Once again, the First Amendment appears to be under attack by a court system whose duty it is to protect our constitutional rights.
In the name of promoting public health, the American Medical Association has been advising doctors to ask their patients about firearms and "educate patients to the dangers of firearms to children." But many doctors in Florida have been hesitant about giving this medical advice due to a Florida law that became known as the "physician gag rule" because it punishes doctors for talking about guns.
Many of the provisions of this law were earlier deemed unconstitutional and struck down by the United States District Court for the Southern District of Florida. But now, the United States Court of Appeals for the Eleventh Circuit has overturned that lower court decision and has upheld the law in its entirety (Wollschlaeger v. Governor of Florida).
More below the fold.
As part of the practice of preventative care, many physicians routinely ask patients whether they own firearms—either verbally or via a screening questionnaire—and provide firearm safety counseling as part of a larger battery of questions and counseling regarding health and safety risks including, for example, poisonous chemicals in the home, alcohol, tobacco, and swimming pools.
The law, backed by the National Rifle Association, is known as Florida’s "Firearm Owners' Privacy Act." It imposes restrictions on when doctors can ask their patients about guns, and on keeping records in their patients’ charts about firearm ownership and safety. Doctors who are found to have violated these provisions risk sanctions or the loss of their license.
At least ten medical associations and the American Bar Association argued that the law should be struck down because doctors must be able to discuss safety topics freely in engaging in preventive care.
In an American Bar Association resolution opposing Florida’s law, the organization reasons, "Preventive care through safety counseling is a pillar of modern medicine, and is vitally important to the health and welfare of patients." Among other public health topics doctors may discuss with adult patients are alcohol and drug use, wearing bicycle helmets and seat belts, and storage of household toxins. Discussions of gun violence, also, may come into play, both for doctors advising parents on keeping their children safe, and psychiatrists concerned about the psychological well-being of their patients. The American Psychiatric Association has recommended that "health professionals and health systems should ask about firearm ownership whenever clinically appropriate in the judgment of the physician."
The doctor plaintiffs in this case had argued that they have a First Amendment right to discuss these issues with their patients, and a federal trial court agreed, reasoning that the Firearm Owners Privacy Act "chills practitioners’ speech in a way that impairs the provision of medical care and may ultimately harm the patient."
ThinkProgress
In its 2-1 decision, the three judge panel (U.S. Circuit Judge Gerald Tjoflat and U.S. District Judge L. Scott Coogler deciding, U.S. Circuit Judge Charles R. Wilson dissenting) determined that this speech is "professional in nature" and that it therefore has only an "incidental" impact on free speech. Since the law is limited to "harassing" or "unnecessary" speech, it shouldn't limit doctor remarks that are directly related to patients’ health.
Writing for the majority, Judge Tjoflat states:
The Act seeks to protect patients’ privacy by restricting irrelevant inquiry and record-keeping by physicians regarding firearms. The Act recognizes that when a patient enters a physician’s examination room, the patient is in a position of relative powerlessness. The patient must place his or her trust in the physician’s guidance, and submit to the physician’s authority. In order to protect patients, physicians have for millennia been subject to codes of conduct that define the practice of good medicine and affirm the responsibility physicians bear. In keeping with these traditional codes of conduct—which almost universally mandate respect for patient privacy—the Act simply acknowledges that the practice of good medicine does not require interrogation about irrelevant, private matters.
As such, we find that the Act is a legitimate regulation of professional conduct. The Act simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care. It is uncontroversial that a state may police the boundaries of good medical practice by routinely subjecting physicians to malpractice liability or administrative discipline for all manner of activity that the state deems bad medicine, much of which necessarily involves physicians speaking to patients. Although the Act singles out a particular subset of physician activity as a trigger for discipline, this does little to alter the analysis. Any burden the Act places on physician speech is thus entirely incidental. Plaintiffs remain free—as physicians always have been—to assert their First Amendment rights as an affirmative defense in any actions brought against them. But we will not, by striking down the Act, effectively hand Plaintiffs a declaration that such a defense will be successful. Furthermore, when the Act is properly understood as a regulation of physician conduct intended to protect patient privacy and curtail abuses of the physician-patient relationship, it becomes readily apparent from the language of the Act the type of conduct the Act prohibits. Accordingly, we reverse the District Court’s grant of summary judgment in favor of Plaintiffs, and vacate the injunction against enforcement of the Act.
