DR. BERND WOLLSCHLAEGER et al., Plaintiffs/Appellees,
GOVERNOR, STATE OF FLORIDA et al., Defendants/Appellants.
from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:11-cv-22026-MGC
ED CARNES, Chief Circuit Judge, and TJOFLAT, HULL, MARCUS,
WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE
CARNES, and JILL PRYOR, Circuit Judges.
JORDAN, Circuit Judge: [*]
Despite its majestic brevity-or maybe because of it-the
freedom of speech clause of the First Amendment sometimes
proves difficult to apply. See, e.g., Burt Neuborne,
Madison's Music: On Reading the First Amendment 5 (2015)
("Reading the First Amendment isn't easy.");
Saxe v. State College Area Sch. Dist., 240 F.3d 200,
218 (3d Cir. 2001) (Rendell, J., concurring) ("[T]here
are no easy ways in the complex area of First Amendment
jurisprudence."). Yet certain First Amendment principles
can be applied with reasonable consistency, and one of them
is that, subject to limited exceptions, "[c]ontent-based
regulations [of speech] are presumptively invalid."
R.A.V. v. City of St. Paul, 505 U.S. 377, 382
particular principle looms large in this case, which concerns
certain provisions of Florida's Firearms Owners'
Privacy Act, Chapter 2011-112, Laws of Florida (codified at
Fla. Stat. §§ 790.338, 456.072, 395.1055, &
381.026). And that is because some of FOPA's provisions
regulate speech on the basis of content, restricting (and
providing disciplinary sanctions for) speech by doctors and
medical professionals on the subject of firearm ownership.
after FOPA was enacted in 2011, a number of doctors and
medical organizations filed suit in federal court against
various Florida officials, challenging some of the Act's
provisions as unconstitutional. Ruling on cross-motions for
summary judgment, the district court held that FOPA's
record- keeping, inquiry, anti-discrimination, and
anti-harassment provisions violated the First and Fourteenth
Amendments, and permanently enjoined their enforcement.
See Wollschlaeger v. Farmer, 880 F.Supp.2d 1251
(S.D. Fla. 2012) (Wollschlaeger I). The state
officials appealed, and a divided panel of this court issued
three opinions-each using a different First Amendment
standard of review-upholding the challenged provisions of
FOPA. See Wollschlaeger v. Governor of Fla., 760
F.3d 1195 (11th Cir. 2014) (Wollschlaeger II);
Wollschlaeger v. Governor of Fla., 797 F.3d 859
(11th Cir. 2015) (Wollschlaeger III);
Wollschlaeger v. Governor of Fla., 814 F.3d 1159
(11th Cir. 2015) (Wollschlaeger IV). We voted to
rehear the case en banc and heard oral argument in June of
plenary review, see ACLU of Fla., Inc. v. Miami-Dade
County Sch. Bd., 557 F.3d 1177, 1206 (11th Cir. 2009),
and applying heightened scrutiny as articulated in
Sorrell v. IMS Health, Inc., 564 U.S. 552, 563-67,
571-72 (2011), we agree with the district court that
FOPA's content-based restrictions-the record-keeping,
inquiry, and anti-harassment provisions-violate the First
Amendment as it applies to the states. See U.S.
Const. amend. I ("Congress shall make no law . . .
abridging the freedom of speech[.]"); Stromberg v.
California, 283 U.S. 359, 368 (1931) ("[T]he
conception of liberty under the due process clause of the
Fourteenth Amendment embraces the right of free
speech."). And because these three provisions do not
survive heightened scrutiny under Sorrell, we need
not address whether strict scrutiny should apply to them. We
also conclude, this time contrary to the district court, that
FOPA's anti-discrimination provision-as construed to
apply to certain conduct by doctors and medical
professionals-is not unconstitutional. Finally, we concur
with the district court's assessment that the
unconstitutional provisions of FOPA can be severed from the
rest of the Act.
