Ropes & Gray Argues Challenge to Florida’s “Physician Gag” Law Before Full 11th Circuit

In The News
June 21, 2016

On June 21, the Eleventh Circuit Court of Appeals in Atlanta heard arguments in the long-running challenge to a Florida law that restricts doctors’ speech about guns (Wollschlaeger v. Florida).  A Ropes & Gray team represents the plaintiffs, a group of doctors and medical organizations that filed suit in 2011 challenging, on First Amendment grounds, a Florida law that generally prohibits doctors from asking their patients about the presence of guns in their homes or recording information about gun ownership in patients’ medical files. The district court agreed with the plaintiffs that Florida’s Firearm Owners Privacy Act (FOPA) violated the First Amendment rights of doctors and patients and struck down the law in 2012.

On appeal, however, a divided panel of the Eleventh Circuit Court of Appeals upheld the law, over a vigorous dissent, on the ground that doctors’ professional communications with their patients were not entitled to First Amendment protection. The plaintiffs asked the full court of appeals to reconsider the panel’s hearing, and, in an unusual procedural development, the panel majority twice withdrew its opinion and issued revised opinions in an effort to address the problems identified in the petition for rehearing. In their most recent petition for rehearing, the plaintiffs stressed that the Florida law was specifically designed to silence one group of speakers—doctors—because of the legislature’s disagreement with their message, something that the Supreme Court has recently reiterated is presumptively unconstitutional. Florida has never articulated any compelling reason for restricting doctors’ ability to share with their patients the doctors’ best medical advice. A February 2016 order from the en banc Eleventh Circuit vacated the panel decision and set the case for consideration by the full court. Nine sets of organizations — including the American Bar Association, American Medical Association, ACLU and gun violence prevention groups — filed amicus briefs in support of the plaintiff-appellees.

The district court’s order forbidding Florida from enforcing FOPA remains in effect, so doctors remain free to provide their patients with advice about gun ownership and safety that they deem appropriate.

“The issues presented in this case are fundamentally about free speech. It’s about a doctor’s ability to counsel patients freely without the state inserting itself into that relationship,” said Ropes & Gray appellate & Supreme Court partner Douglas Hallward-Driemeier, who represents the plaintiffs. “The Florida Firearm Owners Privacy Act interferes with doctors’ ability to counsel patients about the risks associated with guns in the home, and it prevents doctors from advising patients regarding safe practices for reducing those risks. Discussing gun safety with patients is no different than discussing with them a range of private topics that come up in an examination room.”

The Ropes & Gray team is being led by Mr. Hallward-Driemeier, business & securities litigation partner Richard Batchelder, and business & securities litigation associate Mariel Goetz. The plaintiffs are also represented by Edward Mullins of Astigarraga Davis Mullins & Grossman, P.A. and Jonathan Lowy of the Legal Action Project of the Brady Center to Prevent Gun Violence.