Florida/Georgia Personal Injury & Workers Compensation

...City of St. Paul, 505 U.S. 377, 382 , 112 S.Ct. 2538 (1992). This particular principle looms large in this ease, 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)....

...That same representative testified at a subcommittee hearing that “[questioning patients about gun ownership to satisfy a political agenda ... needs to stop.” Id. B 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 *1303 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 prov...

...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 ......

...d-keeping (“may not”), inquiry (“shall ... refrain”), and anti-discrimination (“may not”) provisions. More fundamentally, the argument ignores § 456.072(l)(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 (l)-(4) “constitute grounds for disciplinary action”)....

...State Bar of Ga., 150 F.3d 1333 , 1344 (11th Cir. 1998), but that is not enough to sustain the three provisions at issue given other privacy protections in Florida law and the record before us. One of the FOPA provisions that has not been challenged, § 790.338(4), states in relevant part that patients “may decline to answer or provide any information regarding ownership of a firearm ......

...or the presence of a firearm in the domicile of the patient or a family member of the patient.” So any patients who have privacy concerns about information concerning their firearm ownership can simply refuse to answer questions on the topic. Because the state officials do not explain why § 790.338(4) is insufficient to protect the privacy of patients who do not want others (including doctors and medical professionals) to know that they own or possess a firearm, they have failed to meet their burden under heightened scrutiny....

...essionals from terminating their professional relationships with patients who decline to answer questions about firearm ownership. That would certainly be a less speech-restrictive solution. But FOPA does the opposite, because the second sentence of § 790.338(4) provides that a “patient’s decision not to answer a question relating to the presence or ownership of a firearm does not alter existing law regarding a physician’s authorization to choose his or her patients.” At a hearing befor...

...on’s home, and holding that a father attending his son’s funeral was not captive to picketers of the ceremony). Second, doctors and patients undoubtedly engage in some conversations that are difficult and uncomfortable, and the first sentence of § 790.338(4) already gives patients the right to refuse to answer questions about firearm ownership....

...are not appropriately tailored to address the concerns identified by the anecdotes in the record, Florida’s general interest in regulating the medical profession is insufficient to satisfy heightened scrutiny. E The anti-discrimination provision, § 790.338(5), is of a slightly different caliber, as it prohibits discrimination “against a patient based solely” on his or her ownership and possession of a firearm. Although we have recognized that “anti-discrimination laws are [not] categorically immune from First Amendment challenge[s],” Booth v. Pasco County, 757 F.3d 1198, 1212 (11th Cir. 2014) (citation and internal quotation marks omitted), § 790.338(5) does not, on its face, implicate the spoken or written word....

...uct such as failing to return messages, charging more for the same services, declining reasonable appointment times, not providing test results on a timely basis, or delaying treatment because a patient (or a parent of a patient) owns firearms. When § 790.338(5) is limited in this way, there is no First Amendment problem, as the plaintiffs conceded at oral argument....

...olate the First Amendment, and that the anti-discrimination provision, as construed, does not. Our ruling therefore does not affect five provisions of FOPA: the provision relating to firearm inquiries by emergency medical technicians and paramedics, § 790.338(3); the provision allowing patients to decline to answer questions or provide information about firearm ownership but explaining that a patient’s decision not to answer such questions “does not alter existing law regarding a physician’s authorization to choose his or her patients,” § 790.338(4); the provision prohibiting discrimination, § 790.338(5); the provision prohibiting insurers from denying coverage, increasing premiums, and otherwise discriminating against an applicant or insured based on the lawful ownership of firearms or ammunition, but allowing insurers to consider the fair market .value of firearms or ammunition in setting premiums for scheduled personal property coverage, § 790.338(7); and the provision stating that violations of subsections (1)-(4) constitute grounds for disciplinary action, § 790.338(8)....

...“We owe the work of the elected representatives of the people of Florida respect!,] and we will invalidate no more of [FOPA] than we must.” Frazier ex rel. Frazier v. Winn, 535 F.3d 1279, 1283 (11th Cir. 2008). We therefore sever the record-keeping (§ 790.338(1)), inquiry (§. 790.338(2)), and anti-harassment (§ 790.338(6)) provisions of FOPA and permanently enjoin their enforcement....

...Because the State has failed to demonstrate that these provisions are narrowly drawn to directly and materially advance a substantial government interest, they cannot withstand heightened scrutiny. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 , 115 S.Ct. 2371 (1995). The anti-harassment provision, Fla. Stat. § 790.338 (6), also suffers from a second constitutional infirmity. This provision says that health-care practitioners “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.” Fla. Stat. § 790.338 (6)....

...Both of these provisions restrict harassment by providing some guidance regarding the specific conduct or speech that is banned. Thus, “harassment” has a common meaning standing alone, and laws proscribing harassing behavior can be further delimited in scope through context and formal definitions. Had § 790.338(6) simply banned “harassment about firearm ownership during an examination,” our review would have revealed poor tailoring and inadequate state interests as the sole causes of its constitutional demise....

...ording to its common usage, the State takes the plain word and renders it incomprehensible by appending a wholly nebulous adverb. Doctors are to refrain from “unnecessarily harassing” their patients about firearm ownership and safety. Fla. Stat. § 790.338 (6)....

...This locution allows that some harassment may be permissible or even necessary. Indeed, we expect doctors to doggedly exhort unhealthy patients to exercise more, eat less, or stop smoking, even when such admonishments may “annoy persistently.” Section 790.338(6) must — but does not — provide doctors with fair notice regarding either the level of harassment that may be permitted as a necessary element of medical care or the point at which harassment metamorphoses into illegal activity....