In his lengthy and vehement dissent, Judge Wilson wrote:
Numerous medical organizations, including the American Medical Association (AMA), view firearm related deaths and injuries as a serious public health problem with particularly pernicious effects on children. These organizations believe that this public health problem can be alleviated by providing people, particularly children and their parents, with information about firearm safety. Accordingly, the AMA has, among other things, adopted a policy encouraging "members to inquire as to the presence of household firearms as a part of childproofing the home." Prevention of Firearm Accidents in Children, AMA Policy H-145.990. From the AMA’s perspective, this inquiry could not be more vital, as the policies are specifically designed to "reduce pediatric firearm morbidity and mortality." Id
Consistent with their beliefs about how best to address this public health problem, a number of Florida doctors, including plaintiffs, followed the AMA’s advice. They routinely spoke with patients about firearms, asking patients if firearms were present in the home in order to specifically tailor follow-up safety information. There is no doubt that many doctors genuinely believe that these conversations can help protect their patients and the public. Indeed, some doctors believed these conversations to be so important that they were willing to lose the business of patients who refused to engage.
In response to complaints by patients who found doctors’ questioning and counseling on the subject of firearms to be irritating, offensive, and overly political, Florida passed the Firearm Owners’ Privacy Act (Act). Simply put, the Act is a gag order that prevents doctors from even asking the first question in a conversation about firearms. The Act prohibits or significantly chills doctors from expressing their views and providing information to patients about one topic and one topic only, firearms.
Regardless of whether we agree with the message conveyed by doctors to patients about firearms, I think it is perfectly clear that doctors have a First Amendment right to convey that message. This Act significantly infringes upon that right, and it is therefore subject, at the very least, to intermediate scrutiny. Subject to this level of scrutiny, the Act cannot pass constitutional muster.
He went on to state:
Under the Act, doctors run the serious risk of being disciplined for harassing patients by pushing a "political agenda" if they speak (too forcefully or persistently) to their patients about schools of medical thought which deem firearm ownership relevant. Based on the Majority’s holding, doctors could be prohibited in the future from speaking to their patients about any particular topic, including the virtues of any school of medical thought, because such conversations are, strictly speaking, irrelevant to a patient’s care.
More disturbingly, under the rule announced by the Majority, any law burdening or eliminating speech will avoid First Amendment scrutiny so long as the law only applies within the confines of a one-on-one professional relationship. Then, according to the Majority, the speech is merely professional conduct and is entirely unprotected. States are left free to eliminate all irrelevant speech from a doctor’s office, all relevant speech from a doctor’s office, or just that speech which conflicts with the State’s preferred viewpoints. Under the Majority’s new exception to content-based restrictions, if the State believes that doctors are complaining to their patients that the Act itself is bad for public safety, the State could pass a law banning doctors from speaking about the Act to patients—so long as the State asserts that these complaints are irrelevant to medical care. Such a law would not be subject to First Amendment scrutiny. Nor would First Amendment scrutiny apply to an act barring doctors from talking to their patients about the Affordable Care Act, Medicare or Medicaid, medical malpractice laws, or any other topic whatsoever.
The majority countered this argument with:
Neither are we, as the Dissent suggests, creating a rule whereby any law burdening speech—such as a law barring doctors from discussing the Affordable Care Act, Medicare/Medicaid, medical malpractice laws, or any other topic—will avoid First Amendment scrutiny so long as the law applies within the confines of a one-on-one professional relationship. We note that the Act does not ban discussion of any topic, but only irrelevant inquiry, record-keeping, and related harassment and discrimination. In any case, we must decide this case based on the facts before us, and in doing so we need not—indeed, we must not—speculate as to the constitutionality of hypothetical laws.
Judge Wilson also stated:
Doctors asked patients about firearms in order to give specifically tailored—and thus more effective—firearm safety information. Indeed, amicus curiae supporting the State’s legislation explain that the Act is necessary because a "doctor’s questions can interfere with patients’ exercise of the right [to bear arms] by putting patients in a hesitant position where they question their ownership of firearms because of physician disapproval." That statement is staggering. It suggests that the perceived problem with doctors’ truthful, non-misleading message regarding firearm safety was that it was working, so the message was silenced. That is classic viewpoint discrimination.
With guns deaths on the verge of surpassing auto accidents as the
leading cause of death among young people, this has indeed become a serious public health issue. Curtailing or severely limiting doctors' ability to address this issue with their patients from a safety standpoint can only make matters worse.
Whether the plaintiffs in the case intend to pursue additional review before a full panel of the Eleventh Circuit or before the U.S. Supreme Court has yet to be announced.
