WOLLSCHLAEGER v. GOVERNOR OF THE STATE OF FLORIDA
814 F.3d 1159 (2015)
The Governor of the State of Florida, other Florida officials, and members of the Board of Medicine of the Florida Department of Health (collectively, the “State”), appeal from the District Court’s grant of summary judgment and an injunction in favor of a group of physicians and physician-advocacy groups (collectively, “Plaintiffs”) enjoining enforcement of Florida’s Firearm Owners Privacy Act1 (the “Act”) on First and Fourteenth Amendment grounds.
The Act seeks to protect patient privacy by restricting irrelevant inquiry and record-keeping by physicians on the sensitive issue of firearm ownership and by prohibiting harassment and discrimination on the basis of firearm ownership. The Act does not prevent physicians from speaking with patients about firearms generally. Nor does it prohibit specific inquiry or record-keeping about a patient’s firearm-ownership status when the physician determines in good faith, based on the circumstances of that patient’s case, that such information is relevant to the patient’s medical care or safety, or the safety of others.
Society has traditionally accorded physicians a high degree of deference due to their superior knowledge, educational pedigree, position of prestige, and “charismatic authority,” resulting from their “symbolic role as conquerors of disease and death.” Paula Berg, Toward A First Amendment Theory of Doctor-Patient Discourse and the Right to Receive Unbiased Medical Advice, 74 B.U. L.Rev. 201, 226 (1994). This deference reaches its apex in the examination room where patients are in a position of relative powerlessness. Patients must place their trust in the physicians’ guidance and submit to the physicians’ authority.
With this great authority comes great responsibility. To protect patients, society has long imposed upon physicians certain duties and restrictions that define the boundaries of good medical care. In keeping with this tradition, the State passed the Act. The Act codifies the commonsense conclusion that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care—especially not when that inquiry or record-keeping constitutes such a substantial intrusion upon patient privacy—and that good medical care never requires the discrimination or harassment of firearm owners.
In doing so, the Act plays an important role in protecting what gets into a patient’s record, thereby protecting the patient from having that information disclosed, whether deliberately or inadvertently. The Act closes a small but important hole in Florida’s larger patient-privacy-protection scheme. Given this understanding of the Act, and in light of the longstanding authority of States to define the boundaries of good medical practice, we hold that the Act is, on its face, a permissible restriction of physician speech. Physicians remain free—as they have always been—to assert their First Amendment rights as an affirmative defense in any actions brought against them. But we will not, by striking down the Act, effectively hand Plaintiffs a declaration that such a defense will be successful.
Accordingly, we reverse the District Court’s grant of summary judgment in favor of Plaintiffs, and vacate the injunction against enforcement of the Act.
On June 2, 2011, Florida Governor Rick Scott signed the Act into law. The Act created Fla. Stat. § 790.338, entitled “Medical privacy concerning firearms; prohibitions; penalties; exceptions,” and amended the Florida Patient’s Bill of Rights and Responsibilities, Fla. Stat. § 381.026, to include several of the same provisions. The Act also amended Fla. Stat. § 456.072, entitled “Grounds for discipline; penalties; enforcement,” to provide for disciplinary measures for violation of the Act. The Florida legislature passed the Act in response to complaints from constituents that medical personnel were asking unwelcome questions regarding firearm ownership, and that constituents faced harassment or discrimination on account of their refusal to answer such questions or simply due to their status as firearm owners.2
The Act provides, in relevant part, that licensed healthcare practitioners and facilities (1) “may not intentionally enter” information concerning a patient’s ownership of firearms into the patient’s medical record that the practitioner knows is “not relevant to the patient’s medical care or safety, or the safety of others,” id. § 790.338(1); (2) “shall respect a patient’s right to privacy and should refrain” from inquiring as to whether a patient or their family owns firearms, unless the practitioner or facility believes in good faith that the “information is relevant to the patient’s medical care or safety, or the safety of others,” id. § 790.338(2); (3) “may not discriminate” against a patient on the basis of firearm ownership, id. § 790.338(5); and (4) “should refrain from unnecessarily harassing a patient about firearm ownership,” id. § 790.338(6).3