of their medical practices, some doctors routinely ask
patients about various potential health and safety risks,
including household chemicals, drugs, alcohol, tobacco,
swimming pools, and firearms. See Joint Statement of
Undisputed Facts, D.E. 87, at ¶ 18. A number of leading
medical organizations, and some of their members, believe
that unsecured firearms "in the home increase risks of
injury, especially for minors and those suffering from
depression or dementia." Id. at ¶ 20.
effort to prevent and reduce firearm-related deaths and
injuries, particularly to children, the American Medical
Association "encourages its members to inquire as to the
presence of household firearms as a part of childproofing the
home and to educate patients to the dangers of firearms to
children." Id. at ¶ 4. Health Policy
H-145.990, enacted by the AMA in 1989, "supports
increasing efforts to reduce pediatric firearm morbidity and
mortality by encouraging its members to (a) inquire as to the
presence of household firearms as a part of childproofing the
home; (b) educate patients to the dangers of firearms to
children; (c) encourage patients to educate their children
and neighbors as to the dangers of firearms; and (d)
routinely remind patients to obtain firearm safety locks, to
store firearms under lock and key, and to store ammunition
separately from firearms[.]"
American Academy of Pediatrics and the American Academy of
Family Physicians-as well as their Florida chapters-follow a
similar approach. They "recommend that pediatricians
incorporate questions about firearms into the patient history
process and . . . have policies stating that firearm safety
education to patients is a necessity." Joint Statement
of Undisputed Facts, D.E. 87, at ¶ 16.
2011, the Florida Legislature learned that a pediatrician in
Ocala had reportedly told a mother that she would have to
find a new physician for her child due to her refusal to
disclose information about firearm ownership in the family
home. The pediatrician explained that he asked all of his
patients the same questions "in an effort to provide
safety advice in the event there was a firearm in the
home." Id. at ¶ 3. He also said that he
asked other similar questions, such as whether there was a
pool in the home, to give safety advice to parents. The
mother felt that the question "invaded her privacy,
" but the record is silent as to whether she ultimately
answered the questions posed to her about firearms.
Florida Legislature also learned, anecdotally, about five
other incidents in which patients complained that doctors and
medical professionals had asked unwelcome questions or made
purportedly improper comments regarding their ownership of
firearms. A state representative said that his daughter's
pediatrician inquired if he owned a firearm, and then asked
him to remove the firearm from the home. Id. at
¶ 5. An email described how a mother "was separated
from her children while medical personnel . . .
interrogated" them about firearm ownership and put
information about such ownership in their medical records.
Id. at ¶ 6. One doctor refused to treat a child
because he wanted to know if there were firearms in the home.
Id. at ¶ 8. A patient, according to a state
senator, was told that disclosing firearm ownership was a
Medicaid requirement. Id. at ¶ 9. And another
patient was informed that Medicaid does not pay for care if
patients refuse to answer firearm-ownership questions.
Id. at ¶ 10.
representative of the National Rifle Association reported
that a child would not be examined if the parent refused to
answer questions about firearms in the home. That same
representative testified at a subcommittee hearing that
"[q]uestioning patients about gun ownership to satisfy a
political agenda . . . needs to stop." Id.
on these six anecdotes, the Florida Legislature enacted FOPA,
which did several things. First, the Act created Fla. Stat.
§ 790.338, entitled "Medical privacy concerning
firearms; prohibitions; penalties; exceptions." Second,
the Act added language to Fla. Stat. § 456.072 to
provide disciplinary measures for violations of its
provisions. Third, the Act amended Fla. Stat. § 381.026
(the Florida Patient's Bill of Rights and
four FOPA provisions at issue here, all contained in §
790.338, are the record-keeping, inquiry,
anti-discrimination, and anti-harassment provisions. The
record-keeping provision, § 790.338(1), states that a
doctor or medical professional "may not intentionally
enter any disclosed information concerning firearm ownership
into [a] patient's medical record" if he or she
"knows that such information is not relevant to the
patient's medical care or safety, or the safety of
others." The inquiry provision, § 790.338(2),
states that a doctor or medical professional "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 member of the patient, or the presence
of a firearm in a private home" unless he or she in
"good faith believes that this information is relevant
to the patient's medical care or safety, or the safety of
others[.]" The anti-discrimination provision, §
790.338(5), states that a doctor or medical professional
"may not discriminate against a patient based
solely" on the patient's ownership and possession of
a firearm. The anti-harassment provision, § 790.338(6),
states that a doctor or medical professional "should
refrain from unnecessarily harassing a patient about firearm
ownership during an examination."
