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Wollschlaeger v. Governor, State of Florida

United States Court of Appeals, Eleventh Circuit

February 16, 2017

DR. BERND WOLLSCHLAEGER et al., Plaintiffs/Appellees,
GOVERNOR, STATE OF FLORIDA et al., Defendants/Appellants.

         Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:11-cv-22026-MGC


          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 (1992).

         This 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.

         Shortly 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 2016.

         Exercising 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.


         As part 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.

         In an 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[.]"

         The 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.


         In 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. Id.

         The 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.

         A 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.


         Based 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 Responsibilities).

         The 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."[1]

         Through 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.

         FOPA 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).

         Statutorily, 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).


         The 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.

          To 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 1391 n.6.

         Ripeness, 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.

         This is 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).


         "When 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 action).

         It is 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).

         Where 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.").[2]


         The 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).

         First, 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).

         Second, 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 (2010).

         Third, 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 original).

         Fourth, 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. 1999).

         In 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).

         In sum, "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.[3]


         Before tackling the four challenged provisions, we address the appropriate standard of review.


         In 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.

          The 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. 2014).

         The 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).


         The 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.").


         According 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.

         Saying 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.

         The 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).[4]

         Although 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).

          The 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.

         There 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.

         A more 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 637.[5]

         The 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 the prohibition).

         In 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.

         Given 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.").

          Our 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.'" Id.[6]

         In sum, 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 ...

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