Thursday, February 16, 2017

En banc 11th Circuit rules in "Docs v. Glocks" case

The en banc 11th Circuit opinion in the "Docs v. Glocks" case is here.  There are two majority opinions for the en banc Court, one by Judge Jordan and one by Judge Marcus. Judge Jordan’s opinion is joined by Chief Judge Ed Carnes and Judges Hull, Marcus, William Pryor, Martin, Rosenbaum, Julie Carnes, and Jill Pryor. Judge Marcus’ opinion is joined by Judges Hull, Wilson, Martin, Jordan, Rosenbaum, and Jill Pryor.

Judge Jordan's opinion starts this way:
Despite its majestic brevity—or maybe because of it—the freedom of speech clause of the First Amendment sometimes proves difficult to apply. See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment 5 (2015) (“Reading the First Amendment isn’t easy.”); Saxe v. State College Area Sch. Dist., 240 F.3d 200, 218 (3d Cir. 2001) (Rendell, J., concurring) (“[T]here are no easy ways in the complex area of First Amendment jurisprudence.”). Yet certain First Amendment principles can be applied with reasonable consistency, and one of them is that, subject to limited exceptions, “[c]ontent-based regulations [of speech] are presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
This particular principle looms large in this case, which concerns certain provisions of Florida’s Firearms Owners’ Privacy Act, Chapter 2011–112, Laws of Florida (codified at Fla. Stat. §§ 790.338, 456.072, 395.1055, & 381.026). And that is because some of FOPA’s provisions regulate speech on the basis of content, restricting (and providing disciplinary sanctions for) speech by doctors and medical professionals on the subject of firearm ownership.
Shortly after FOPA was enacted in 2011, a number of doctors and medical organizations filed suit in federal court against various Florida officials, challenging some of the Act’s provisions as unconstitutional. Ruling on cross-motions for summary judgment, the district court held that FOPA’s record-keeping, inquiry, anti-discrimination, and anti-harassment provisions violated the First and Fourteenth Amendments, and permanently enjoined their enforcement. See Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251 (S.D. Fla. 2012) (Wollschlaeger I). The state officials appealed, and a divided panel of this court issued three opinions—each using a different First Amendment standard of review—upholding the challenged provisions of FOPA. See Wollschlaeger v. Governor of Fla., 760 F.3d 1195 (11th Cir. 2014) (Wollschlaeger II); Wollschlaeger v. Governor of Fla., 797 F.3d 859 (11th Cir. 2015) (Wollschlaeger III); Wollschlaeger v. Governor of Fla., 814 F.3d 1159 (11th Cir. 2015) (Wollschlaeger IV). We voted to rehear the case en banc and heard oral argument in June of 2016.
Exercising plenary review, see ACLU of Fla., Inc. v. Miami-Dade County Sch. Bd., 557 F.3d 1177, 1206 (11th Cir. 2009), and applying heightened scrutiny as articulated in Sorrell v. IMS Health, Inc., 564 U.S. 552, 563–67, 571–72 (2011), we agree with the district court that FOPA’s content-based restrictions—the record-keeping, inquiry, and anti-harassment provisions—violate the First Amendment as it applies to the states. See U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech[.]”); Stromberg v. California, 283 U.S. 359, 368 (1931) (“[T]he conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech.”). And because these three provisions do not survive heightened scrutiny under Sorrell, we need not address whether strict scrutiny should apply to them. We also conclude, this time contrary to the district court, that FOPA’s anti-discrimination provision—as construed to apply to certain conduct by doctors and medical professionals—is not unconstitutional. Finally, we concur with the district court’s assessment that the unconstitutional provisions of FOPA can be severed from the rest of the Act.
 And Judge Marcus starts this way:

The Court has correctly determined that the record-keeping, inquiry, and anti-harassment provisions of Florida’s Firearm Owners’ Privacy Act (FOPA), Fla. Stat. § 790.338(1)–(2), (6), plainly target core First Amendment speech. Because the State has failed to demonstrate that these provisions are narrowly drawn to directly and materially advance a substantial government interest, they cannot withstand heightened scrutiny. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995).

Judge Tjoflat dissented.

3 comments:

Anonymous said...

No coverage of baseball trial?

Anonymous said...

Behold, the power of the gun lobby!

Isaac Lew said...

These en banc opinions reveal how a district judge sitting by designation can (almost) alter a circuit court's precedent when in reality only *one* of the eleven active judges in the Eleventh Circuit voted to affirm Florida's law. I'm not intimately familiar the process for assigning vising judges to sit by designation under 28 U.S.C. § 292. Is it done randomly as in all other appeals? Or does the Chief Judge specifically assign a visiting judge to a particular case?