I’ve written before about Wollschlaeger v. Governor, the case dealing with Florida’s law preventing doctors from making certain inquiries of patients regarding firearms ownership. As I said at the last go-round, the 11th Circuit decision is a mess, finding the law constitutional – despite the obvious limitation on professional speech – under an intermediate scrutiny standard.
Well, now they’ve gone and made it messier. Reconsidering the decision on the court’s own motion, an 11th Circuit panel has now issued a decision that passes on determining what standard should apply by breezily concluding that Florida’s law survives even strict scrutiny.
That’s pretty crazy. Strict scrutiny is a really high bar to clear; content-based speech regulations almost never get there. And they don’t get there in this nutty of a way, with the court’s leading argument being that the law preserves the Second Amendment rights of Floridians from infringement by doctors.
Doctors aren’t state actors, and they’ve got no authority (outside of super-edge-case commitment scenarios) to do the first thing about anyone’s guns. So this “protect the Second Amendment” business is just baffling as a justification for regulation.
The case does include a nice, thorough discussion of occupational speech regulation and why it is so unsettled from a constitutional perspective. It’s almost as if the court was about ready to follow that with renewed adoption of the intermediate scrutiny standard for occupational speech regulation, but wimped out in the end.
There is a silver lining: this is one more reason for the Supreme Court to take up the issue of occupational speech regulation, and put to bed once and for all what the proper test for such restrictions should be.
Updated 3/2/16: The 11th Circuit has agreed to rehear the case en banc, so this decision has been vacated.