In a 2-1 decision, the Eleventh Circuit Court of Appeals upheld a Florida statute prohibiting doctors from asking about patients' gun ownership. The Eleventh Circuit's opinion reverses a controversial District Court decision -- known in the media as "Docs v. Glocks" -- that found the law unconstitutional.
The Firearm Owners Privacy Act, passed in 2011, prevents a physician from inquiring into a patient's firearm ownership unless that ownership is relevant to the patient's medical care. Violation of the law could lead to a physician's license being suspended or revoked, along with a $10,000 fine.
The statute followed an American Medical Association policy enactment encouraging doctors to talk to patients about firearms in homes with children, according to The Christian Science Monitor. Almost immediately after the law's passage, several doctors and medical organizations sued the state of Florida, alleging that the law infringed on their First Amendment free speech rights.
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1st Amendment Issue? What 1st Amendment Issue?
The majority insisted that the Act was a run-of-the-mill professional regulation, like many others. In fact, said the court, the law runs parallel to other AMA recommendations limiting the scope of doctor-patient discussions only to what is necessary.
The problem, the court recognized, lies in the gray area where it's unclear whether a patient's gun ownership is relevant to his or her medical issue. When this happens, a doctor must use his or her professional judgment, leading to the potential for a First Amendment problem.
Except that there is no First Amendment problem, the 11th Circuit explained. "We find that the Act is a valid regulation of professional conduct that has only an incidental effect on physicians' speech," the court said. Once again, there's heavy deference to the state when it comes to regulating professions; the court emphasized that the Act regulates the doctor's professional relationship with the patient, not the personal one. As a result, the case could be decided without resorting to a First Amendment analysis.
A Strong Dissent
Rather than viewing the Act as a reasonable professional regulation, Judge Charles Wilson's dissent characterized it as "a gag order" enacted "[i]n response to complaints by patients who found doctors' questioning and counseling on the subject of firearms to be irritating, offensive, and overly political."
In that vein, the dissent criticized the majority for a bait-and-switch, allowing essentially any speech made by a professional to be censored as long as the prohibition is characterized as a regulation of professional conduct. (It's also helpful that, by characterizing the Act as a conduct regulation, the majority is free from the harsh constraints of intermediate scrutiny.)
Expect that this case will eventually be appealed to the U.S. Supreme Court, which loves the First Amendment, except when it doesn't.
- Professional-Client Free Speech and The Medical Privacy Concerning Firearms Act (ABA Health eSource)
- Silencing the Science on Gun Research (The Journal of the American Medical Association)
- Snippets: Guns, Ginsburg, and NSA Litigation (FindLaw's U.S. Supreme Court Blog)
- There's No Second Amendment Right to Bear a Specific Arm (FindLaw's U.S. Fifth Circuit Blog)