...But this interpretation stands in stark contrast to the plain text of the statute: “A health care practitioner ... 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.” Fla. Stat. § 790.338 (6). While the inquiry provision allows a doctor to ask about firearm ownership and safety if he “in good faith” believes the questions to be “relevant to the patient’s medical care or safety,” Fla. Stat. § 790.338 (2), this safe harbor is notably absent from the anti-harassment provision....

...Judge Jordan’s opinion is joined by Chief Judge Ed Carnes and Judges Hull, Marcus, William Pryor, Martin, Rosen-baum, Julie Carnes, and Jill Pryor. Judge Marcus' opinion is joined by Judges Hull, Wilson, Martin, Jordan, Rosenbaum, and Jill Pryor. . For convenience, Fla. Stat. § 790.338 is reproduced in the appendix....

...i, 547 U.S. at 420-21 , 126 S.Ct. 1951 . . The plaintiffs do not challenge the district court’s ruling that the anti-discrimination provision is not unconstitutionally vague. See Wollschlaeger I, 880 F.Supp.2d at 1268 . . Obviously, the portion of § 790.338(8) providing that violations of the record-keeping and inquiry provisions constitute grounds for disciplinary action no longer has any effect.

...here by way of background. On June 2, 2011, Governor Rick Scott signed into law “[a]n Act relating to the privacy of firearm owners” (hereinafter, the “Firearm Owners’ Privacy Act” or the “Act”). CS/CS/HB 155 (codified at Fla. Stats. §§ 790.338, 381.026, 456.072, 395.1055). The bill created Fla. Stat. § 790.338 , entitled “Medical privacy concerning firearms; prohibitions; penalties; exceptions,” and amended other scattered statutes. Pursuant to § 790.338, licensed health care practitioners or facilities (collectively, “practitioners”) may not (i) intentionally record any disclosed information concerning firearm ownership in a patient’s medical record if the practitioner knows the inf...

...constitutional right to possess (i.e., keep) firearms.” (Id. at 4-5). At the summary-judgment stage of litigation, the State appears to recast its reading of the Act as mainly an anti-discrimination and harassment bill. The State maintains that “Section 790.338 is a run-of-the-mill anti-discrimination law....” (Defs’ Resp. to Pis.’ Mot. for Summ. J. 1). The State notes, “Section 790.338 prohibits discriminatory or harassing conduct, but incidentally burdens speech, if at all, by limiting the type of questions a practitioner can make in the medical treatment setting in the absence of medical necessity (subsection 2) a...

...e decision will redress the injury. Id. at 560-61 , 112 S.Ct. 2130 . The State contends that Plaintiffs fail to establish an injury-in-fact. I agree with the State that Plaintiffs do not establish an injury-in-fact with respect to every provision of § 790.338. Plaintiffs, who consist of physicians and physician groups, have not demonstrated that the following provisions have a chilling effect on their speech: § 790.338(3), which relates to emergency medical technicians and paramedics; § 790.338(4), which provides that a patient may decline to answer or provide information about firearms and states that the Act does not alter existing law regarding a physician’s ability to choose her patients; and § 790.338(7), which applies to insurers. These provisions do not affect Plaintiffs’ free speech rights because they do not apply to practitioners, they do not proscribe practitioners’ speech, or they pertain solely to patients’ rights to refuse to answer questions. As to § 790.338(1), (2), (5), and (6), Plaintiffs have established an injury-in-fact....

...Plaintiffs would then be free to resume the use of questionnaires including questions about firearm ownership, which would be included in the patient’s medical record, and counseling patients regarding firearm safety. For the reasons provided, I find that Plaintiff have standing to challenge § 790.338(1), (2), (5), and (6)....

...ion of medical care, as well as to prevent practitioners from harassing and discriminating against patients based on their ownership or possession of firearms. The State now sets forth a somewhat revised justification of the law, maintaining that “Section 790.338 is a run-of-the-mill anti-discrimination law.” According to the State, the record-keeping provision “works in tandem ■with the prohibitions against discrimination and harassment,” and the inquiry-restriction provision “serve...

...mination, and anti-harassment provisions do not consist of the least restrictive means to accomplish the State’s ends. The non-objectionable portions of the law already adequately protect the privacy interests that the State seeks to ensure. Under § 790.338(4), a patient may decline to answer or provide any information regarding firearm ownership or possession. Under the first clause of § 790.338(2), the practitioner must respect a patient’s right to privacy....

...Civil Liberties Union, 521 U.S. 844, 871-72 , 117 S.Ct. 2329 , 138 L.Ed.2d 874 (1997). The State does not respond to Plaintiffs’ arguments that the phrase “relevant to the patient’s medical care or safety, or .the safety of others,” which appears in § 790.338(1) and (2), is unconstitutionally vague....

...Corp., 640 F.3d 1278, 1285 (11th Cir.2011) (“[A] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” (quoting Corley v. United States, 556 U.S. 303 , 129 S.Ct. 1558 , 173 L.Ed.2d 443 (2009))). Section 790.338(6) *1269 provides that a practitioner “should refrain from unnecessarily harassing a patient about firearm ownership during an examination.” What constitutes “unnecessary harassment” is left to anyone’s guess....

...he one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken. Id. at 1348 . The Firearm Owners’ Privacy Act contains seven subsections. As I noted above, Plaintiffs do not have standing to challenge § 790.338(3), (4), and (7)....

...ntities. The legislature’s purpose in permitting patients to maintain as private or confidential information about firearms private can be accomplished through subsection (4), which provides that a patient may decline to disclose such information. Section 790.338(3), (4), and (7) are separable in substance from the invalid portions of the law; it cannot be said that the legislature would never have passed these subsections without the invalid portions of the law. A complete act remains even if the invalid portions of the law are stricken. The State also argues that certain clauses in § 790.338(2) and (6) can be severed from any invalid portions of those subsections. Specifically, the State seeks to salvage § 790.338(2)’s clause that a practitioner “shall respect a patient’s right to privacy” and § 790.338(6)’s clause that a practitioner “shall respect a patient’s legal right to own or possess a firearm.” “The *1270 fact that an invalid portion of a statute is not self-contained in separate sections does not prohibit the court from...