its use of a relevancy standard, FOPA's record-keeping
and inquiry provisions prevent doctors and medical
professionals from asking all patients, or
all patients with children, whether they own
firearms or have firearms in their homes, or from recording
answers to such questions. In the panel's view, such
inquiries (and record-keeping) are appropriate only if the
doctor or medical professional has "some particularized
information about the individual patient, for example, that
the patient is suicidal or has violent tendencies[.]"
Wollschlaeger IV, 814 F.3d at 1179 (record-keeping
provision). See also id. at 1180 (inquiry
provision). So a doctor or medical professional violates FOPA
if he or she gives all new patients an intake questionnaire
which asks about firearms in the home.
provides that violations of the record-keeping and inquiry
provisions, among others, "constitute grounds for
disciplinary action" by Florida's Board of Medicine.
See § 790.338(8). Another Florida statute, as
amended by FOPA, states that "violating any of
the provisions" of FOPA, as set forth in § 790.338,
"shall constitute grounds for which . . . disciplinary
actions . . . may be taken." See §
456.072(1)(nn) (emphasis added).
FOPA violations are punishable by a fine of up to $10, 000
per offense, a letter of reprimand, probation, suspension,
compulsory remedial education, or permanent license
revocation. See § 456.072(2)(a)-(j); Joint
Statement of Undisputed Facts, D.E. 87, at ¶ 11. In
2014, after the district court's ruling, the Board of
Medicine issued regulations that characterize transgressions
of FOPA as minor administrative violations. See Fla.
Adm. Code § 64B13-15.005(1)(1). Two years later, in
2016, the Board promulgated regulations that provide
mandatory penalties for first and second violations of FOPA.
For a first violation of FOPA, the Board "shall
impose a penalty of reprimand and a fine of $250, "
and for a second violation it "shall impose a
penalty of reprimand up to suspension, require continuing
education, and a fine of $1, 000." Fla. Adm. Code §
64B18-14.002(61) (emphasis added).
state officials argue that we lack subject-matter
jurisdiction because two of Article III's justiciability
requirements-standing and ripeness-are absent. See
Appellants' En Banc Br. at 17-30. Like the district
court, see Wollschlaeger I, 880 F.Supp.2d at
1257-61, and the panel, see Wollschlaeger IV, 814
F.3d at 1172-77, we disagree.
have standing under Article III, a plaintiff "must have
suffered or be imminently threatened with a concrete and
particularized 'injury in fact' that is fairly
traceable to the challenged action of the defendant and
likely to be redressed by a favorable judicial
decision." Lexmark Int'l, Inc. v. Static Control
Components, Inc., 134 S.Ct. 1377, 1386 (2014).
"Proximate causation, " however, "is not a
requirement of Article III standing[.]" Id. at
which like standing originates from Article III, is a
"justiciability doctrine designed 'to prevent the
courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements[.]'"
Nat'l Park Hospitality Ass'n v. Dep't of
Interior, 538 U.S. 803, 807 (2003) (citation omitted).
In assessing whether a dispute is concrete enough to be ripe,
we "evaluate (1) the fitness of the issues for judicial
decision and (2) the hardship to the parties of withholding
court consideration." Id. at 808.
one of those cases where "the Article III standing and
ripeness issues . . . 'boil down to the same
question.'" Susan B. Anthony List v.
Driehaus, 134 S.Ct. 2334, 2341 n.5 (2014) (citation
omitted). And that question is whether the doctors who filed
suit, in this pre-enforcement posture, are threatened with
injury fairly traceable to the challenged provisions of
FOPA-the record-keeping, inquiry, anti-discrimination, and
anti-harassment provisions-such that there is a sufficient
hardship to them if we withhold consideration until there is
enforcement action. See MedImmune, Inc. v. Genentech,
Inc., 549 U.S. 118, 128 n.8 (2007); Cheffer v.
