as unconstitutional content-based restrictions on protected physician speech, but allowed the statute’s anti-discrimination rule to stand as a regulation of discriminatory conduct, severing the invalid provisions and directing a narrower injunction.


Wollschlaeger v. Governor, State of Fla., 848 F.3d 1293 (11th Cir. 2017) (en banc)