...Conclusion For the reasons provided, the Defendants’ Second Amended Motion for Summary Judgment (ECF No. 93) is GRANTED in part and DENIED in part, and the Plaintiffs’ Motion for Summary Judgment (ECF No. 86) is GRANTED. 7 The State is permanently enjoined from enforcing § 790.338(1), (2), (5), and (6). The State is also permanently enjoined from enforcing § 790.338(8), to the extent that it provides that violations of § 790.338(1) and (2) constitute grounds for disciplinary action. The State is further permanently enjoined from enforcing § 456.072(l)(mm), to the extent that it provides that violations of § 790.338(1), (2), (5), and (6) shall constitute grounds for which disciplinary actions specified under § 456.072(2) may be taken....

...A separate judgment will be issued forthwith pursuant to Rule 58 of the Federal Rules of Civil Procedure. . The law also contains provisions governing emergency medical technicians or paramedics and insurance companies, and provides that a patient may refuse to answer questions regarding firearms. See § 790.338(3), (4), (7)....

...w, Plaintiffs do not have standing to challenge them. (See Compl. ¶¶ 58-62). . The State also argues that Plaintiffs do not have standing to challenge § 790.33 8(2)’s clause that a practitioner "shall respect a patient's right to privacy” and § 790.338(6)’s clause that a practitioner "shall respect a patient’s legal right to own or possess a firearm.” Plaintiffs challenge the entirety of each of these provisions....

...For the reasons provided in this Order, the Motion is granted. I. Background On June 2, 2011, Governor Rick Scott signed into law “[a]n Act relating to the privacy of firearm owners” (hereinafter, “Firearm Owners’ Privacy Act”). CS/ CS/HB 155 (codified at Fla. Stats. §§ 790.338, 381.026, 456.072, 395.1055). The bill created Fla. Stat. § 790.338 , entitled “Medical privacy concerning firearms,” and amended other scattered statutes. Pursuant to § 790.338, licensed health care practitioners or facilities (collectively, “practitioners”) may not (i) intentionally record any disclosed information concerning firearm ownership in a patient’s medical record if the practitioner knows the inf...

...s not believe it is relevant, as long as she does not ask the patient any questions about firearm ownership or possession. The State presumably does not believe that providing such unsolicited information would be “unnecessarily harassing” under § 790.338(6)....

...3 (“Allegations that a physician merely made an inquiry regarding firearm ownership or had a discussion about firearm safety would be legally insufficient [for a complaint before the Department of Health] because neither act is prohibited under the law.”). However, §§ 790.338(8) and 456.072(l)(mm) provide that a violation of the inquiry restriction provision constitutes grounds for disciplinary action against the practitioner....

...10-11; Goodman Decl. 10. Although the State interprets several of the Firearm Owners’ Privacy Act’s provisions as hortatory in nature, the law provides for penalties in the form of disciplinary action when a practitioner violates any provision of § 790.338. See' § 790.338(8); 456.072(l)(mm)....

...The Florida legislature specifically identified policies encouraging and recommending that physicians ask about firearms as an aspect of the problem that the law would rectify. The title of the bill — “An Act relating to the privacy of firearm owners” — and the title of § 790.338 — “Medical privacy concerning firearms” — both suggest that the focus of the law is directed at only one subject matter — firearm ownership....

...ly to prevail unless the Government has shown that [Plaintiffs’] proposed less restrictive alternative are less effective than [enforcing the law].”). The recordkeeping, inquiry restriction, anti-harassment, and anti-discrimination provisions in § 790.338 do not withstand strict scrutiny....

...h information. The State does not provide any argument or evidence to suggest that Plaintiffs’ proposed least restrictive alternative would be less effective in protecting patients from forced disclosure of information regarding firearm ownership. Section 790.338(4) already provides that a patient may decline to answer questions about firearm ownership....

...al, gender, or religious intolerance.” Id. at 393-94 , 112 S.Ct. 2538 . Here, the State has proscribed harassment and discrimination with respect to the subject of firearm ownership only. For example, a practitioner would remain in compliance with § 790.338 if she harassed or discriminated against a patient because of her use of alcohol or tobacco, or her sexual behavior....

...This factor weighs in Plaintiffs’ favor. TV. CONCLUSION Each of the factors for a preliminary injunction weighs in Plaintiffs’ favor. For that reason, the Plaintiffs’ Motion for Preliminary Injunction (ECF No. 16) is GRANTED. The State is preliminarily enjoined from enforcing § 790.338(1), (2), (5), and (6). 8 The State is also preliminarily enjoined from enforcing § 790.338(8), to the extent that it provides that violations of § 790.338(1) and (2) constitute grounds for disciplinary action. The State is further preliminarily enjoined from enforcing § 456.072(l)(mm), to the extent that it provides that violations of § 790.338(1), (2), (5), and (6) shall constitute grounds for which disciplinary actions specified under § 456.072(2) may be taken. . The law also contains provisions governing emergency medical technicians or paramedics and insurance companies, and provides that a patient may refuse to answer questions regarding firearms. See § 790.338(3), (4), *1372 (7)....

...d therefore cannot be the basis for imposing disciplinary sanctions.” NRA Br. 3 (quoting United States v. Robinson, 922 F.2d 1531, 1534 (11th Cir.1991)). The basis for imposing sanctions for violations of the law does not come from the language in § 790.338(1)-(7), but from the language in § 790.338(8) and § 456.072(l)(mm), which expressly provide that violations of § 790.338 shall constitute grounds for disciplinary action....