Reno, 55 F.3d 1517, 1524 (11th Cir. 1995).
an individual is subject to [the threatened enforcement of a
law], an actual arrest, prosecution, or other enforcement
action is not a prerequisite to challenging the law."
Driehaus, 134 S.Ct. at 2342 (citing other Supreme
Court cases as examples). A person "c[an] bring a
pre-enforcement suit when he 'has alleged an intention to
engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and
there exists a credible threat of prosecution[.]'"
Id. (citation omitted). See also ACLU v. The
Florida Bar, 999 F.2d 1486, 1494 & n.13 (11th Cir.
1993) (explaining that a plaintiff must have an objectively
reasonable belief about the likelihood of disciplinary
undisputed that the individual plaintiffs, as doctors, wish
to say and do what they believe FOPA prevents them from
saying and doing. They filed affidavits in the district court
explaining that they routinely ask all patients (or their
parents) about firearm ownership in order to assess safety
risks, and some believe that "information about firearm
safety is always relevant to a patient's preventive
care." Wollschlaeger I, 880 F.Supp.2d at 1257.
Due to the challenged provisions of FOPA, and in order to
avoid discipline by the Board of Medicine, these doctors are
engaged in self-censorship. Against their professional
judgment, they are no longer asking patients questions
related to firearm ownership, no longer using questionnaires
with such questions, and/or no longer maintaining written
records of consultations with patients about firearms.
See Joint Statement of Undisputed Facts, D.E. 87, at
¶¶ 24-26, 32-39; Wollschlaeger I, 880
F.Supp.2d at 1257-58 (citing some of the affidavits).
the "alleged danger" of legislation is "one of
self-censorship, " harm "can be realized even
without an actual prosecution." Virginia v. Am.
Booksellers Ass'n, Inc., 484 U.S. 383, 393 (1988).
Given the undisputed facts presented to the district court,
the doctors have established that, but for FOPA, they would
engage in speech arguably protected by the First Amendment.
As a result, they have satisfied the first prong of the
Driehaus standard. See Int'l Soc'y for
Krishna Consciousness of Atlanta v. Evans, 601 F.2d 809,
821 (5th Cir. 1979) ("To insist that a person must break
the law in order to test its constitutionality is to risk
punishing him for conduct which he may have honestly thought
was constitutionally protected.").
challenged FOPA provisions target speech and conduct by
doctors and medical professionals, and violations of those
provisions can result in disciplinary sanctions by the Board
of Medicine. For the reasons that follow, the doctors who
filed suit have shown a credible threat of prosecution, a
standard which we have described as "quite
forgiving." Wilson v. State Bar of Ga., 132
F.3d 1422, 1428 (11th Cir. 1998) (citation omitted).
FOPA was challenged soon after it was enacted, and Florida
has since vigorously defended the Act in court. As a result,
"an intent to enforce [the challenged provisions] may be
inferred." Harrell v. The Florida Bar, 608 F.3d
1241, 1257 (11th Cir. 2010).
although the state officials insist that one of the
provisions of FOPA-the anti-harassment provision-merely
contains recommendations (because it uses the words
"should refrain"), the same cannot be said for the
record-keeping ("may not"), inquiry ("shall .
. . refrain"), and anti-discrimination ("may
not") provisions. More fundamentally, the argument
ignores § 456.072(1)(nn), which states (emphasis ours)
that "violating any of the provisions" of
§ 790.338-i.e., even the so-called suggestive
ones-"shall constitute grounds for which . . .
disciplinary actions . . . may be taken." See
also § 790.338(8) (providing that violations of
subsections (1)-(4) "constitute grounds for disciplinary
action"). Indeed, the Board of Medicine's recent
regulations provide that certain disciplinary sanctions
"shall" be imposed for violations of FOPA,
see Fla. Adm. Code § 64B18-14.002(61), and that
is enough to show a credible threat of enforcement. See
Holder v. Humanitarian Law Project, 561 U.S. 1, 15-16
as the panel correctly explained, "[l]aws that provide
for disciplinary action in case of violation-such as
[FOPA]-should generally not be interpreted as hortatory,
" Wollschlaeger IV, 814 F.3d at 1176, even if
they do not contain prohibitory words. See also Powhatan
Steamboat Co. v. Appomattox R.R. Co., 65 U.S. (24 How.)