[814 F.3d 1170]
Violation of any of the provisions of the Act constitutes grounds for disciplinary action under § 456.072(2). Fla. Stat. § 456.072(1)(nn). Furthermore, “[v]iolations of the provisions of subsections (1)-(4) constitute grounds for disciplinary action under [Fla. Stat. §§] 456.072(2) and 395.1055.” Fla. Stat. § 790.338(8). Thus, if the Board of Medicine of the Florida Department of Health (the “Board”) finds that a physician has violated the Act, the physician faces disciplinary measures including a fine, restriction of practice, return of fees, probation, and suspension or revocation of their medical license. Fla. Stat. § 456.072(2). An investigation culminating in disciplinary action may be initiated against a physician by the Department of Health or may be triggered by a citizen’s complaint. Fla. Stat. § 456.073. The minutes of a June 2, 2011, meeting of the Rules/Legislative Committee of the Board indicate that the Board is prepared to initiate disciplinary proceedings against a physician who violates the Act, stating that “the Committee [has] determined [that] violation of [the Act] falls under failure to comply with a legal obligation and the current disciplinary guidelines for this violation would apply.” Fla. Bd. of Medicine Rules/Legislative Comm., Meeting Report, at 3 (Jun. 2, 2011), available at http://ww10.doh.state.fl.us/pub/medicine/ Agenda_Info/Public_Information/Public_Minutes /2011/Committees/R-L/060211_Minutes.pdf.
On June 6, 2011, four days after Governor Scott signed the Act into law, Plaintiffs filed a 42 U.S.C. § 1983 action seeking declaratory and injunctive relief against the State in the United States District Court for the Southern District of Florida, alleging that the inquiry, record-keeping, discrimination, and harassment provisions of the Act facially violate the First and Fourteenth Amendments of the United States Constitution. Plaintiffs contended that the Act imposes an unconstitutional, content-based restriction on speech, is overbroad, and is unconstitutionally vague.
On September 14, 2011, finding that Plaintiffs were likely to succeed on the merits, the District Court preliminarily enjoined enforcement of the inquiry, record-keeping, discrimination, and harassment provisions of the Act, together with the provisions providing for discipline of physicians who violate the Act. Wollschlaeger v. Farmer, 814 F.Supp.2d 1367, 1384 (S.D.Fla.2011).
On June 2, 2012, the District Court permanently enjoined enforcement of the inquiry, record-keeping, discrimination, and harassment provisions of the Act—together with the related disciplinary provisions—holding, on cross motions for summary judgment, that all four provisions facially violated the First Amendment, and that the inquiry, record-keeping, and harassment provisions of the Act were void for vagueness. Wollschlaeger v. Farmer, 880 F.Supp.2d 1251, 1267-69 (S.D.Fla. 2012).
[. . .]
The District Court also held that the inquiry, record-keeping, and harassment provisions of the Act were unconstitutionally vague. Id. at 1267-69. With regard to the inquiry and record-keeping provisions, the District Court found that the “relevance standard” failed to provide sufficient guidance as to what conduct the Act prohibits. Id. at 1268. With regard to the harassment provision, the District Court noted that the term “harass” has an ordinary meaning that is readily clear, but “[w]hat constitutes `unnecessary harassment’ is left to anyone’s guess.” Id. at 1268-69. The District Court noted that it did not need to address Plaintiffs’ argument that the Act is overbroad because doing so would not change the outcome. Id. at 1270 n. 7.
[814 F.3d 1172]
Thus, the District Court—concluding the remaining provisions of the Act are severable—granted Plaintiffs’ motion for summary judgment, and granted in part and denied in part the State’s motion for summary judgment.4 Id. at 1270. Accordingly, the District Court permanently enjoined the State from enforcing the record-keeping, inquiry, harassment, and discrimination provisions of the Act, § 790.338(1), (2), (5), (6), and from enforcing § 790.338(8), to the extent that it provided that violations of § 790.338(1) and (2) constitute grounds for disciplinary action, and § 456.072(1)(nn), to the extent that it provided that violations of § 790.338(1), (2), (5) and (6) constitute grounds for disciplinary action. Id.
On July 30, 2012, the State timely appealed the District Court’s judgment. We have jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1291.
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Now for the merits of Plaintiffs’ claims [. . .]
