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Court holds ban on doctors’ gun discussions is unconstitutional

The Eleventh Circuit Court of Appeals, in a February 16 decision, issued what should be a definitive final ruling in a long-running battle over the state’s ban on physicians asking their patients about gun ownership. After several back-and-forth court decisions, the appellate court ruled the ban unconstitutional, saying that it improperly restricted the speech rights of physicians in the state.

(Wollschlaeger v. Governor of Florida)

In 2011, responding to a handful of anecdotal reports of doctors harassing patients about the dangers of gun ownership in homes with children, the Florida legislature passed a law that forbade physicians from discussing firearm ownership with their patients, with some exceptions. In response, a group of plaintiffs sued the state, seeking to overturn the law on First Amendment grounds.

A federal district court permanently enjoined enforcement of several important sections of the law. But, on appeal, a three-judge panel of the U.S, Court of Appeals for the Eleventh Circuit—in three successive decisions, each using a different standard of review for First Amendment issues—reversed the lower court and reinstated the law. The full court then voted to rehear the case.

The practice of asking patients about the presence of firearms in the home and of warning patients of the risks of unsecured firearms to children has a history dating back to at least the 1980s, when the American Medical Association enacted a policy explicitly encouraging its members to broach the topic with their patients. The American Academy of Pediatrics and the American Academy of Family Physicians also promote the practice.

Four provisions of the new law were at issue in the Eleventh Circuit case: a ban on creating a record of any disclosure about firearm ownership by a patient if the “information is not relevant to the patient’s medical care or safety, or the safety of others;” a ban on asking about firearm ownership unless the physician has a “good faith” belief that the question is relevant to the safety of the patient or others; the prohibition of discrimination by a physician based on the firearm ownership of a patient; and a ban on harassment of patients about firearm ownership.

Although the relevancy provision theoretically protects doctors who have a supportable belief about the possibility of danger, the ban effectively prevented general inquiries, such as a question on a new- patient intake form. Violations of the law are punishable as professional disciplinary offenses.

The full court of appeals, like the district court and the panel before it, held that the ban was, in fact, a ban on protected speech and required a higher level of scrutiny than a normal restriction on professional practice: “The record-keeping and inquiry provisions expressly limit the ability of certain speakers—doctors and medical professionals—to write and speak about a certain topic—the ownership of firearms—and thereby restrict their ability to communicate and/or convey a message. As a result, there can be no doubt that these provisions trigger First Amendment scrutiny.”

The court also rejected a First Amendment approach that would have labeled the prohibited firearm inquiries as merely “conduct” or “professional speech,” so that curbs on it would be deserving of a lower “rational basis” standard of First Amendment scrutiny.

“If rationality were the standard,” wrote Judge Adalberto Jordan, “the government could—based on its disagreement with the message being conveyed—easily tell architects that they cannot propose buildings in the style of I.M. Pei, or general contractors that they cannot suggest the use of cheaper foreign steel in construction projects, or accountants that they cannot discuss legal tax avoidance techniques, and so on.”

Applying the standard of “heightened scrutiny”—which requires that the state must show that a law “directly advances a substantial governmental interest”— the court questioned the strength of the state’s evidence. “Here, the Florida Legislature, in enacting [the law], relied on six anecdotes and nothing more,” wrote Judge Jordan. “There was no other evidence, empirical or otherwise, presented to or cited by the Florida Legislature.”

If the gun-discussion-ban were allowed to stand, the court said, “The government could—based on its disagreement with the message being conveyed—easily tell architects that they cannot propose buildings in the style of I.M. Pei, or general contractors that they cannot suggest the use of cheaper foreign steel in construction projects, or accountants that they cannot discuss legal tax avoidance techniques, and so on.”

The court addressed the concerns proffered by the state to justify the ban. The first, to protect Floridians’ Second Amendment rights to bear arms from “private encumbrances,” was supported by “no evidence whatsoever,” wrote Jordan.

“This evidentiary void is not surprising because doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of firearms by patients . . . The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right.”

The court was also skeptical of another proffered justification, the protection of patients’ privacy. Judge Jordan pointed out that any patients concerned about their privacy did not have to answer questions regarding their firearm ownership, and that medical records were already protected from disclosure.

The state also offered its significant interest in regulating the professions as a motive for the ban, but Judge Jordan wrote that “there is no claim, much less any evidence, that routine questions to patients about the ownership of firearms are medically inappropriate, ethically problematic, or practically ineffective. Nor is there any contention . . . that blanket questioning on the topic of firearm ownership is leading to bad, unsound, or dangerous medical advice.”

And, instead of addressing claims that some patients had been given false information regarding firearm disclosure and Medicaid benefits by prohibiting that false speech, the Judge noted that the legislature chose “to pass provisions broadly restricting truthful speech based on content.”

While the speech restrictions were struck down, some of the law did survive. One provision of the statute—the prohibition of discrimination against firearm owners—did meet constitutional standards. Because the provision could be applied to many types of behavior—refusing to schedule appointments, not returning messages—that could not be considered speech, the provision could be enforced without running afoul of the First Amendment. Several other provisions of the law were not being challenged before the Eleventh Circuit; the court ruled that the offending sections could be severed from the remainder, leaving the rest of the law in force.