Content-based restriction on doctors' speech to patients about guns passes 'strict scrutiny'

Monday, a three-judge U.S. Court of Appeals for the 11th Circuit panel handed down a third opinion in Wollschlaeger v. Governor, the Florida "Docs vs. Glocks" case. Florida law limits doctors' conversations with patients about guns. The first opinion in the case held that the law wasn't really a speech restriction, because it just regulated the practice of medicine (a deeply unsound view, I think). The second opinion, issued after a petition for rehearing, changed course and held that the law was a speech restriction, but that—as a restriction on professional-client speech—it had to be judged under "intermediate scrutiny," which it passed. (For more on professional-client speech, see item 2 in this post.)

Then the panel asked for further briefing in light of Reed v. Town of Gilbert (2015), a recent Supreme Court decision that had to do with content-based sign restrictions, but that the panel thought might be relevant to content-based restrictions more broadly, including restrictions on professional-client speech. Monday, the court concluded that, after Reed, such restrictions might be subject to strict scrutiny. But it didn't decide whether that was so, or whether a more pro-government standard of review should be applied, because the panel concluded (by a 2-to-1 vote) that the Florida doctor speech restriction passed even strict scrutiny (usually a very hard standard to satisfy).

This, I think, is quite wrong—and because strict scrutiny is the standard for evaluating content-based speech restrictions generally, and not just doctor-patient or professional-client speech restrictions, the error risks undermining free speech rights more broadly. In fact, much of the argument that the 11th Circuit panel accepted is structurally very similar to arguments used for restrictions on "hate speech," campus speech codes and the like. I hope the 11th Circuit reconsiders the matter en banc, and adopts the dissenting judge's view; or, failing that, I hope the U.S. Supreme Court decides to hear the case.

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 panel majority, "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 panel majority, 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."

These are content-based restrictions on what a speaker can say, and the 11th Circuit evaluated them under "strict scrutiny"—a deliberately demanding standard in free speech clause case law, which is only very rarely satisfied, and which requires that the government show that the law is "narrowly tailored" to a "compelling government interest."

2. A. The first compelling government interest on which the panel majority relied is "protect[ing] the right to keep and bear arms" that is secured by the Second Amendment. But wait: A doctor's questioning, however annoying, can't actually deny anyone the Second Amendment right to keep and bear arms. The Second Amendment, like almost all constitutional rights, only protects people from government intrusion. That's why, for instance, an employer's firing an employee for owning a gun at home isn't a Second Amendment violation; indeed, most state statutes (including Florida's statutes) don't even ban such firing.

But even if one views the Second Amendment discussion as shorthand for an asserted interest in protecting people's gun possession against (some) private restrictions, here no doctor's speech has any power to take away any guns. Even if the doctor's speech is mistaken (and indeed I find much "public health" literature about guns to be quite weak), "harassing," or not sufficiently "relevant," no amount of my doctor's speech will cause my gun to disappear.

The panel majority concludes that the government protects the right to keep and bear arms by "protecting patients from irrelevant questioning about guns that could dissuade them from exercising their constitutionally guaranteed rights, questions that a patient may feel they cannot refuse to answer, given the significant imbalance of power between patient and doctor behind the closed doors of the examination room." But why is there a compelling government interest in preventing speech on the grounds that it can dissuade people "from exercising their constitutionally guaranteed rights"? Persuasion and dissuasion are usually seen as constitutionally protected advocacy, and not things that the government has a compelling interest in stopping. (Note also that the statute is not at all limited to attempted dissuasion using factually inaccurate arguments; it applies to speech without regard to its factual accuracy.)

Now there is one way a doctor might be able to pressure a patient into not exercising his Second Amendment rights, beyond just persuasion: by threatening to stop treating the patient if the patient keeps his guns. Most patients, I suspect, will respond by just finding a new doctor. But it's possible that some patients (especially in rural areas, a point the panel opinion makes) might find that there are few doctors around, especially if they're looking for specialists.

If that's what the legislature worried about, though, it could easily solve that problem through the much less speech-restrictive solution of not allowing doctors to discriminate based on patients' gun ownership—something the legislature conspicuously failed to do. Instead, the legislature banned even doctor speech that contains no such threat, and affects gun ownership only through its power to "dissuade." Again, hard to see how preventing such a dissuasion is a "compelling" enough interest to justify a content-based speech restriction.