We will begin with the latter contention and then move to the First Amendment challenges. See Borgner v. Brooks, 284 F.3d 1204, 1208 (11th Cir.2002) (“Before analyzing [the challenged state statute] under the [appropriate level of First Amendment scrutiny], we must first determine whether the statute, taken as a whole, is clear as far as what is required and what is prohibited.”).
Under “[t]he void-for-vagueness doctrine[,] . . . `a statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.'” Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1310 (11th Cir.2009) (third alteration in original) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 629, 104 S.Ct. 3244, 3256, 82 L.Ed.2d 462 (1984)). Thus, 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.” Giaccio v. Pennsylvania, 382 U.S. 399, 402-03, 86 S.Ct. 518, 520-21, 15 L.Ed.2d 447 (1966).
The Supreme Court has explained that “standards of permissible statutory vagueness are strict in the area of free expression.” NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963). Nonetheless, “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 2755, 105 L.Ed.2d 661 (1989) (citation omitted); see also Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972) (“Condemned to the use of words, we can never expect mathematical certainty in our language.”). When a statute is challenged for vagueness prior to enforcement, the litigants must allege that they are “chilled from engaging in constitutionally protected activity.” See Bankshot Billiards v. City of Ocala, 634 F.3d 1340, 1350 (11th Cir. 2011) (“[P]re-enforcement review provides law-abiding citizens with a middle road between facing prosecution and refraining from otherwise constitutional conduct.”). Still, “speculation about possible vagueness in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid in the vast majority of its intended applications.” Hill v. Colorado, 530 U.S. 703, 733, 120 S.Ct. 2480, 2498, 147 L.Ed.2d 597 (2000) (citation and quotation marks omitted).
The record-keeping provision prohibits physicians from “intentionally enter[ing] any disclosed information concerning firearm ownership into the patient’s medical record if the [physician] knows that such information is not relevant to the patient’s medical care or safety, or the safety of others.” Fla. Stat. § 790.338(1). We note three salient points with regard to this provision. First, the substantive prohibition contained in the first clause—that a physician may not “intentionally enter any disclosed information concerning firearm ownership,” id.—is conditioned on a relevancy requirement in the second clause. See If, Oxford English Dictionary (2015) (defining “if” as a conjunction that “introduc[es] a clause of condition or supposition”). The substantive prohibition applies only when the condition in the second clause is met—that is, when a physician knows that information concerning firearm ownership is not relevant to the patient’s medical care or safety, or the safety of others. Logically, when a physician does not know that information concerning firearm ownership is irrelevant to the patient’s medical care or safety, or the safety of others, the prohibition does not apply.
Second, and relatedly, the statute is written to require a high degree of certainty as to non-relevance on the part of the physician before the prohibition takes effect. By its terms, the record-keeping provision prohibits physicians from entering information concerning firearm ownership only when the physician has knowledge of that information’s irrelevance to medical care or safety. Any mental state regarding irrelevance that does not rise to the level of knowledge would not trigger the prohibition.
Finally, of course, if the prohibition applies only when a physician knows the information to be irrelevant, then the critical issue is the meaning of the relevancy requirement. Plaintiffs argue that the provision is vague because it does not provide them with sufficient notice as to when record-keeping regarding firearms is relevant to medical care or safety. Plaintiffs note that the Act does not specify whether a physician must make a particularized finding of relevance for each patient or whether a physician’s general belief that firearms are always relevant will suffice. They also argue that the Act does not specify if a physician must believe that firearm information is relevant at the time of inquiry and record-keeping, or if a good-faith belief that the information may later become relevant (such as in the practice of preventive medicine) satisfies the requirements of the Act. Plaintiffs contend that, because a reading that information about firearms is always relevant would render the Act meaningless, physicians reasonably fear that the Act requires some higher, unspecified level of relevance.
