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Monday, a three-judge U.S. Court of Appeals for the 11th Circuit panel handed down a third opinion inWollschlaeger v. Governor, the Florida “Docs vs. Glocks” case. Florida law limits doctors’ conversations with patients about guns. The first opinion in the case held that the law wasn’t really a speech restriction, because it just regulated the practice of medicine (a deeply unsound view, I think). The second opinion, issued after a petition for rehearing, changed course and held that the law was a speech restriction, but that — as a restriction on professional-client speech — it had to be judged under “intermediate scrutiny,” which it passed. (For more on professional-client speech, see item 2 in this post.)
Then the panel asked for further briefing in light of Reed v. Town of Gilbert (2015), a recent Supreme Court decision that had to do with content-based sign restrictions, but that the panel thought might be relevant to content-based restrictions more broadly, including restrictions on professional-client speech. Monday, the court concluded that, after Reed, such restrictions might be subject to strict scrutiny. But it didn’t decide whether that was so, or whether a more pro-government standard of review should be applied, because the panel concluded (by a 2-to-1 vote) that the Florida doctor speech restriction passed even strict scrutiny (usually a very hard standard to satisfy).
This, I think, is quite wrong — and because strict scrutiny is the standard for evaluating content-based speech restrictions generally, and not just doctor-patient or professional-client speech restrictions, the error risks undermining free speech rights more broadly. In fact, much of the argument that the 11th Circuit panel accepted is structurally very similar to arguments used for restrictions on “hate speech,” campus speech codes and the like. I hope the 11th Circuit reconsiders the matter en banc, and adopts the dissenting judge’s view; or, failing that, I hope the U.S. Supreme Court decides to hear the case.
