Free speech? Or professional conduct regulation? The Florida law at issue prohibits doctors from asking a patient about his or her guns, unless gun ownership is relevant to the patient's medical care. A violation can lead to a suspended or revoked license to practice medicine, along with a fine of up to $10,000.
The doctors sued, claiming that it violated their First Amendment rights. But the Eleventh Circuit panel's majority disagreed, calling a permissible regulation of professional conduct.
Now the doctors are asking for an en banc rehearing, hoping that the larger court will agree with Judge Charles Wilson's dissent, where he called the law a "gag order."
Debate Rages On
The district court held that the law impermissibly restricted doctors' speech. The Eleventh Circuit panel disagreed, holding that there was no First Amendment problem at all, stating, "We find that the Act is a valid regulation of professional conduct that has only an incidental effect on physicians' speech."
And as a regulation of professional conduct, the law is nearly guaranteed to be allowable, as states are given great deference when regulating professions. Here, the majority felt that the law only restricted the doctor's professional relationship with patients, which allowed the court and the state to dodge any pesky First Amendment concerns.
Judge Wilson, as stated, disagreed. He waxed poetic about the slippery slope of classifying speech-affecting laws as professional conduct regulation, as doing so would virtually allow any speech to be silenced.
En Banc Shot
As expected, the doctors appealed, starting with a petition for rehearing en banc, according to the Daily Report. In their petition [PDF], the doctors argue that the panel's decision conflicted with U.S. Supreme Court precedent by holding that professional speech is not protected by the First Amendment. They also argue that the decision creates a new category of unprotected speech, one which risks the health and safety of Florida residents.
The doctors' petition echoes Judge Wilson's slippery slope, noting that under the majority's reasoning, the state could "prohibit doctors from discussing with patients the health risks of smoking or eating too much red meat" or "control lawyers' advice to their clients" because the majority classifies professional advice as "professional conduct" subject to regulation.
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