First Amendment Yields to Second in Florida

Courthouse News Service – by Izzy Kapnick

ATLANTA (CN) – A Florida law prohibiting doctors from prodding patients about their gun ownership does not tread on the First Amendment, the 11th Circuit ruled.

Passed in 2011, Florida’s Firearm Owners Privacy Act prohibits doctors from asking patients questions about their gun-toting habits, unless the physicians believe that the answers will be relevant to their patients’ medical care and safety, or the safety of those around them.  

Lawmakers drew up the act on the heels of a well-publicized 2010 incident wherein an Ocala-area doctor allegedly booted a patient from his medical practice after she refused to tell him whether she kept a gun in the home with her newborn baby.

An outcry ensued from gun-rights groups, and legislators took note, as state Sen. Greg Evers hit the capitol floor with a story of how his daughter’s pediatrician asked him to remove guns from his home.

Gov. Rick Scott signed the swiftly passed act into law in June 2011. Among other measures, it called for disciplinary action against doctors who ask patients unnecessary gun-related questions or write down clinically irrelevant notes about patients’ gun ownership in their medical files.

Several physicians and physician groups – including the Florida chapters of the American Academy of Pediatrics and the American College of Physicians – joined together and sued Florida to block enforcement of the act, claiming it infringed on doctors’ First and 14th Amendment rights.

The doctors argued that they should be free to discuss in-home gun safety with patients, without fear of being punished, just as they would discuss drowning risks associated with a family pool.

Though a federal judge agreed with the doctors that the law was unconstitutional and exceedingly vague, a divided three-judge panel of the 11th Circuit reversed the lower court’s injunction last year.

The 11th Circuit upheld Florida’s law for the third time on Monday.

“In light of the longstanding authority of states to define the boundaries of good medical practice, we hold that the act is, on its face, a permissible restriction of physician speech,” Judge Gerald Tjoflat wrote for the majority.

The latest rehearing petition stemmed from the June 2015 decision by the U.S. Supreme Court in Reed v. Town of Gilbert.

The doctors argued that Reed requires the 11th Circuit to apply the heightened standard of strict scrutiny when examining whether the Firearm Owners Privacy Act violated physicians’ constitutional rights.

Staying the course Monday, Tjoflat found that the law survives that test “as the state has asserted a compelling interest and the act is narrowly tailored to advance that interest.”

The revised opinion cites the captive-audience doctrine, which provides for limitations to free speech when the listener is essentially trapped by the speaker, or his privacy is being egregiously invaded.

A doctor lecturing a patient alone in an examination room could present such a circumstance since the patient may “feel as if he has no choice but to listen,” the 81-page lead opinion states.

The court noted the captive-audience doctrine has a special role when a scenario involves access to medical care, as with Hill v. Colorado, a case in which the Supreme Court allowed for a buffer zone around abortion-clinic patients to prevent protesters from harassing them.

“Narrowly tailored abridgments of speech can be tolerated when they vindicate other fundamental rights,” Tjoflat wrote.

Judge Charles Wilson again dissented but opted Monday to save his breath.

“Having considered all these arguments for and against the constitutionality of this state law, I continue to believe that it does not survive First Amendment scrutiny,” Wilson wrote. “However, I have already written two dissents to this effect, and the plaintiffs have sought en banc review. Accordingly, I decline to pen another dissent responding to the majority’s evolving rationale. I rest on my previous dissents.”

In a 74-page dissent this past July, Wilson had said “doctors’ jobs are hard enough when the state does not enact laws that force them to think twice about asking questions and providing information that may save lives.”

“Given how vague this act is, thinking twice will not be nearly enough for doctors to figure out what to do to protect their patients, on the one hand, and to comply with the act, on the other,” Wilson had said. 

http://www.courthousenews.com/2015/12/18/first-amendment-yields-to-second-in-florida.htm