Eleventh Circuit Court of Appeals Strikes Down Key Provisions of Florida Firearm Owners Protection Act

In The News
February 16, 2017

On February 16, the full Eleventh Circuit Court of Appeals in Atlanta issued a decision striking down key provisions of a Florida law intended to restrict 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, the Florida Firearm Owners Protection Act (FOPA), a 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 plaintiffs had prevailed in the District Court, but a divided panel of the Eleventh Circuit Court of Appeals voted to uphold the law. The same divided panel twice revised its opinion in response to Ropes & Gray’s petitions for rehearing. In early 2016, the Eleventh Circuit granted Ropes & Gray’s third request for rehearing en banc and the case was argued before the full Court in June 2016. 

In its decision, the full Eleventh Circuit agreed with the District Court that three of the law’s provisions—the anti-recording, anti-inquiry, and anti-harassment provisions—were content-based restrictions on speech that violated the First Amendment. The Court found a fourth provision—the anti-discrimination provision—constitutional, but only after very narrowly construing it to apply only to non-expressive conduct. The Court severed the unconstitutional provisions from the statute.

“This decision is critical to the health and safety of Florida families. It makes clear that the First Amendment does not allow the government to interfere with a doctor providing the best medical advice to his or her patient,” Doug Hallward-Driemeier, partner, Ropes & Gray, who represents the plaintiffs. “We applaud the common sense application of the First Amendment in the Eleventh Circuit’s new decision.”

The Ropes & Gray team has been led by Mr. Hallward-Driemeier and business & securities litigation partner Richard Batchelder. 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.