The Eleventh Circuit recently upheld Florida’s Firearm Owners’ Privacy Act, reversing the district court’s order granting summary judgment to a group of physicians and physician advocacy groups who challenged the law. In a 2-1 decision, the appellate court rejected the physicians’ arguments that the law interfered with their First Amendment rights to free speech, finding that the law is “a legitimate regulation of professional conduct” and that “any burden the Act places on physician speech is thus entirely incidental.”

The Firearm Owners’ Privacy Act, § 790.338(2), Fla. Stat., prohibits physicians from asking patients about their or their family members’ ownership of firearms or the presence of firearms in the patients’ or their family members’ homes, unless the physician has a good faith belief that such information is relevant to the patient’s medical care or safety or the safety of others. In the Eleventh Circuit’s order, written by Judge Gerald Bard Tjoflat and joined by United States District Judge L. Scott Coogler (sitting by designation), the majority equated this law with the state’s ability to govern the practice of medicine by subjecting physicians to malpractice liability or administrative discipline “for all manner of activity which the state deems bad medicine, much of which necessarily involves physicians speaking to patients.” In a strong dissent, Judge Charles R. Wilson called the law a “gag order” that violates the First Amendment by prohibiting or significantly chilling physicians from expressing their views and providing information to patients about the topic of firearms.

The physicians have indicated that they will request en banc reconsideration of the panel’s decision. The case is Wollschlaeger v. Governor of Florida, No. 12-14009, (July 25, 2014).