We find that recourse to plain meaning resolves the issue. See Johnson v. Governor of Fla., 405 F.3d 1214, 1247 (11th Cir.2005) (en banc) (“The first step in statutory interpretation requires that courts apply the plain meaning of the statutory language unless it is ambiguous.”). “Relevant” means “[b]earing on or connected with the matter in hand; closely relating to the subject or point at issue; pertinent to a specified thing.” Relevant, Oxford English Dictionary (2015). We agree that the Act’s relevancy requirement does not have a neat, one-size-fits-all definition; rather, relevancy is necessarily determined on a case-by-case basis. That is, whether information is related to the matter at hand depends entirely on the specifics of the matter at hand. A reading that information about firearm-ownership is relevant in every case would, indeed, render the record-keeping provision superfluous, but this problem is easily avoided by adhering to a plain-meaning construction of relevancy as an ad hoc determination, requiring physicians to base their calculation as to the relevancy of a patient’s firearm-ownership status on particularized information about the patient. By employing a flexible relevancy standard, the Act provides physicians with the freedom to record information regarding firearm ownership whenever doing so would be part of the practice of good medicine.
Taking these three points together, we think the record-keeping provision stands for the simple proposition that a physician may not record a patient’s firearm-ownership status unless the physician believes that—because of some particularized information about the individual patient, for example, that the patient is suicidal or has violent tendencies—the patient’s firearm-ownership status pertains to the patient’s medical care or safety, or the safety of others. The record-keeping provision is sufficiently clear that a person of common intelligence need not guess as to what it prohibits.
The inquiry provision is phrased slightly differently, but we think it is substantially similar to the record-keeping provision in terms of its practical effect. The inquiry provision directs physicians to 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 or other domicile of the patient or a family member of the patient. Notwithstanding this provision, a [physician] . . . that in good faith believes that this information is relevant to the patient’s medical care or safety, or the safety of others, may make such a verbal or written inquiry. Fla. Stat. § 790.338(2).
Here again, the substantive prohibition is qualified by a relevancy requirement, effectively providing that physicians may inquire whenever they believe in good faith that firearm ownership information is relevant to medical care or safety. Again, the provision sets a high bar as to the mental state necessary to trigger the prohibition: a physician must lack any good-faith belief as to the relevancy of the information. The provision does not require physicians to have knowledge of relevance before speaking, but only a good-faith belief as to relevance. Although this is phrased differently than the record-keeping provision’s relevancy requirement, we think the inquiry and record-keeping provisions form two sides of the same coin. The prohibitions apply when a physician knows the information to be irrelevant and do not apply if the physician has a good-faith belief that the information is relevant.
And, as with the record-keeping provision, the relevancy clause is also key here. Plaintiffs again assert that the term “relevant” is vague, but as we observed above, in context, this requirement simply means that physicians should base their calculation as to the relevancy of a patient’s ownership of firearms on particularized information about the patient. Thus, physicians may make inquiries as to the firearm-ownership status of any or all patients, so long as they do so with the good-faith belief—based on the specifics of the patient’s case—that the inquiry is relevant to the patient’s medical care or safety, or the safety of others. If, for example, a physician seeks firearm information to suit a personal agenda unrelated to medical care or safety, he would not be making a “good-faith” inquiry, and so the Act plainly directs him to refrain from inquiring.
Accordingly, we conclude that the inquiry provision is sufficiently clear that a person of common intelligence need not guess as to what it prohibits.
Finally,11 the harassment provision also contains the same basic elements as the first two provisions, albeit with a few modifications. The harassment provision directs physicians to “refrain from unnecessarily harassing a patient about firearm ownership during an examination.” Fla. Stat. § 790.338(6). Like the record-keeping and inquiry provisions, the harassment provision does not impose a flat ban on the speech at issue, but rather qualifies its ban—here, with a necessity requirement. Under the terms of the statute, physicians are prohibited from harassing patients about firearm ownership only when such harassment is unnecessary.
One way in which the harassment provision differs from the previous two provisions, however, is with regard to the mental state that triggers the substantive prohibition. Instead of imposing a high bar before prohibiting the speech—requiring knowledge of irrelevance or the absence of a good-faith belief of relevance—the harassment provision flips this formula, imposing a relatively high bar before permitting the speech. Harassment about firearm ownership is permitted only when necessary. We are not troubled by this inversion, however, because although, as we discuss below, we can imagine scenarios in which “harassment” might be warranted, even advisable, we think that in the majority of cases, it will not be. Imposing a more rigorous standard before permitting record-keeping or inquiry might present a more difficult question, but we do not think it inappropriate as a prerequisite to permitting “harassing.”