247, 252 (1860) ("[W]here [a] statute inflicts a penalty
for doing an act, although the act itself is not expressly
prohibited, yet to do the act is unlawful, because it cannot
be supposed that the Legislature intended that a penalty
should be inflicted for a lawful act."). Notably,
Florida law is in accord with this principle: "[A]
penalty implies a prohibition, though there are no
prohibitory words in the statute." Bryan's Heirs
v. Dennis, 4 Fla. 445, 455 (Fla. 1852) (emphasis in
we are not persuaded by the state officials' reliance on
a July 18, 2011, letter from the Board of Medicine, which
purportedly "clarif[ied]" that FOPA "does not
prohibit the asking of . . . questions [about gun ownership]
but rather recommends that health care providers and
facilities should refrain from asking them." Joint
Statement of Undisputed Facts, D.E. 87, at ¶ 14. For
starters, the Board has not engaged in any formal (i.e.,
binding) rulemaking interpreting the substantive provisions
of FOPA, so the July 18 letter does not offer much solace to
doctors and medical professionals who have to ascertain their
meaning. Nor has the Board issued a declaratory statement
dealing with FOPA's application to a particular
doctor's unique set of circumstances, as it is allowed to
do under Florida law. See Fla. Stat. § 120.565;
Fla. Dep't of Business & Prof'l Regulation v.
Investment Corp. of Palm Beach, 747 So.2d 374, 385 (Fla.
addition, and significantly, the July 18 letter-written after
this action was filed-contradicts earlier positions taken by
the Board. For example, on the very day that FOPA was signed
into law, the Rules/Legislative Committee of the Board
determined, "[a]fter discussion, " that a
"violation of [FOPA] falls under a failure to comply
with a legal obligation and the current disciplinary
guidelines for this violation would apply." Joint
Statement of Undisputed Facts, D.E. 87, at ¶ 12. And on
June 14, 2011, the Board mailed a letter to doctors informing
them that, under FOPA, they were "prohibited
from inquiring about the ownership of firearms or ammunition
unless the information is relevant to the patient's
medical care or safety, or the safety of others."
Id. at ¶ 13 (emphasis added). That same letter
further declared that FOPA "prohibits [doctors
and health care facilities] from intentionally entering any
disclosed information concerning firearm ownership into a
patient's health record if the information is not
relevant to the patient's medical care or safety, or the
safety of others." Id. (emphasis added).
"the Board has not been consistent in its position[,
]" Wollschlaeger IV, 814 F.3d at 1176, and its
July 18 letter does not diminish the doctors' objectively
reasonable fear of discipline. On this record the individual
plaintiffs, who are looking down the barrel of the
Board's disciplinary gun, are not required to guess
whether the chamber is loaded.
tackling the four challenged provisions, we address the
appropriate standard of review.
cases at the margin, it may sometimes be difficult to figure
out what constitutes speech protected by the First Amendment.
But this is not a hard case in that respect. We conclude, as
did the district court, see Wollschlaeger I, 880
F.Supp.2d at 1261, and the panel, see Wollschlaeger
IV, 814 F.3d at 1183, that the record-keeping, inquiry,
and anti-harassment provisions of FOPA constitute
speaker-focused and content-based restrictions on speech.
record-keeping and inquiry provisions expressly limit the
ability of certain speakers-doctors and medical
professionals-to write and speak about a certain topic-the
ownership of firearms-and thereby restrict their ability to
communicate and/or convey a message. As a result, there can
be no doubt that these provisions trigger First Amendment
scrutiny. "[S]peech is speech, and it must be analyzed
as such for purposes of the First Amendment." King
v. Governor of New Jersey, 767 F.3d 216, 229 (3d Cir.
