Access to Public Information, Political Expression, Privacy, Data Protection and Retention
Bainter v. League of Women Voters
Closed Contracts Expression
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The Eleventh Circuit Court of Appeals determined that provisions of the 2011 Firearm Owners’ Privacy Act (Act) were valid regulations of professional conduct and were neither overbroad or vague. The Act subjects doctors to disciplinary actions if they make ‘verbal or written inquiries’ about whether patients own firearms. A group of medical providers (Plaintiff-Appellees) filed a lawsuit against the Governor of Florida (Defendant-Appellant), alleging that the inquiry, record-keeping, discrimination, and harassment provisions of the Act facially violated their First Amendment right to free speech. The U.S. District Court granted summary judgment in favor of Plaintiff-Appellees, and enjoined the Act on First Amendment grounds. On appeal, the Eleventh Circuit Court of Appeals reversed in part, and vacated in part, the District Court’s decision. In the dissent, Judge Wilson strongly disagreed with the majority, and stressed that the Act does, in fact, violate the Plaintiff-Appellees’ First Amendment right to free speech. The dissent opined that the Act is a content-, speaker-, and viewpoint-based restriction on speech because it suppresses only medical providers from speaking about firearms with patients.
In June 2011, the Act became law. In dispute were four parts of the Act, which provide that licensed health care practitioners and facilities: 1) “may not intentionally enter any disclosed information concerning firearm ownership into the patient’s medical record if the practitioner knows that such information is not relevant to the patient’s medical care or safety, or the safety of others;” 2) “should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition;” 3) “may not discriminate against a patient based solely upon the patient’s exercise of the constitutional right to own and possess firearms or ammunition;” and 4) “shall respect a patient’s legal right to own or possess a firearm and should refrain from unnecessarily harassing a patient about firearm ownership during an examination.” Any violation of the Act would subject a medical provider to disciplinary sanctions.
Several days after the Act became law, medical providers filed a lawsuit in the U.S. District Court for the Southern District of Florida, alleging that the inquiry, record-keeping, discrimination, and harassment provisions of the Act facially violated their First Amendment right to free speech. Plaintiff-Appellees contended that the four provisions of the Act imposed an unconstitutional, content-based restriction on speech, was overbroad, and was unconstitutionally vague. They requested declaratory and injunctive relief.
In June 2012, the U.S. District Court permanently enjoined the Act, finding that the four provisions in dispute facially violated the First Amendment, and that the inquiry, record-keeping, and harassment provisions of the Act were void for vagueness. The Court also determined that the Act was a content-based restriction on medical providers’ right to free speech because it prohibited them from speaking about the subject of firearms. In doing so, the District Court recognized the State’s interest in upholding the Second Amendment right to keep and bear arms, but determimned that this was “irrelevant” to the Act, and therefore it was not “a legitimate or compelling interest.”
In July 2012, the Defendant-Appellant appealed to the Eleventh Circuit Court of Appeals. The Defendant-Appellant argued that that the Act regulates professional conduct, namely the prevention of harassment and discrimination – not speech – and that any imposition on Plaintiff-Appellees’ First Amendment right to free speech was merely incidental. The Defendant-Appellant further argued that even if the Court found that the Act imposed more than an incidental burden on the Plaintiff-Appellees’ right to free speech, that the Act was constitutional because it is narrowly tailored to further substantial governmental interests. The Defendant-Appellants cited patient privacy, protecting Second Amendment rights, preventing barriers for firearm owners to receive medical care, and preventing harassment and discrimination of firearm-owning patients as the substantial government interests the Act sought to protect. The Defendant-Appellant claimed that the plain language of the Act makes it clear – and thus is not unconstitutionally vague – what conduct is prohibited under the inquiry, record-keeping, and harassment provisions of the Act. The Defendant-Appellants also argued that the Act was not overbroad because the terms of the inquiry and record-keeping provisions do not unconstitutionally prohibit any speech, as they mirror other federal civil rights law that are already enacted.
The Eleventh Circuit Court of Appeals reversed the District Court, finding in favor of the Defendant-Appellant.
First, the Appeals Court determined that the inquiry and record-keeping provisions were valid regulations of professional conduct with only an incidental burden on Plaintiff-Appellees’ free speech rights. The Court found that the main purpose of these provisions were to define the the practice of good medicine, in the context of the physician-patient relationship, and placed no burden on a doctor’s freedom of speech outside of the physician-patient relationship. The Court applied this same argument to the provisions regarding discrimination and harassment, and found that the provisions are valid regulations of professional conduct.
The Court also held that Act was not overbroad, reasoning that because the Act “is a professional regulation with a merely incidental effect on protected speech, we cannot say that its impermissible applications are substantial relative to its plainly legitimate sweep.” The Court also determined that the Act was not unconstitutionally vague. The Court emphasized that a statute is unconstitutionally vague if “it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.” The Court found that the ordinary meaning of the terms ‘discrimination’ and ‘harass’ is known to the average person.
In the dissent, Judge Wilson strongly disagreed with the majority, and stressed that the Act does, in fact, violate the Plaintiff-Appellees’ First Amendment right to free speech. The dissent opined that the Act is a content-, speaker-, and viewpoint-based restriction on speech because it suppresses only medical providers from speaking about firearms with patients. The dissent rejected the majority’s reasoning that a First Amendment violation does not exist because the Act seeks to censor “speech [that] occurs in the course of conducting one’s business as a professional.” The dissent equated this assertion to stating that this type of speech – medical consultation – is unprotected by the First Amendment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s Opinion imposes severe restrictions on medical providers’ right to free speech. In reaching its holding, the Court bans medical providers from asking specific questions, or engaging in conduct (e.g. record-keeping) related to the banned questions. The Court does so under the guise that it is for the purpose of regulating professional conduct, in the interest of protecting patients’ privacy rights, and protecting patients from any power imbalance that may occur behind closed doors with medical providers. However in reality, it appears the Court is chipping away at the First Amendment because its Opinion silences a specific group of speakers – medical providers – from talking about one specific topic – firearms. What is most concerning about this Opinion and its effect on freedom of speech and expression is that the ripple effect of this Opinion on other professions, and in other jurisdictions, still remains to be seen.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
“It is rare that a regulation restricting speech because of its content will ever be permissible.”
Content-based statutes “are presumptively invalid.”
“A statute that governs the practice of an occupation is not unconstitutional as an abridgement of the right to free speech, so long as any inhibition of that right is merely the incidental effect of observing an otherwise legitimate regulation.”
As a general matter, of course, speech by professionals is not immune from the protections of the First Amendment.
Harassing speech may in some cases be protected by the First Amendment, such as when such speech is made in a public place regarding a matter of public concern.
A statute was a valid regulation of professional conduct when it has only and “incidental effect on speech.”
“[T]he creation and dissemination of information are speech within the meaning of the First Amendment.”
Case significance refers to how influential the case is and how its significance changes over time.
All U.S. District Courts in the Eleventh Circuit are required to follow the Appeals Court’s decision.
Remains to be seen, and each circuit must be evaluated on a case-by-case basis. For example, this Opinion would not be considered persuasive in the Ninth Circuit because the Court recently held that a statute was a valid regulation of professional conduct when it has only and “incidental effect on speech.” However, this Opinion would be very persuasive in conservative jurisdictions that have yet to be presented with this question.
Let us know if you notice errors or if the case analysis needs revision.