B. And because the panel majority is applying the general First Amendment test, its reasoning would set a precedent for many other restrictions. Indeed, the opinion validates many arguments that are already urged to restrict "hate speech," justify campus speech codes and the like. Free speech being trumped by the supposed need to protect other constitutional rights—that's exactly the argument given for restrictions on supposedly bigoted speech, on the theory that bigoted speech undermines the 14th Amendment right to equal protection.

Of course, as critics of such restrictions point out, bigoted speech isn't really government action denying equal protection; at most, it can help persuade people to have bad opinions. There really is no constitutional conflict. But the Wollschlaeger panel is perfectly willing to see First Amendment rights trumped, in the absence of any real constitutional conflict, to protect Second Amendment rights against mere private "dissuading." Why not then trump First Amendment rights, even in the absence of any real constitutional conflict, to protect Fourteenth Amendment rights against the malign effects of private persuasion?

"We must … place the doctors' right to question their patients on the scales against the State's compelling interest in fully effecting the guarantees of the Second Amendment," says the panel majority. We must place students' right to express racist, religiously biased, sexist, anti-gay, etc. views against the State's compelling interest in fully effecting the guarantees of the Equal Protection Clause, say those who want to ban "hate speech."

C. Note also the panel's repeated focus on the "imbalance of power" between doctor and patient. Black or gay or Muslim students, supporters of campus speech codes argue, lack power compared to the white or heterosexual or Christian majority; therefore, the speech of the powerful should be restricted to protect the powerless. (Similar arguments are made with regard to speech outside universities.)

Now I think that the supposed imbalance of power between doctor and patient, like the supposed imbalance of power among students, is quite overstated. Many patients can change doctors; those who don't want to can tell their doctors they don't want to talk about something; and, if need be, patients have the power to conceal their gun ownership from doctors. But in any event, even if in some situation patients can feel powerless in front of their doctors—just as some minority students can feel powerless when they hear speech from students who are in the majority—that can't be reason to restrict the speech.

(Doctors do have "power" in the "knowledge is power" sense: Because they know much more about medicine than you do, you're likely to follow their 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.)

D. Likewise, note the panel's discussion about how patients should be protected against doctor speech because of the patients' "vulnerability." The panel's image of patients is very much like the image of students given by many modern advocates of campus speech restrictions. They are vulnerable. They are psychologically constrained from speaking up. They are fragile, easily susceptible to speech that questions their worth (campus speech codes) or tries to "dissuade them from exercising their constitutionally guaranteed rights" (the doctor speech restriction here).

We can't expect them to be psychologically robust, willing and able to reject speech they dislike. No, we need to protect these vulnerable listeners from speech that might oppress them.

E. The panel majority's argument that the patient is the doctor's "captive audience" has similarly dangerously broad implications. I think that "captive audience" arguments can't justify content-based restrictions on particular ideas or information, but the panel takes a different view. And once it's accepted that it's fine to restrict speech about guns when the audience is "captive," exactly that argument would be used—because it often has been used—to support campus speech codes and similar restrictions.

3. The panel majority also reasoned that the Florida law is backed by a compelling interest in protecting "the privacy of gun owners' status as such from inclusion in their medical records." But the legislature didn't just enact a narrow law banning doctors from recording gun owners' status. (That would itself be a content-based speech restriction, but at least a much narrower one.) Instead, it also limited doctors' conversations with patients even if the results are never entered into records.

And beyond this, Florida law allows doctors to ask all sorts of private questions, including questions about the exercise of constitutional rights: "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?" 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 again points to "the significant power imbalance between patient and doctor." 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 "significant power imbalance" is all it takes to suppress the "powerful" person's First Amendment rights, the First Amendment is in pretty substantial danger.

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. 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).

* * *

The panel majority opinion, then, is dangerous—indeed, more dangerous than the earlier opinions in this case, which at least claimed that professional-client speech is less protected than other speech, and which thus wouldn't set much of a precedent for restricting fully protected speech. The logic of the opinion extends far beyond restrictions on doctors or on other professionals (though it's bad enough even there, and even on the facts of this case).

Rather, it can apply to a wide range of situations where the government can claim some supposed tension (however indirect) between constitutional rights, some "power imbalance" between speaker and listener, or some "vulnerability" or "captivity" of the listener. If not reversed, it will set a dangerous precedent for speech far outside the gun debate.