...record-keeping by physicians on the sensitive issue of firearm ownership. The Act does not prevent physicians from speaking with patients about firearms generally. 1 2011 Fla. Laws 112 (codified at Fla. Stat. §§ 381.026, 456.072, 790.338). 4  Case: 12-14009 Date Filed: 07/28/2015 Page: 5 of 152 Nor does it prohibit specific inquiry or record-keeping about a patient’s firearm- ownership status when...

...mmary judgment in favor of Plaintiffs, and vacate the injunction against enforcement of the Act. I. 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 5  Case: 12-14009 Date Filed: 07/28/2015 Page: 6 of 152 Rights and Responsibilities, Fla....

...facilities (i) “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,” § 790.338(1); (ii) “shall respect a patient’s right to privacy and should refrain” from inquiring as to whether a patient or his or her 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,” § 790.338(2); (iii) “may not discriminate” against a patient on the basis of firearm ownership, § 790.338(5); and (iv) “should refrain from unnecessarily harassing a patient about firearm ownership,” § 790.338(6).3 3 The full text of the challenged provisions is as follows: (1) A health care practitioner licensed under chapter 456 [of the Florida Statutes] or a health care facility licensed under chapter 39...

...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)....

...e facility licensed under chapter 395 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. . . . Fla. Stat. § 790.338. The Act also contains related provisions concerning emergency medical personnel and insurance companies, affirming the right of patients to decline to answer physician questions, and affirming that the Act does not alter existing law regarding a physician’s authorization to choose patients. § 790.338(3), (4), (7)....

...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....

...We have jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1291. 4 The District Court granted the State’s motion for summary judgment with respect to the provisions of the Act that neither apply to practitioners nor regulate any conduct by physicians, § 790.338(3), (4), (7), finding that Plaintiffs lacked standing to challenge these provisions. Wollschlaeger v....

...ship. The State argues that physicians may engage in such conduct when it is relevant to patients’ care, and even when not relevant, the Act merely suggests that physicians “should refrain” from inquiring as to firearm ownership. Fla. Stat. § 790.338(2)....

...2010) (finding an attorney had standing to challenge the state bar’s attorney advertising rules when the consequence for noncompliance was disciplinary action, such as disbarment). 7 We acknowledge that the harassment and discrimination provisions of the Act in particular, § 790.338(5) and (6), prohibit conduct that may involve little to no speech. Nevertheless, Plaintiffs claim self-censorship as a result of all four challenged provisions of the Act....

...held that Plaintiffs’ claims are ripe for adjudication.9 IV. Now for the merits of Plaintiffs’ claims. Plaintiffs’ facial attacks on the Act arise under two separate provisions of the Constitution. First, they contend that § 790.338(1), (2), (5), (6)—the record-keeping, inquiry, discrimination, and 9 The State does not renew on appeal its argument that Plaintiffs’ claims are not ripe. Thus, we will not address the issue in detail....

...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)....

...that in good faith believes that this information is relevant to the patient’s medical 31  Case: 12-14009 Date Filed: 07/28/2015 Page: 32 of 152 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....

...ns 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)....

...Under the terms of the statute, physicians are only prohibited from harassing patients about firearm ownership when such harassment is unnecessary. 11 Plaintiffs have not cross-appealed the District Court’s holding that the discrimination provision, § 790.338(5), is not void for vagueness....

... Case: 12-14009 Date Filed: 07/28/2015 Page: 35 of 152 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)....

...scrutiny demanded by the First Amendment.” Lowe, 472 U.S. at 230, 105 S. Ct. at 2583 (White, J., concurring). 41  Case: 12-14009 Date Filed: 07/28/2015 Page: 42 of 152 The record-keeping provision of the Act, § 790.338(1), prohibits physicians from “intentionally enter[ing] any disclosed information concerning firearm ownership into the patient’s medical record” under certain circumstances....

...the expressive content contained in these entries would be understood by those viewing them. Therefore, we hold that the record-keeping provision regulates speech, and as such, must survive some level of First Amendment scrutiny. The inquiry provision of the Act, § 790.338(2), requires physicians to “refrain from making a written inquiry or asking questions concerning the ownership of a firearm . . . .” On its face, this provision also inhibits protected speech—inquiring about firearm ownership. It too must survive some level of First Amendment scrutiny. The discrimination provision of the Act, § 790.338(5), if not a horse of a different color, is at least a different shade steed....

...As such, it does not implicate, let alone offend, the First Amendment. 43  Case: 12-14009 Date Filed: 07/28/2015 Page: 44 of 152 The harassment provision of the Act, § 790.338(6), requires physicians to “refrain from unnecessarily harassing a patient about firearm ownership ....

...t it is primarily concerned with verbal harassment, since it defines a subject about which unnecessary harassment is prohibited. It is difficult to imagine how one would physically “harass[] a patient about firearm ownership.” See Fla. Stat. § 790.338(6) (emphasis added)....

...II. The Act contains four provisions at issue in this appeal. (1) The “record keeping provision” states that doctors cannot record firearm-related information in medical files that they “know” not to be “relevant.” Fla. Stat. § 790.338(1)....

...(2) The “inquiry provision” states that doctors “shall respect a patient’s right to privacy and should refrain” from asking patients about firearm ownership, unless the doctor believes in good faith that the information is medically relevant. Fla. Stat. § 790.338(2). (3) The “discrimination provision” states that practitioners “may not discriminate” against patients on the basis of firearm ownership. Fla. Stat. § 790.338(5). (4) Finally, the “harassment provision” states that practitioners “shall respect a patient’s legal right to own or possess a firearm and should refrain from unnecessarily harassing” patients about firearm ownership. Fla. Stat. § 790.338(6). This Act was passed in response to constituent complaints about the manner and extent to which doctors were discussing firearm ownership with patients. Specifically, as the State explains: [A]ctual discrimination exper...

