On July 25, in the case of Wollschlaeger v. Governor of Florida, a federal appellate court ruled by a split 2-1 vote in favor of the Second Amendment, upholding a Florida statute negatively affecting the ability of physicians to ask their patients about whether they possess firearms.
It's a terrible decision for free speech advocates, doctors and the children they want to protect.
The Florida statute at issue in Wollschlaeger -- the only one of its kind in the nation, by the way -- provides in key part that doctors and health care facilities:
shall respect a patient's right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient. Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others, may make such a verbal or written inquiry.
The two-judge majority for the U.S. Court of Appeals for the Eleventh Circuit downplayed the First Amendment speech interests involved by concluding that the law focused on conduct, not expression. That's a key dichotomy. By finding the law targeted the conduct of physicians, not their speech, the majority could largely duck and dodge the First Amendment problems with the law.
The majority called the regulation "a legitimate regulation of professional conduct," reasoning that "it is uncontroversial that a state may police the boundaries of good medical practice by routinely subjecting physicians to malpractice liability or administrative discipline for all manner of activity that the state deems bad medicine, much of which necessarily involves physicians speaking to patients."
As for the First Amendment interests of the doctors, the majority concluded that "any burden the Act places on physician speech is thus entirely incidental."
In his dissent, Judge Charles R. Wilson vehemently disagreed, calling the law "a gag order that prevents doctors from even asking the first question in a conversation about firearms. The Act prohibits or significantly chills doctors from expressing their views and providing information to patients about one topic and one topic only, firearms."
The doctors who filed the lawsuit claimed the statute violated their First Amendment right of free speech will now appeal the decision, asking for the Eleventh Circuit to reconsider its ruling before a larger bank of judges than just the three who heard it this time.
Mobeen Rathore, the Florida chapter president of the American Academy of Pediatrics, blasted the decision, calling it "an egregious violation of the First Amendment rights of pediatricians and threatens our ability to provide our patients and their families with scientific, unbiased information."
Rathore wasn't alone in that sentiment.
"If the appellate court's decision is allowed to stand, the corporate gun lobby and its political cronies will be given license to silence the medical community from speaking the truth to patients about the real risks of guns in the home, and any powerful industry will be able to dictate whether families get complete, honest information about the dangers posed by its products," said Jonathan Lowy, Director, Legal Action Project, Brady Center to Prevent Gun Violence.
The ACLU of Florida filed a brief in the case supporting the doctors. Its executive director, Howard Simon, called it:
a sad day when judges tell doctors what is in the best interest of their patients. This unconstitutional law gags doctors and prevents them from talking to their patients about measures to help parents protect children from guns in the home. The only thing that makes this discussion "bad medical practice" in the view of two federal judges is the fact that it has to do with guns.
What happens now? The doctors will ask, as noted above, for an "en banc" hearing before a much larger number of judges from the Eleventh Circuit. If that request is denied, then in all likelihood they will petition the U.S. Supreme Court to hear their case.
For now, Florida has firmly placed duct tape over the mouths of its physicians. Their talking must now be confined to further courtroom battles.
Perhaps even more disturbingly, the mainstream news media -- the entities that are protected by the First Amendment -- have largely failed to give this case the attention it deserves. They need to step up and recognize the free-speech interests being damaged in Florida.
Follow Clay Calvert on Twitter: www.twitter.com/ProfClayCalvert