In a 2-1 decision, the Eleventh Circuit Court of Appeals upheld a Florida statute prohibiting doctors from asking about patients’ gun ownership. The Eleventh Circuit’s opinion reverses a controversial District Court decision – known in the media as “Docs v. Glocks” – that found the law unconstitutional.

The Firearm Owners Privacy Act, passed in 2011, prevents a physician from inquiring into a patient’s firearm ownership unless that ownership is relevant to the patient’s medical care. Violation of the law could lead to a physician’s license being suspended or revoked, along with a $10,000 fine.

1st Amendment Issue? What 1st Amendment Issue?

The majority insisted that the Act was a run-of-the-mill professional regulation, like many others. In fact, said the court, the law runs parallel to other AMA recommendations limiting the scope of doctor-patient discussions only to what is necessary.

Except that there is no First Amendment problem, the 11th Circuit explained. “We find that the Act is a valid regulation of professional conduct that has only an incidental effect on physicians’ speech,” the court said. Once again, there’s heavy deference to the state when it comes to regulating professions; the court emphasized that the Act regulates the doctor’s professional relationship with the patient, not the personal one. As a result, the case could be decided without resorting to a First Amendment analysis.

A Strong Dissent

Rather than viewing the Act as a reasonable professional regulation, Judge Charles Wilson’s dissent characterized it as “a gag order” enacted “[i]n response to complaints by patients who found doctors’ questioning and counseling on the subject of firearms to be irritating, offensive, and overly political.”

Expect that this case will eventually be appealed to the U.S. Supreme Court, which loves the First Amendment, except when it doesn’t.

Related Resources:

  • Professional-Client Free Speech and The Medical Privacy Concerning Firearms Act (ABA Health eSource)
  • Silencing the Science on Gun Research (The Journal of the American Medical Association)
  • Snippets: Guns, Ginsburg, and NSA Litigation (FindLaw’s U.S. Supreme Court Blog)
  • There’s No Second Amendment Right to Bear a Specific Arm (FindLaw’s U.S. Fifth Circuit Blog)

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