anti-harassment provision also limits speech on the basis of
its content. Although it is certainly possible to harass
through conduct, see, e.g., Black's Law
Dictionary 831 (10th ed. 2014), we think the limiting text of
the anti-harassment provision ("during an
examination") is more normally read in this medical
setting to refer to questions or advice to patients
concerning the subject of firearm ownership. We therefore
agree with the panel that the anti-harassment provision
regulates speech based on content for the purposes of the
First Amendment. See Wollschlaeger IV, 814 F.3d at
1185 ("A natural reading of the [anti-harassment]
provision would seem to indicate that it is primarily
concerned with verbal harassment . . . . [W]e think that on
balance the provision substantially regulates
speech[.]"). And anti-harassment laws, insofar as they
regulate speech based on content, are subject to First
Amendment scrutiny. See DeJohn v. Temple Univ., 537
F.3d 301, 316 (3d Cir. 2008); Saxe, 240 F.3d at 207;
DeAngelis v. El Paso Mun. Police Officers Ass'n,
51 F.3d 591, 596-97 (5th Cir. 1995).
record-keeping, inquiry, and anti-harassment provisions of
FOPA are speaker-focused and content-based restrictions. They
apply only to the speech of doctors and medical
professionals, and only on the topic of firearm ownership.
See Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218,
2227 (2015); Sorrell, 564 U.S. at 567; Burk v.
Augusta-Richmond County, 365 F.3d 1247, 1251 (11th Cir.
2004). Even if the restrictions on speech can be seen as
viewpoint neutral-a point we need not address-that does not
mean that they are content-neutral. "[A] speech
regulation targeted at specific subject matter is content
based even if it does not discriminate among viewpoints
within that subject matter." Reed, 135 S.Ct. at
2230. "Innocent motives, " moreover, "do not
eliminate the danger of censorship presented by a facially
content-based statute, as future government officials may one
day wield such statutes to suppress disfavored speech."
Id. at 2229. Accord Cass R. Sunstein,
Democracy and the Problem of Free Speech 169 (1993)
("When government regulates content, there is a large
risk that the restriction really stems from something
illegitimate: an effort to foreclose a controversial
viewpoint, to stop people from being offended by certain
topics and views, or to prevent people from being persuaded
by what others have to say.").
Content-based restrictions on speech normally trigger strict
scrutiny. See Reed, 135 S.Ct. at 2231; United
States v. Playboy Entm't Grp., Inc., 529 U.S. 803,
813 (2000); Humanitarian Law Project, 561 U.S. at
27-28. See also Am. Booksellers v. Webb, 919 F.2d
1493, 1500 (11th Cir. 1990) ("content-based restrictions
on speech survive constitutional scrutiny only under
extraordinary circumstances"). Such review is properly
skeptical of the government's ability to calibrate the
propriety and utility of speech on certain topics. See
Thomas v. Collins, 323 U.S. 516, 544 (1945) (Jackson,
J., concurring) ("[T]he state may prohibit the pursuit
of medicine as an occupation without [a] license but I do not
think it could make it a crime publicly or privately to speak
urging persons to follow or reject any school of medical
thought."). But we need not decide whether strict
scrutiny applies here, because (as we discuss below) the
record-keeping, inquiry, and anti-harassment provisions of
FOPA fail even under heightened scrutiny as articulated in
Sorrell, 564 U.S. at 569-70 ("Vermont's law
imposes a content- and speaker-based burden on
respondents' own speech. That consideration . . .
requires heightened judicial scrutiny.").
to the state officials, the First Amendment is not implicated
because any effect on speech is merely incidental to the
regulation of professional conduct. See
Appellants' En Banc Br. at 30-34. Keeping in mind that
"[n]o law abridging freedom of speech is ever promoted
as a law abridging freedom of speech, " Rodney A.
Smolla, Free Speech in an Open Society 58 (1992), we do not
find the argument persuasive.
that restrictions on writing and speaking are merely
incidental to speech is like saying that limitations on
walking and running are merely incidental to ambulation.
