Last week the U.S. Court of Appeals for the 11th Circuit overturned a censorious Florida law that tried to stop doctors from pestering their patients about guns, sacrificing the First Amendment in the name of protecting the Second. Such laws, which the National Rifle Association supports, show how fake rights—in this case, an overbroad understanding of the right to armed self-defense—endanger real ones.
Florida's Firearm Owners' Privacy Act, enacted in 2011, was a response to complaints that pediatricians and family practitioners had become excessively nosy about guns in the homes of their patients. The American Medical Association, the American Academy of Pediatrics, and the American Academy of Family Physicians encourage their members to ask parents about guns, treating them as hazards analogous to alcohol, swimming pools, and poisonous household chemicals. Sometimes gun owners object to such inquiries, especially if they seem to be colored by a moralistic anti-gun ideology. The 11th Circuit's decision describes half a dozen examples that influenced Florida's legislators:
- A pediatrician in Ocala had reportedly told a mother that she would have to find a new physician for her child due to her refusal to disclose information about firearm ownership in the family home.
- A state representative said that his daughter's pediatrician inquired if he owned a firearm, and then asked him to remove the firearm from the home.
- An email described how a mother "was separated from her children while medical personnel…interrogated" them about firearm ownership and put information about such ownership in their medical records.
- One doctor refused to treat a child because he wanted to know if there were firearms in the home.
- A patient, according to a state senator, was told that disclosing firearm ownership was a Medicaid requirement. And another patient was informed that Medicaid does not pay for care if patients refuse to answer firearm-ownership questions.
- A representative of the National Rifle Association reported that a child would not be examined if the parent refused to answer questions about firearms in the home.
Assuming these accounts are accurate, the behavior of these doctors may have been unreasonable or even (when they misrepresented Medicaid requirements) unethical. But their requests for information about guns were not unconstitutional, since the Second Amendment applies only to the government. The law passed in response to these anecdotes nevertheless purported to protect the Second Amendment rights of Floridians by regulating what doctors say to their patients. As the 11th Circuit notes, that makes no sense (citations omitted, emphasis added):
There was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients' firearms or otherwise infringed on patients' Second Amendment rights. 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 (or by anyone else for that matter). The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right. So, as the district court aptly noted, there is no actual conflict between the First Amendment rights of doctors and medical professionals and the Second Amendment rights of patients that justifies [the law's] speaker-focused and content-based restrictions on speech.
In addition to prohibiting doctors from discriminating against gun owners (a provision the appeals court upheld), the Firearm Owners' Privacy Act forbade them to request or record information about guns unless it is "relevant to the patient's medical care or safety, or the safety of others"—a standard that rules out routine inquiries about firearms. The law also instructed doctors to "refrain from unnecessarily harassing a patient about firearm ownership during an examination." As 11th Circuit Judge Stanley Marcus notes in a concurring opinion, that "incomprehensibly vague" provision raises due process as well as free speech concerns, since doctors are "left guessing as to when their 'necessary' harassment crosses the line and becomes 'unnecessary' harassment." Violations of these rules were punishable by fines and disciplinary actions such as letters of reprimand, probation, compulsory remedial education, and license suspension.
The speech restrictions imposed by Florida's law are clearly content-based, since they target communications dealing with a specific subject. The Supreme Court generally views content-based speech restrictions as "presumptively invalid" under the First Amendment, meaning they are subject to "strict scrutiny," which requires showing they are narrowly tailored to serve a compelling government interest. The 11th Circuit concludes that the Firearm Owners' Privacy Act fails even the more lenient standard of "heightened scrutiny," which the Supreme Court applied in a 2011 case involving state regulation of pharmacists. That test requires the government to show the challenged law "directly advances a substantial governmental interest and that the measure is drawn to achieve that interest," meaning there is a "fit between the legislature's ends and the means chosen to accomplish those ends."
Noting that state legislators "relied on six anecdotes and nothing more" when they enacted the Firearm Owners' Privacy Act, the appeals court finds the official rationales for the law—which, in addition to the Second Amendment, invoke patient privacy, protection against discrimination, and public health—inadequate to justify its speech restrictions. "Florida may generally believe that doctors and medical professionals should not ask about, nor express views hostile to, firearm ownership," the 11th Circuit says, "but it 'may not burden the speech of others in order to tilt public debate in a preferred direction.'" As for patients who object to questions about gun ownership, the appeals court says, they are not required to answer them, and they are free to choose less inquisitive doctors.
Florida's attempt to protect gun owners from offensive questions is reminiscent of the Oklahoma law requiring businesses to let employees keep firearms in company parking lots. When ConocoPhillips challenged that law in federal court, the NRA launched a boycott of the oil and gas company. "We're going to make ConocoPhillips the example of what happens when a corporation takes away your Second Amendment rights," said NRA Executive Vice President Wayne LaPierre.
ConocoPhillips cannot take away people's Second Amendment rights any more than Florida doctors can. And just as doctors have a right to ask patients about guns, even if that makes some patients uncomfortable, businesses have a right to control their own property, which includes the right to ban guns there. In both cases, the NRA argues, in effect, that the Second Amendment requires violating people's rights.