...Act, that this provision bars doctors from declining to treat a patient who refuses to answer questions regarding firearm ownership. The Act explicitly affords doctors the continued right to refuse to treat such patients, however, see Fla. Stat. § 790.338(4), so the Legislature apparently intended to prevent other forms of discrimination when it passed the Act....

...earms. Without the Act, doctors are free to ask firearm-related questions, and people who refuse to answer such questions may be denied care as a result. With the Act, people who refuse to answer questions may still be denied care, see Fla. Stat. § 790.338(4), but firearm-related questions will be asked very rarely, giving doctors fewer occasions to find out that patients would be non-cooperative and thus fewer occasions to deny care on this basis....

...18 A better tailored provision would allow physicians to inquire and simply require them to respect their patients’ decision to decline to answer. But the Act does the opposite. It allows doctors to refuse to see patients who decline to answer. See Fla. Stat. § 790.338(4)....

...preventing that type of discrimination against firearm owners because those examples do not constitute discrimination against firearm owners. And even if they did, the Act expressly allows doctors to turn away patients who refuse to answer questions, see Fla. Stat. § 790.338(4), so it cannot be justified as an effort to eliminate that form of discrimination, either....

...Governor also es- tablishes that section 381.00316(1) regulates non-expressive con- duct. In that decision, we considered a Florida statute that “prohib- its discrimination ‘against a patient based solely’ on his or her own- ership and possession of a firearm.” 848 F.3d at 1317 (quoting FLA. STAT. ANN. § 790.338(5))....

...8  USCA11 Case: 19-10604 Date Filed: 11/20/2020 Page: 9 of 47 ammunition by the patient.” See United States v. Stevens, 559 U.S. 460, 464 (2010); Wollschlaeger, 848 F.3d at 1303 (quoting Fla. Stat. § 790.338(2) (2011)). If adorable videos of puppies are allowed and horrifying videos of puppy abuse are not, that restriction is based on content, no matter how desirable it may be....

...The Act simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care. It is 1 Act of April 26, 2011, 2011 Fla. Laws 112 (codified at Fla. Stat. §§ 381.026, 456.072, 790.338). 4  Case: 12-14009 Date Filed: 07/25/2014 Page: 5 of 161 uncontroversial that a state may police the boundaries of good medical practice by routinely subjecting physici...

...mary judgment in favor of Plaintiffs, and vacate the injunction against enforcement of the Act. I. 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 5  Case: 12-14009 Date Filed: 07/25/2014 Page: 6 of 161 Rights and Responsibilities, Fla....

... Case: 12-14009 Date Filed: 07/25/2014 Page: 7 of 161 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,” § 790.338(1); (ii) “shall respect a patient’s right to privacy and should refrain” from inquiring as to whether a patient or his or her 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,” § 790.338(2); (iii) “may not discriminate” against a patient on the basis of firearm ownership, § 790.338(5); and (iv) “should refrain from unnecessarily harassing a patient about firearm ownership,” § 790.338(6).3 3 The full text of the challenged provisions is as follows: (1) A health care practitioner licensed under chapter 456 [of the Florida Statutes] or a health care facility licensed under chapter 395 [of the F...

...titutes grounds for disciplinary action under § 456.072(2). § 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.” § 790.338(8). Thus, if the Board of Medicine of the Florida Department of Health (the “Board”) finds that a practitioner has violated the Act, the practitioner faces disciplinary measures including fines, restriction of practice, return of fees, probation, and suspension or revocation of his or her medical license....

...Rules/Legislative Committee of the Board indicate that the Board is prepared to initiate disciplinary proceedings against a practitioner who violates the Act, stating refrain from unnecessarily harassing a patient about firearm ownership during an examination. . . . Fla. Stat. § 790.338. The Act also contains related provisions concerning emergency medical personnel and insurance companies, affirming the right of patients to decline to answer physician questions, and affirming that the Act does not alter existing law regarding a physician’s authorization to choose patients. § 790.338(3), (4), (7)....

...record-keeping, discrimination, and harassment provisions of the Act, together with the provisions providing for discipline of practitioners who violate the Act. Wollschlaeger v. Farmer, 814 F. Supp. 2d 1367, 1384 (S.D. Fla. 2011) (citing §§ 456.072(1)(nn), (2), 790.338(1), (2), (5), (6), (8)). On June 2, 2012, the District Court permanently enjoined enforcement of the inquiry, record-keeping, discrimination, and harassment provisions of the Act— 9 ...

...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) (citing §§ 456.072(1)(nn), (2), 790.338(1), (2), (5), (6), (8)). The District Court found that Plaintiffs had standing to sue because Plaintiffs were engaging in self-censorship to avoid potential disciplinary action, which constituted a cognizable injury-in-fact that was fairly traceable to the Act and redressable by injunction....

...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 ground 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. 4 The District Court granted the State’s motion for summary judgment with respect to the provisions of the Act that neither apply to practitioners nor regulate any conduct by practitioners, § 790.338(3), (4), (7), finding that Plaintiffs’ lacked standing to challenge these provisions. Wollschlaeger, 880 F....

...concerning patients’ firearm ownership. The State argues that physicians may engage in such conduct when it is relevant to patients’ care, and even when not relevant, the Act merely suggests that physicians “should refrain” from inquiring as to firearm ownership. § 790.338(2)....

...See Harrell, 608 F.3d at 1248, 1260 (finding an attorney had standing to challenge the state bar’s attorney advertising rules, when the consequence for noncompliance was disciplinary action, such as disbarment). 7 We acknowledge that the harassment and discrimination provisions of the Act in particular, § 790.338(5) and (6), prohibit conduct that may involve little to no speech. Nevertheless, Plaintiffs claim self-censorship as a result of all four challenged provisions of the Act....

