The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the 11th Circuit handed down a substantially revised opinion in Wollschlaeger v. Governor, the Florida "Docs vs. Glocks" case. (I'd been following the controversy for quite a while, but didn't have a chance to blog about the earlier opinion, which was handed down a year ago.) The court upheld the law, which limits doctors' speech to their patients about the patients' gun ownership. But I think the court is mistaken, and the law should have been held to violate the First Amendment. I share many people's skepticism about much of the "public health" anti-gun advocacy; but I think this is no basis for suppressing doctors' speech this way.
1. First, what does the statute actually do?
A. It provides that a doctor may not ask questions (in writing or orally) "concerning the ownership [or home possession] of a firearm or ammunition by the patient or by a family member," unless the doctor "in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others." And, according to the court, "relevant" here means relevant based on "some particularized information about the individual patient, for example, that the patient is suicidal or has violent tendencies." A doctor thus may not ask all patients, or all patients with children, whether they own guns, whether on an intake questionnaire or in person, even if the doctor believes that this information would indeed be useful in giving general advice about safe gun storage, the supposed dangers of any gun ownership, and the like.
B. It bans doctors from "intentionally enter[ing] any disclosed information concerning firearm ownership into the patient's medical record if the practitioner knows that such information is not relevant to the patient's medical care or safety, or the safety of others," with the same interpretation of "relevant."
C. It provides that patients may "decline to answer or provide any information regarding ownership [or home possession] of a firearm," though such a refusal "does not alter existing law regarding a physician's authorization to choose his or her patients." Nonetheless, it provides that doctors "may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition." This suggests that doctors may turn away patients for refusing to answer questions about guns (so long as they are "relevant" based on "some particularized information about the individual patient"), but may not turn away patients for answering the questions with "yes, I own a gun."
D. It bans doctors "from unnecessarily harassing a patient about firearm ownership during an examination." This means, according to the court, that a doctor "should not disparage firearm-owning patients, and should not persist in attempting to speak to the patient about firearm ownership when the subject is not relevant [based on the particularized circumstances of the patient's case, such as the patient's being suicidal] to medical care or safety."
2. This, the court acknowledges, is a restriction on doctors' speech. But, the court concludes, when a professional (lawyer, doctor, financial planner, and the like) is directly advising a client—as opposed to, say, opining on law or medicine on a blog—that professional-client speech is more restrictable.
Now it's pretty clear that professional-client speech is indeed subject to more restriction than other speech, though the Supreme Court hasn't told us just what the rule there is. For more on the subject, see this post; but here's a quick summary:
- The government can require you to get an expensive, time-consuming license before you give a client legal, medical, psychiatric, or financial advice, though the First Amendment would bar any such requirement for journalists, authors, documentarians, and the like.
- The court system can hold you liable for supposedly negligent predictions and recommendations, though newspapers and book publishers can't be sued for supposedly negligent statements about what the stock market will do, about whether vaccines are dangerous, or about how you should arrange your legal affairs.
- The government can require professionals to give all sorts of disclaimers and other information to their clients, though that would be impermissible speech compulsion as to newspapers, books, blogs, and the like. To quote the lead opinion in Planned Parenthood v. Casey (1992), which upheld a requirement that doctors give various materials to women who are considering abortion, "the physician's First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State."
Recent lower court opinions have therefore held that content-based restrictions on professional-client speech are subject to some First Amendment scrutiny, but only so-called "intermediate scrutiny" rather than the very-hard-to-satisfy "strict scrutiny." The court in this case agreed. (That's a big part of how this revised opinion differs from last year's original opinion—the court here applies intermediate scrutiny, where last year's opinion concluded that even that scrutiny was unneeded, because "[t]he Act as a whole 'governs occupational conduct, and not a substantial amount of protected speech,'" so that "[a]ny burden the Act places on speech is thus incidental to its legitimate regulation of the practice of medicine.")
3. But even intermediate scrutiny—if that's the right test—requires some serious justification for a speech restriction. Among other things, it requires that there be a "reasonable fit" between the speech restriction and the supposedly important reasons justifying the restriction. And here, I think, there's no such fit.
A. The majority concludes that the law is justified by the interest in protecting patient privacy. But Florida law seems just fine with doctor-patient speech that asks about all sorts of private questions, including private questions about the exercise of constitutional rights. Doctors can ask, "Are you sexually active?" "Are you using contraceptives?" "What kinds of contraceptives are you using?" "Do you want to have children at some point?" "Have you ever been pregnant?" "How many sexual partners have you had in the past year?" "Are you engaging in anal sex?" "How much television do your children watch?" "Do your children play violent videogames?"
