Court off target in upholding gun law :: 08/04/2015

Although a federal appeals court last week misfired in upholding Florida’s infamous “Docs vs. Glocks” law, the decision may trigger a needed review by the Supreme Court of government attempts to regulate professional speech.

A three-judge panel of the 11th U.S. Circuit Court of Appeals reversed an injunction  against the Firearm Owners’ Privacy Act, which was passed by the Legislature and signed into law by Gov. Rick Scott in 2011. The law prohibits physicians from asking their patients about whether they own guns and was a Republican- and National Rifle Association-led attempt to squelch doctors from lecturing parents about gun safety, which critics viewed as “public health,” “anti-gun” advocacy. Thus did the measure acquire the nickname “Docs vs. Glocks.”

An early version of the legislation called for imprisoning doctors for up to five years and fining them up to $5 million for asking questions about guns. Those extreme penalties later were reduced to a $10,000 fine and potential loss of medical license. In addition, an exception was made for doctors who believed that their questions about guns were relevant to a patient’s care or safety.

However, the watered-down version still constituted an unwarranted government intrusion on the doctor-patient relationship and a restriction of physicians’ First Amendment rights. Simply asking a question doesn’t infringe on a person’s Second Amendment rights (nor does criticism of exercising that right). Patients are free to decline to answer (or answer truthfully), and if they are offended by the query or the doctor’s views on gun ownership they can seek a new health care professional.

Nevertheless, the 11th Circuit upheld the law on the grounds that because governments license certain professional occupations, such as doctors and lawyers, they can regulate the content of the speech they provide to their clients. The two-judge majority ruled that Florida’s law is justified to protect patient privacy. That seems specious. Patients are not compelled to respond to a doctor’s questions, nor does anyone have a right not to be offended or made uncomfortable. So how is their privacy being violated?

Furthermore, if privacy truly was the principle the state was pursuing, why limit the law to firearms? Why not prohibit doctors from asking other invasive questions, such as about diet, sexual habits or child-rearing policies?

The state should have a better reason to restrict doctors’ free-speech rights other than “it may make some patients unhappy.” Unfortunately, although courts have upheld governments regulating professional-client speech, there is no common standard for doing so. Much First Amendment jurisprudence holds government to the highest standard of “strict scrutiny,” meaning a law must be narrowly tailored to serve a compelling governmental interest. However, cases involving professional-client speech — including “Docs vs. Glocks” — often have been decided using the lesser standard of “intermediate scrutiny,” whereby government can assert a substantial interest in support of its regulation and demonstrate that the restriction “directly and materially advances” that interest without being overbroad.

The dissenting judge in the “Docs vs. Glocks” case rejected the majority’s use of intermediate scrutiny, arguing that the state failed to demonstrate that patients’ privacy and Second Amendment rights were being violated.

The appellants can request a hearing before all the 11th Circuit judges. Such an en banc review at least would subject intermediate scrutiny to wider opinion. If a the split among justices widens, it could send the case to the Supreme Court, which needs to clarify when and how governments can restrict professional-client speech.

If a doctor injects too much politics into his medicine, that may be an issue for an ethics board to decide. It shouldn’t be grounds for government to pass laws that restrict speech.

http://www.news-journalonline.com/article/20150804/OPINION/150809876