...Ct. at 2867, 2875. 41  Case: 12-14009 Date Filed: 07/25/2014 Page: 42 of 161 protected activity under the First Amendment.” Id. at 1191 (majority opinion) (internal quotation marks omitted). Insofar as the inquiry provision of the Act, § 790.338(2), regulates physician speech, it does so where the “personal nexus between professional and client” is perhaps at its most significant: within the confines of the physician’s examination room, where the physician exercises his o...

...y “as part of the practice of medicine, subject to reasonable licensing and regulation,” and does not offend the First Amendment. See Casey, 505 U.S. at 884, 112 S. Ct. at 2824 (plurality opinion). The Act’s record-keeping provision, § 790.338(1), is similarly a valid regulation of professional conduct....

...Any burden the record-keeping provision may place on physicians’ ability to create information in the form of medical records or to communicate such information to other health care providers is incidental to the Act’s regulation of the practice of medicine. The Act’s discrimination provision, § 790.338(5), also regulates professional conduct within the physician-patient relationship....

...Thus, the discrimination provision is also a valid regulation of professional conduct that only incidentally—if at all— affects physician speech. 45  Case: 12-14009 Date Filed: 07/25/2014 Page: 46 of 161 The Act’s harassment provision, § 790.338(6), similarly targets professional conduct within the physician-patient relationship....

...raises special First Amendment concerns because of its obvious chilling effect on free 58  Case: 12-14009 Date Filed: 07/25/2014 Page: 59 of 161 Plaintiffs argue that the record-keeping and inquiry provisions of the Act, § 790.338(1), (2), are vague because the Act does not provide sufficient notice as to when record-keeping or inquiry regarding firearms is “relevant” to medical care or safety....

...record information regarding firearms whenever doing so would be part of the practice of good medicine. For example, under the record-keeping provision, the Act prohibits recordation of firearm information only if the physician “knows” that the information is not relevant. § 790.338(1)....

...safety of others. Therefore, the record-keeping provision is not vague. The key to the inquiry provision’s relevancy clause is that a physician must believe in “good faith” that firearm ownership information is relevant to medical care or safety. § 790.338(2)....

...care or safety, he or she would not be making a “good faith” inquiry, and so the Act plainly directs him to refrain from inquiring. Thus, the inquiry provision is not vague. Plaintiffs argue that the discrimination provision of the Act, § 790.338(5), is vague because the Act does not define “discrimination.” Plaintiffs point out that, 61  Case: 12-14009 Date Filed: 07/25/2014 Page: 62 of 161 given the...

...patient’s refusal to answer questions about firearm ownership, but that another, unchallenged provision of the Act makes it explicit that the Act does not alter the rule that a physician is free to cease providing services to a patient for any reason. See § 790.338(4) (“A patient’s decision not to answer a question relating to the presence or ownership of a firearm does not alter existing law regarding a physician’s authorization to choose his or her patients.”)....

...I. The Act contains four provisions at issue in this appeal. (1) The “record keeping provision” states that doctors cannot record firearm-related information in medical files that they “know” not to be “relevant.” Fla. Stat. § 790.338(1)....

...(2) The “inquiry provision” states that doctors “shall respect a patient’s right to privacy and should refrain” from asking patients about firearm ownership, unless the doctor believes in good faith that the information is medically relevant. Fla. Stat. § 790.338(2). (3) The “discrimination provision” states that practitioners “may not discriminate” against patients on the basis of firearm ownership. Fla. Stat. § 790.338(5). (4) Finally, the “harassment provision” states that practitioners “shall respect a patient’s legal right to own or possess a firearm and should refrain from unnecessarily harassing” patients about firearm ownership. Fla. Stat. § 790.338(6). 70  Case: 12-14009 Date Filed: 07/25/2014 Page: 71 of 161 This Act was passed in response to constituent complaints about the manner and extent to which doctor...

...Act, that this provision bars doctors from declining to treat a patient who refuses to answer questions regarding firearm ownership. The Act explicitly affords doctors the continued right to refuse to treat such patients, however, see Fla. Stat. § 790.338(4), so the Legislature apparently intended to prevent other forms of discrimination when it passed the Act....

...earms. Without the Act, doctors are free to ask firearm-related questions, and people who refuse to answer such questions may be denied care as a result. With the Act, people who refuse to answer questions may still be denied care, see Fla. Stat. § 790.338(4), but firearm-related questions will be asked very rarely, giving doctors fewer occasions to find out that patients would be non-cooperative and thus fewer occasions to deny care on this basis....

...preventing that type of discrimination against firearm owners because those examples do not constitute discrimination against firearm owners. And even if they did, the Act expressly allows doctors to turn away patients who refuse to answer questions, see Fla. Stat. § 790.338(4), so it cannot be justified as an effort 28 There is no evidence in the record one way or the other on this point, but I suspect that doctors would turn patients away for refusing to answer questions on any topic....

...sking their patients about firearm and ammunition presence in the home unless the professional in “good faith believe[d] that this information [wa]s relevant to the patient’s medical care or safety, or the safety of oth- ers[.]” Fla. Stat. § 790.338(2)....

...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)....

...needs to stop.” Id. 6  Case: 12-14009 Date Filed: 02/16/2017 Page: 7 of 90 B 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....

...§ 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 7  Case: 12-14009 Date Filed: 02/16/2017 Page: 8 of 90 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 inqu...

...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 1 For convenience, Fla. Stat. § 790.338 is reproduced in the appendix. 8  Case: 12-14009 Date Filed: 02/16/2017 Page: 9 of 90 constitute grounds for which ....

...(“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 panel, see Wollschlaeger IV, 814 F.3d at 1175 n.7, we conclude that the plaintiffs have standing to challenge the anti-discrimination provision. 13  Case: 12-14009 Date Filed: 02/16/2017 Page: 14 of 90 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”)....