There is, to my knowledge, no restriction on such questions, no requirement that doctors ask them only based on "some particularized information about the individual patient." Some doctors likely do ask some such questions, on a relatively blanket basis. The questions are at least as intrusive as questions about guns; indeed, many people find some such information more private than gun ownership.
Yet the legislature doesn't seem to take the view that Floridians need to be protected against such supposed "intrusions on privacy." The normal ways of dealing with intrusive questions—such as saying "I'd rather not talk about this with you," something people can say even to doctors—seem to be quite sufficient when it comes to private information such as this. Why aren't they sufficient when it comes to guns?
The majority points to "the highly disparate power balance of the physician-patient relationship." But a doctor isn't going to arrest you. (He might in some situations get you mentally committed, but in those situations he wouldn't even be covered by the Florida speech restriction, since then he would have a particularized reason to ask about your guns.) He's not going to fire you. At most he might tell you to find a new doctor—a hassle, but generally not something that's so hard to do. If this sort of "disparate power balance" is all it takes to suppress the "powerful" person's First Amendment rights, the First Amendment is in pretty substantial danger.
Now the doctor does have "power" in the "knowledge is power" sense: Because he knows much more about medicine than you do, you're likely to follow his instructions. That's why bad medical advice can lead to malpractice liability, or professional discipline. But the law isn't limited to doctors who advise you to do things that prove dangerous to you. It covers all blanket questions about gun ownership, regardless of whether those questions lead to sound advice, professionally incompetent advice, or no advice at all.
And this selective targeting of questions about guns—when other, likely quite common, questions about private matters aren't restricted—suggests that this law isn't really about protecting privacy as such. Rather, it's about preventing doctors from spreading what many gun rights supporters see as unsound anti-gun propaganda. As I mentioned, I share some of this concern. But this can't be a permissible basis for the government restricting doctors' speech (again, unless the speech is itself so unreasonable and harmful as to constitute malpractice, something to which this law is not at all limited).
B. The state also argued that "the state has a compelling interest to ensure that health care is available to citizens who need it, irrespective of whether they own guns." That might justify a ban on discrimination against gun owners, and that ban wouldn't violate the First Amendment (at least if the ban was focused on refusals to treat, and didn't include speech that gun owners found offensive). But it doesn't justify the restrictions on questions, recordkeeping, "disparage[ment of] firearm-owning patients," or "persist[ing] in attempting to speak to the patient about firearm ownership."
There may be a compelling interest in making sure people can get health care—but under the First Amendment, I don't think there can be an adequate interest in shielding people from questions and arguments they find offensive while they are getting health care. If they don't like such questions and arguments, they can go to a doctor they like better. And indeed this is precisely the view that the state rightly takes with regard to patients who don't like what their doctors ask or say about alcohol or smoking or drugs or promiscuity or chocolate or violent video games.
C. The state argued that "the right to keep and bear arms for personal protection is guaranteed by the U.S. and Florida Constitutions." So it is; I've written articles myself defending the view that the Second Amendment secures such a right.
But a constitutional right is a right to be free of governmental restrictions on the exercise of the right—it is not a right to be free of private criticism for the exercise of the right, much less private questions about the exercise of the right. A doctor no more violates your Second Amendment rights by asking you about whether you own a gun than the doctor violates your First Amendment rights by asking you how much TV your children watch, or your Lawrence v. Texas sexual autonomy rights by asking you whether you've been having sex with multiple partners.
D. Finally, the state argued that "Florida aims to prevent discrimination and harassment against gun owners." I've talked briefly above about discrimination. But as to "harassment," I don't think Florida has a sufficient interest in protecting patients from criticism or from unwanted persistent attempts to talk about guns.
Patients can certainly try to protect themselves from that, by switching doctors, by posting bad Yelp reviews about the doctors whom they've left and perhaps by reminding doctors that likely a third to a half of their patients own guns, and alienating such patients is bad for business. But suppressing such speech to protect the listeners' sensibilities can't be an adequate justification given the First Amendment.
So it seems to me that the majority here is mistaken, and the dissent is largely correct (though I don't entirely agree with all of the dissent's analysis). It will be interesting to see whether the 11th Circuit agrees to rehear the case en banc, before all of its judges. (The challengers asked for such rehearing en banc, but their petition was dismissed as moot given the revised opinion; they can now modify their petition in light of the revised opinion, and ask for en banc again.) And it will be interesting to see whether the case ends up before the U.S. Supreme Court, which would then have an excellent opportunity to help clarify what sorts of professional-client speech restrictions are allowed.