See Wollschlaeger III, 797 F.3d at 918-19 (Wilson,
J., dissenting). We concur with the Third Circuit's
assessment that the "enterprise of labeling certain
verbal or written communications 'speech' and others
'conduct' is unprincipled and susceptible to
manipulation." King, 767 F.3d at 228.
state officials, however, rely on Justice White's
framework for evaluating the speech of those who are engaged
in a profession. In a concurrence he wrote 30 years ago,
Justice White suggested that when a person is exercising
judgment with respect to a particular client, he is
"engaging in the practice of a profession" and his
speech is "incidental to the conduct of the profession,
" such that his First Amendment interests are
diminished. See Lowe v. S.E.C., 472 U.S. 181, 232
(1985) (White, J., concurring in the judgment). So, if
"the government enacts generally applicable licensing
provisions limiting the class of persons who may practice [a]
profession, it cannot be said to have enacted a limitation on
freedom of speech or the press subject to First Amendment
scrutiny." Id. In a later dissent, Justice
White proposed that regulations of so-called professional
speech receive only rational basis review. See Thornburgh
v. Am. College of Obstetricians & Gynecologists, 476
U.S. 747, 802 (1986) (White, J., dissenting). On the other
hand, laws receive heightened First Amendment scrutiny if
they reach a professional who does not have a "personal
nexus" to a particular client and who is merely speaking
generally. See Lowe, 472 U.S. at 232 (White, J.,
concurring in the judgment).
we applied Justice White's framework in Locke v.
Shore, 634 F.3d 1185, 1191 (11th Cir. 2011), that case
is not of much help here, as it involved a Florida law
requiring that interior designers obtain a state license, and
not one which limited or restricted what licensed interior
designers could say on a given topic in practicing their
profession. The law, as we said, did "not implicate
constitutionally protected activity under the First
Amendment." Id. See also Moore-King v. County of
Chesterfield, 708 F.3d 560, 563-64, 569-70 (4th Cir.
2013) (applying Justice White's approach to uphold local
laws setting licensing, permitting, and zoning requirements
for fortune tellers).
Ninth Circuit also adopted Justice White's approach, but
in a case upholding a California law prohibiting mental
health practitioners from providing sexual orientation change
efforts (SOCE) therapy-meant to change a person's sexual
orientation from homosexual to heterosexual-to children under
the age of 18. See Pickup v. Brown, 740 F.3d 1208,
1225-29 (9th Cir. 2013) (as amended on rehearing).
Importantly, however, the law in Pickup-like the law
in Locke-did not restrict what the practitioner
could say or recommend to a patient or client. See
id. at 1223 (explaining that the California law did not
prevent mental health providers "from expressing their
views to patients, whether children or adults, about SOCE,
homosexuality, or any other topic" or from
"recommending SOCE to patients, whether children or
adults"). The Pickup panel, therefore,
concluded that the law "regulate[d] conduct" even
though it covered the verbal aspects of SOCE therapy. See
id. at 1229.
are serious doubts about whether Pickup was
correctly decided. As noted earlier, characterizing speech as
conduct is a dubious constitutional enterprise. See also
id. at 1215-21 (O'Scannlain, J., dissenting from
denial of rehearing en banc) (criticizing the Pickup
panel for, among other things, not providing a
"principled doctrinal basis" for distinguishing
"between utterances that are truly 'speech, ' on
the one hand, and those that are, on the other hand, somehow
'treatment' or 'conduct'"). In any
event, Pickup is distinguishable on its facts and
does not speak to the issues before us. To the extent that
Pickup provides any relevant insight, it recognizes
that "doctor-patient communications about
medical treatment receive substantial First Amendment
protection, " id. at 1227, and is therefore
consistent with our approach.