...State Bar of Ga., 150 F.3d 1333, 1344 (11th Cir. 1998), but that is not enough to sustain the three provisions at issue given other privacy protections in Florida law and the record before us. One of the FOPA provisions that has not been challenged, § 790.338(4), states in relevant part that patients “may decline to answer or provide any information regarding ownership of a firearm ....

...or the presence of a firearm in the domicile of the patient or a family member of the patient.” So any patients who have privacy concerns about information concerning their firearm ownership can simply refuse to answer questions on the topic. Because the state officials do not explain why § 790.338(4) is insufficient to protect the privacy of patients who do not want others (including doctors and medical professionals) to know that they own or possess a firearm, they have failed to meet their burden under heightened scrutiny....

...om terminating their professional relationships with patients who decline to answer questions about firearm ownership. That would certainly be a less speech- restrictive solution. But FOPA does the opposite, because the second sentence of § 790.338(4) provides that a “patient’s decision not to answer a question relating to the presence or ownership of a firearm does not alter existing law regarding a physician’s authorization to choose his or her patients.” At a hearing bef...

...ome, and holding that a father attending his son’s funeral was not captive to picketers of the ceremony). Second, doctors and patients undoubtedly engage in some conversations that are difficult and uncomfortable, and the first sentence of § 790.338(4) already gives patients the right to refuse to answer questions about firearm ownership....

...sufficient to satisfy heightened scrutiny. 38  Case: 12-14009 Date Filed: 02/16/2017 Page: 39 of 90 E The anti-discrimination provision, § 790.338(5), is of a slightly different caliber, as it prohibits discrimination “against a patient based solely” on his or her ownership and possession of a firearm. Although we have recognized that “anti- discrimination laws are [not] categorically immune from First Amendment challenge[s],” Booth v. Pasco County, 757 F.3d 1198, 1212 (11th Cir. 2014) (citation and internal quotation marks omitted), § 790.338(5) does not, on its face, implicate the spoken or written word. When a statute is “susceptible” to an interpretation that avoids constitutional difficulties, that is the reading we must adopt....

...ailing to return messages, charging more for the same services, declining reasonable appointment times, not providing test results on a timely basis, or delaying treatment because a patient (or a parent of a patient) owns firearms. When § 790.338(5) is limited in this way, there is no First Amendment problem, as the plaintiffs conceded at oral argument....

...harassment provisions violate the First Amendment, and that the anti- discrimination provision, as construed, does not. Our ruling therefore does not affect five provisions of FOPA: the provision relating to firearm inquiries by emergency medical technicians and paramedics, § 790.338(3); the provision allowing patients to decline to answer questions or provide information about firearm ownership but explaining that a patient’s decision not to answer such questions “does not alter existing law regarding a physician’s authorization to choose his or her patients,” § 790.338(4); the provision prohibiting discrimination, § 790.338(5); the provision prohibiting insurers from denying coverage, increasing premiums, and otherwise discriminating against an applicant or insured based on the lawful ownership of firearms or ammunition, but allowing insurers to consider the fair market value of firearms or ammunition in setting premiums for scheduled personal property coverage, § 790.338(7); and the provision stating that violations of subsections (1)–(4) constitute grounds for disciplinary action, § 790.338(8). It is our “affirmative duty to preserve the validity of legislative enactments when it is at all possible to do so,” Coral Springs St....

...“We owe the work of the elected representatives of the people of Florida respect[,] and we will invalidate no more of [FOPA] than we must.” Frazier ex rel. Frazier v. Winn, 535 F.3d 1279, 1283 (11th Cir. 2008). We therefore sever the record-keeping (§ 790.338(1)), inquiry (§ 790.338(2)), and anti-harassment 42  Case: 12-14009 Date Filed: 02/16/2017 Page: 43 of 90 (§ 790.338(6)) provisions of FOPA and permanently enjoin their enforcement....

...The district court’s judgment is affirmed in part and reversed in part, and the case is remanded so that the judgment and permanent injunction can be amended in accordance with this opinion. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 8 Obviously, the portion of § 790.338(8) providing that violations of the record-keeping and inquiry provisions constitute grounds for disciplinary action no longer has any effect. 43  Case: 12-14009 Date Filed: 02/16/2017 Page: 44 of 90 MARCUS, Circuit Judge: The Court has correctly determined that the record-keeping, inquiry, and anti-harassment provisions of Florida’s Firearm Owners’ Privacy Act (FOPA), Fla. Stat. § 790.338(1)–(2), (6), plainly target core First Amendment speech....

...Because the State has failed to demonstrate that these provisions are narrowly drawn to directly and materially advance a substantial government interest, they cannot withstand heightened scrutiny. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995). The anti-harassment provision, Fla. Stat. § 790.338(6), also suffers from a second constitutional infirmity. This provision says that health-care practitioners “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.” Fla. Stat. § 790.338(6)....

...Both of these provisions restrict harassment by providing some guidance regarding the specific conduct or speech that is banned. Thus, “harassment” has a common meaning standing alone, and laws proscribing harassing behavior can be further delimited in scope through context and formal definitions. Had § 790.338(6) simply banned “harassment about firearm ownership during an examination,” our review would have revealed poor tailoring and inadequate state interests as the sole causes of its constitutional demise....

...the term according to its common usage, the State takes the plain word and renders it incomprehensible by appending a wholly nebulous adverb. Doctors are to refrain from “unnecessarily harassing” their patients about firearm ownership and safety. Fla. Stat. § 790.338(6)....