Finally, we think that the necessity requirement, like the record-keeping and inquiry provisions, when read in the context of the Act as a whole, also has the effect of requiring a particularized determination by the physician as to relevance. See Young v. Progressive Se. Ins. Co., 753 So.2d 80, 84 (Fla.2000) (“[A]ll parts of a statute must be read together in order to achieve a consistent whole,” and “`[w]here possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another.'”), cited with approval in Borgner, 284 F.3d at 1208 (Wilson, J.).
Two points inform this conclusion. First, the harassment provision contains an explicit temporal limitation: unnecessary harassment is prohibited “during an examination.” Fla. Stat. § 790.338(6). Since the purpose of a medical examination is the provision of medical care, it seems logical to assume that if any harassment is permissible within that context, it must be related to the purpose of the medical examination. Second, the relevancy requirements present in both the record-keeping and inquiry provisions illuminate the meaning of the necessity requirement in the harassment provision. These requirements manifestly turn on a particularized determination by the physician as to the relevancy of the speech to the medical care or safety of the patient, or the safety of others. While that link is not made explicit in connection with the necessity requirement, the clear implication, given this pattern, is that the necessity requirement is directed to the same object: the medical care or safety of the patient, or the safety of others.
Plaintiffs express concern that the relevancy determination will hinge solely on a particular patient’s subjective understanding of what constitutes “unnecessary harassment,” and that as a result, they may be subjected to liability or discipline on an arbitrary basis. Were this indeed the case, the provision would likely be invalid. See Conant v. Walters, 309 F.3d 629, 639 (9th Cir.2002) (holding a statute providing for administrative action against physicians who engage in speech that “the patient believes to be a recommendation of marijuana” lacks the requisite narrow specificity under the First Amendment); see also Thomas v. Collins, 323 U.S. 516, 535, 65 S.Ct. 315, 325, 89 L.Ed. 430 (1945) (striking down on First Amendment grounds a statute criminalizing solicitation of union membership without state license because the statute did not distinguish between solicitation and advocacy, and so “put the speaker . . . wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning”).
Again, we find the plain meaning of the term “harass” sufficient to dispel these fears. “Harass” means “[t]o wear out, tire out, or exhaust with fatigue, care, trouble, etc.” Harass, v., Oxford English Dictionary (2015). When read in the context of the Act as a whole, the harassment provision communicates that physicians should not disparage firearm-owning patients, and should not persist in attempting to speak to patients about firearm ownership when the subject is not relevant to medical care or safety. Like the other provisions of the Act, the harassment provision targets physicians who wish to pursue an agenda unrelated to medical care or safety.
Although the District Court understood the modifier “unnecessarily” to be problematic, we disagree. The modifier in fact allows a physician the freedom to challenge—that is, “harass”—a patient regarding firearms when, under the particularized circumstances of the patient’s case, doing so is necessary for health or safety reasons, even if the patient might find the physician’s advice unwelcome. For example, if a patient is suicidal, a physician may wish to attempt to persuade the patient to remove firearms from the patient’s home, even if the patient initially objects. So even if the patient considers the physician’s firearm-related health and safety advice to be harassing, the inclusion of the modifier “unnecessarily” leaves room for the physician to deliver such advice when necessary to medical care or safety, consistent with the Act’s other provisions. The harassment provision is sufficiently clear that a person of common intelligence need not guess as to what it prohibits.
As a final point, we note that patients by themselves cannot subject physicians to discipline. Patients may file a complaint, which triggers an investigation by the Board, or they may bring a malpractice action. But, so long as a physician is operating in good faith within the boundaries of good medical practice, and is providing only firearm safety advice that is relevant and necessary, he need not fear discipline at the hands of the Board or a money judgment in a court of law.
To summarize, we read the Act to prohibit record-keeping about firearm ownership only when the physician knows such information to be irrelevant to the patient’s medical care or safety, or the safety of others; inquiry about firearm ownership only when the physician lacks a good-faith belief that the information is relevant to the patient’s medical care or safety, or the safety of others; and harassment about firearm ownership only when the physician does not believe it necessary for the patient’s medical care or safety, or the safety of others.
Having determined that the record-keeping, inquiry, and harassment provisions are of sufficient clarity to conform to the requirements of due process, we hold that the District Court erred in holding them void for vagueness.