THE BLOG
08/27/2014 01:12 pm ET Updated Oct 27, 2014

Docs v. Glocks Case Fires Up in Florida: ACLU Files Brief on First Amendment Speech Rights

Florida physicians are caught in the National Rifle Association's crosshairs of censorship.

That's the gist of the ACLU Foundation of Florida's argument in a brief filed this week with the U.S. Court of Appeals for the 11th Circuit in the case of Wollschlaeger vs. Governor of Florida. The brief urges the court to reconsider its earlier 2014 ruling by a three-judge panel that upheld a Florida law called the Florida Firearm Owners Privacy Act. The Act restricts doctors in the Sunshine State (some say Gunshine State) when it comes to asking patients about their possible possession of firearms.

As framed by the ACLU in its August 25 filing, the issue now is:

Whether the [earlier 11th Circuit] panel erred in holding that a state law enacted in reaction to the lobbying of the National Rifle Association to suppress the truthful and important communication of healthcare professionals with their patients about the real dangers of firearm and ammunition ownership need not be subjected to strict scrutiny and does not violate the First and Fourteenth Amendments of the United States Constitution.

The concept of strict scrutiny refers to a rigorous legal test to which laws like that in Florida are typically subjected in order to determine if they violate free speech rights. Seldom do laws survive strict scrutiny. But the earlier ruling by the 11th Circuit failed to apply strict scrutiny and, instead, used a test that gave much greater deference to the Florida government. The court used that easier test because it found that the law regulated "professional conduct" and only had an "incidental effect" on speech.

Joined by a host of medical societies including the Broward County Medical Association, Palm Beach County Medical Society and the Florida Public Health Association, along with the Marion B. Brechner First Amendment Project that I direct, the ACLU argues in the brief that:

Doctors and other healthcare professionals see firsthand the impact that firearms have on children and others and often develop strong, political convictions regarding the actions that both government and individuals should take to try to decrease that societal harm. Sometimes they decide to attempt to impart their views to their patients. They believe that they have every right to do so as long as it does not interfere with their professional and legal obligations to care for their patients. They do not surrender their First Amendment rights when they accept their licenses, but the panel decision in this case holds otherwise.

The doctor who filed the lawsuit challenging the Florida law, Bernd Wollschlaeger, argues in a separate brief filed on August 15 that under the 11th Circuit's current ruling, "the state equally could prohibit doctors from discussing with patients the health risks of smoking or eating too much red meat, no matter what the purpose of the legislation. Likewise, legislators could control lawyers' advice to their clients because, the majority held, individualized professional advice constitutes 'professional conduct' the state can regulate as part of the practice of law."

Commenting in the New York Times on the 11th Circuit's earlier ruling upholding the law, attorneys Paul Sherman and Robert McNamara of the Institute for Justice write:

it's hard to overstate the sweeping effect of this rule. Imagine if tobacco companies successfully lobbied for a law that prohibited doctors from asking patients whether they smoke. Some doctors may want to know so they can conduct lung examinations, while others may just want to urge their patients to stop. But everyone should recognize that a law outlawing a simple question infringes on speech.

Ultimately, the case represents a classic political battle with the First Amendment -- the NRA would say the Second Amendment -- hanging in the lurch. As the ACLU writes in its brief, "[t]he record before this Court is clear that the legislature shared the NRA's viewpoint against gun restrictions and adopted the law not due to a belief that the restriction was needed to advance the goals of medical licensing, but rather to suppress political opposition to gun control."

Will the 11th Circuit now agree to rehear the case before a larger panel of judges? Thomas Julin, an attorney representing the ACLU in the case, told the Daily Business Review that the odds are "actually pretty good." He pointed out that a majority of the 11th Circuit's judges are Democrats, although the rehearing vote "doesn't always cut along political lines."

As for now, Florida physicians must keep their mouths shut.

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