...This locution allows that some harassment may be permissible or even necessary. Indeed, we expect doctors to doggedly exhort unhealthy patients to exercise more, eat less, or stop smoking, even when such admonishments may “annoy persistently.” Section 790.338(6) must -- but does not -- provide doctors with fair notice regarding either the level of harassment that may be permitted as a necessary element of medical care or the point at which harassment metamorphoses into illegal activity....

...2015). But this interpretation stands in stark contrast to the plain text of the statute: “A health care practitioner . . . 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.” Fla. Stat. § 790.338(6). While the inquiry provision allows a doctor to ask about firearm ownership and safety if he “in good faith” believes the questions to be “relevant to the patient’s medical care or safety,” Fla. Stat. § 790.338(2), this safe harbor is notably absent from the anti-harassment provision....

...harassment 3 provisions of the Act constitute content-based regulations of speech specifically targeting medical professionals. Accordingly, these challenged provisions must survive some level of First Amendment scrutiny under the Free 1 Fla. Stat. § 790.338(1)–(2), (5), (6). 2 I join the majority’s extensive and well-reasoned finding that the group of physicians and physician-advocacy groups (the “Plaintiffs”) mounting a facial challenge to the Act have standing to pursue that challenge. Further, the majority correctly holds that the Act’s anti- discrimination provision, Fla. Stat. § 790.338(5), applies to non-expressive conduct, making that provision immune from the First Amendment challenge brought here. 3 The majority holds that the anti-harassment provision of the Act, Fla. Stat. § 790.338(6), is unconstitutionally vague....

...Amendment requires us to declare Florida’s well-considered legislative judgment unconstitutional. 88  Case: 12-14009 Date Filed: 02/16/2017 Page: 89 of 90 APPENDIX Fla. Stat. § 790.338....

...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. 1 2011 Fla. Laws 112 (codified at Fla. Stat. §§ 381.026, 456.072, 790.338). 4  Case: 12-14009 Date Filed: 12/14/2015 Page: 5 of 82 With this great authority comes great responsibility....

...judgment in favor of Plaintiffs, and vacate the injunction against enforcement of the Act. I. 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....

...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)....

...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)....

...facility licensed under chapter 395 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. . . . Fla. Stat. § 790.338. The Act also contains related provisions concerning emergency medical personnel and insurance companies, affirming the right of patients to decline to answer physician questions, and affirming that the Act does not alter existing law regarding a physician’s authorization to choose patients. Id. § 790.338(3), (4), (7)....

...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....

...“Summary judgment is appropriate when ‘there is no genuine issue of material fact and . . . the moving 4 The District Court granted the State’s motion for summary judgment with respect to the provisions of the Act that neither apply to practitioners nor regulate any conduct by physicians, § 790.338(3), (4), (7), finding that Plaintiffs lacked standing to challenge these provisions. Wollschlaeger, 880 F....

...ship. The State argues that physicians may engage in such conduct when it is relevant to patients’ care, and even when not relevant, the Act merely suggests that physicians “should refrain” from inquiring as to firearm ownership. Fla. Stat. § 790.338(2)....

...2010) (finding an attorney had standing to challenge the state bar’s attorney advertising rules when the consequence for noncompliance was disciplinary action, such as disbarment). 7 We acknowledge that the harassment and discrimination provisions of the Act in particular, § 790.338(5) and (6), prohibit conduct that may involve little to no speech. Nevertheless, Plaintiffs claim self-censorship as a result of all four challenged provisions of the Act....

...held that Plaintiffs’ claims are ripe for adjudication.9 IV. Now for the merits of Plaintiffs’ claims. Plaintiffs’ facial attacks on the Act arise under two separate provisions of the Constitution. First, they contend that § 790.338(1), (2), (5), and (6)—the record-keeping, inquiry, discrimination, and harassment provisions of the Act 10—impermissibly trench upon their rights under the First Amendment....

...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)....

...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 c...

...ns 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)....

...relevance—the harassment provision flips this formula, imposing a relatively high bar before permitting the speech. Harassment about firearm ownership is 11 Plaintiffs have not cross-appealed the District Court’s holding that the discrimination provision, § 790.338(5), is not void for vagueness....

...h 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)....

...ct on speech and a law regulating protected speech, which “must survive the level of scrutiny demanded by the First Amendment.” Lowe, 472 U.S. at 230, 105 S. Ct. at 2583 (White, J., concurring). The record-keeping provision of the Act, § 790.338(1), prohibits physicians from “intentionally enter[ing] any disclosed information concerning firearm ownership into the patient’s medical record” under certain circumstances....

...the expressive content contained in these entries would be understood by those viewing them. Therefore, we hold that the record-keeping provision regulates speech, and as such, must survive some level of First Amendment scrutiny. The inquiry provision of the Act, § 790.338(2), requires physicians to “refrain from making a written inquiry or asking questions concerning the ownership of a firearm . . . .” On its face, this provision also inhibits protected speech—inquiring about firearm ownership. It too must survive some level of First Amendment scrutiny. The discrimination provision of the Act, § 790.338(5), if not a horse of a different color, is at least a steed of a different shade....

...Especially in light of the facial nature of Plaintiffs’ challenge, we hold that the discrimination provision is a regulation of conduct with only an incidental effect on speech. As such, it does not implicate, let alone offend, the First Amendment. The harassment provision of the Act, § 790.338(6), requires physicians to “refrain from unnecessarily harassing a patient about firearm ownership ....

...t it is primarily concerned with verbal harassment, since it defines a subject about which unnecessary harassment is prohibited. It is difficult to imagine how one would physically “harass[] a patient about firearm ownership.” See Fla. Stat. § 790.338(6) (emphasis added)....

...confidentiality of their status as firearm owners if information about it is simply not collected at all. Finally, Plaintiffs contend that the Act is not narrowly tailored because the problem the legislature seeks to cure is fully protected by Fla. Stat. § 790.338(4), which provides that patients may decline to answer questions about their firearm ownership....