11th Circuit Court of Appeals Grants Rehearing En Bancin Case Challenging Florida’s “Physician Gag” Law

On Feb. 3, the Eleventh Circuit Court of Appeals granted plaintiffs’ petition for rehearing en banc in the long-running Wollschlaeger v. Florida litigation, marking a significant step in this important First Amendment litigation. A group of doctors and medical organizations 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 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.  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, 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.  Today’s order from the En Banc Eleventh Circuit vacates the panel decision and sets the case for consideration by the full court.

Doug Hallward-Driemeier, who heads the Appellate and Supreme Court practice at Ropes & Gray and is lead counsel for the plaintiffs, said, in response to the Court’s order: “We are very happy that the Eleventh Circuit granted the petition for rehearing en banc, and we look forward to having our case considered by the full Eleventh Circuit. We believe that Judge Cook’s district court decision was the correct one: Florida’s law is inconsistent with the First Amendment because it singles out doctors’ speech about guns for restriction because the government disagrees with their message. That is precisely what the First Amendment protects us against.” 

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 plaintiffs are represented by appellate & Supreme Court partner Douglas Hallward-Driemeier, 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.