analogous-and more persuasive-Ninth Circuit case is
Conant v. Walters, 309 F.3d 629 (9th Cir. 2002),
which struck down, on First Amendment grounds, a federal
policy which threatened doctors with revocation of their DEA
prescription authority if they recommended the medicinal use
of marijuana to their patients. The Ninth Circuit recognized
that doctor-patient speech (even if labeled professional
speech) is entitled to First Amendment protection, and
invalidated the policy because it was content- and
viewpoint-based and did not have the requisite "narrow
specificity." See id. at 637-39. In so doing,
the Ninth Circuit rejected the government's paternalistic
assertion that the policy was valid because patients might
otherwise make bad decisions. See id. at
Supreme Court has never adopted or applied Justice
White's rational basis standard to regulations which
limit the speech of professionals to clients based on
content. See Wollschlaeger IV, 814 F.3d at 1190;
Pickup, 740 F.3d at 1218 (O'Scannlain, J.,
dissenting from denial of rehearing en banc). Indeed, on at
least a couple of occasions, the Court has applied heightened
scrutiny to regulations restricting the speech of
professionals. See, e.g., Legal Servs. Corp. v.
Velazquez, 531 U.S. 533, 542-48 (2001) (holding that a
federal law-which prohibited attorneys working for entities
receiving funds from the Legal Services Corporation from
challenging existing welfare laws and from advising their
clients about such challenges-violated the First Amendment
because it limited "constitutionally protected
expression" and "alter[ed] the traditional role of
the attorneys"); N.A.A.C.P. v. Button, 371 U.S.
415, 438-44 (1963) (holding that a Virginia solicitation law,
which prohibited organizations like the N.A.A.C.P. from
finding or retaining lawyers for individual litigants and
paying those attorneys a per diem fee for their professional
services, violated the First Amendment because the state had
not advanced any substantial regulatory interest to justify
Button, Virginia argued (much as the state officials
do here) that it had a "subordinating interest in the
regulation of the legal profession . . . which justifie[d]
limiting [the N.A.A.C.P.'s] First Amendment rights,
" but the Supreme Court rejected the argument out of
hand, and essentially applied a form of heightened scrutiny:
"[O]nly a compelling state interest in the regulation of
a subject within the State's constitutional power to
regulate can justify limiting First Amendment freedoms. Thus
it is no answer to the constitutional claims . . . to say . .
. that the purpose of [this law] was merely to insure high
professional standards and not to curtail free
expression." Id. at 438-39. What the Supreme
Court said in concluding its analysis in Button
seems to fit like a glove here: "[A] State may not,
under the guise of prohibiting professional misconduct,
ignore constitutional rights." Id. at 439.
that the Supreme Court cited and discussed Button
with approval recently in Reed, 135 S.Ct. at 2229,
the state officials cannot successfully rely on a single
paragraph in the plurality opinion of three Justices in
Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833, 884 (1992) (upholding state
requirement that doctors inform women seeking to terminate
their pregnancies of the risks associated with both
childbirth and abortion), to support the use of rational
basis review here. In any event, as Judge Wilkinson correctly
explained for the Fourth Circuit, the Casey
"plurality did not hold sweepingly that all regulation
of speech in the medical context merely receives rational
basis review." Stuart v. Camnitz, 774 F.3d 238,
249 (4th Cir. 2014). See also District of Columbia v.
Heller, 554 U.S. 570, 628 n.27 (2008) ("Obviously,
the [rational basis] test could not be used to evaluate the
extent to which a legislature may regulate a specific,
enumerated right, be it the freedom of speech, the guarantee
against double jeopardy, the right to counsel, or the right
to keep and bear arms.").
own circuit precedent also cuts against adoption of a
rational basis standard for evaluating so-called professional
speech. In Kingsville Independent Sch. Dist. v.
Cooper, 611 F.2d 1109, 1113 (5th Cir. 1980), we held
that a role-playing technique used by a public high-school
history teacher in the classroom was "protected
activity" under the First Amendment even if it was
characterized as "private expression." We then
explained that the school district's decision to not
renew the teacher's contract "for discussions
conducted in the classroom [could not] be upheld unless the
discussions 'clearly . . . overbalance[d] [the
teacher's] usefulness as an instructor.'"
we do not think it is appropriate to subject content-based
restrictions on speech by those engaged in a certain
profession to mere rational basis review. If rationality were
the standard, the government could-based on its disagreement
with the message being conveyed-easily tell architects that
they cannot propose buildings in the style of I.M. Pei, or
general contractors that they cannot suggest the use of
cheaper foreign ...