"government officials in Florida and across the country argue that normal First Amendment rules don’t apply to licensed occupations"
In general I think folks in govenrment are idiots and crooks. But the one thing that does impress me about our government rulers is all the creative ways they can come up with to flush the Constitution and Bill of Rights down the toilet to justify themselves do anything they damn well feel like doing.
Censorship in Your Doctor’s Office
By PAUL SHERMAN and ROBERT McNAMARAAUG. 1, 2014
WHEN a doctor asks her patient a question, is the doctor engaged in free speech protected by the Constitution? If you think the answer is obvious, think again. According to a recent decision by the United States Court of Appeals for the 11th Circuit, everything a doctor says to a patient is “treatment,” not speech, and the government has broad authority to prohibit doctors from asking questions on particular topics without any First Amendment scrutiny at all.
The case, Wollschlaeger v. Governor of Florida, concerned the constitutionality of the Florida Firearm Owners Privacy Act. That 2011 law threatens doctors with professional discipline if they ask patients whether they own guns or record the resulting information in a patient’s files when doing so is not “relevant” to a patient’s medical care.
What may or may not be relevant is unanswered by the statute. Reasonable people can disagree on whether those questions are necessary to provide effective medical care. Opponents of Florida’s law, including the Brady Campaign to Prevent Gun Violence, believe that asking patients about gun ownership is a legitimate means of promoting public health by giving doctors the opportunity to share firearms-safety tips. Proponents of the law, the National Rifle Association among them, believe that whether a person owns guns is none of his doctor’s business.
The N.R.A. may well be right. Many patients probably prefer not to discuss their gun ownership with their doctor, just as others may not want to discuss their sexual activity or alcohol intake, particularly if they believe the doctor’s inquiries are motivated more by a political agenda than by medical necessity. But the First Amendment generally doesn’t let the government outlaw the asking of annoying questions. Instead, people can refuse to answer or decline to associate with those who insist on asking such questions.
The theory behind Florida’s law, by contrast, is that patients faced with questions about guns will be too cowed by their physician’s power and prestige to talk back or even just find a different doctor. That’s hardly a flattering view of gun owners, whom we generally believe to be made of sterner stuff.
Nevertheless, it is a theory a three-judge panel of the 11th Circuit found persuasive. By a 2-to-1 vote, it concluded that when doctors ask questions of their patients, those questions constitute medical treatment wholly outside the First Amendment. As the majority argued, medical treatment “may begin with an inquiry (‘Do you smoke?’), followed by a recommendation and some amount of counseling (‘You should quit smoking because smoking has been shown to cause cancer’).” And none of that, apparently, is “speech.”
While some of our fellow Second Amendment advocates may be tempted to celebrate this ruling, it is, at most, a symbolic victory for gun rights. And it comes at the cost of a serious and dangerous defeat for the First Amendment.
Indeed, 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.
Fortunately, the line of argument followed by the 11th Circuit has been rejected by the United States Supreme Court. In 2010, the court considered the constitutionality of a federal law that made it a crime to give expert advice — including even legal advice — to designated terrorist groups. Although the government defended the law by arguing that such individualized advice was conduct rather than speech, the court rejected that argument.
Despite this clear rule, government officials in Florida and across the country argue that normal First Amendment rules don’t apply to licensed occupations — a position that is serving as cover for increasingly broad-ranging censorship.
The Texas state veterinary board, for example, has used a rule that prohibits licensed veterinarians from dispensing veterinary advice about an animal they have not examined. This silences vets who use the Internet to advise pet owners who would otherwise lack access to veterinary care. Even people giving ordinary advice aren’t safe. Last year, the Kentucky Board of Examiners of Psychology sent a cease-and-desist letter to the newspaper columnist John Rosemond, claiming that his widely syndicated parenting column was the unlicensed — hence criminal — practice of psychology. Is Dear Abby next?
The ruling by the 11th Circuit panel is another dangerous step in this censorial direction, and it must not be allowed to stand. If the 11th Circuit does not grant a rehearing before the entire court and reverse the panel’s ruling, the Supreme Court should grant review and make clear that the protections of the Second Amendment do not trump those of the First Amendment.
Paul Sherman and Robert McNamara are lawyers at the Institute for Justice, a libertarian public interest law firm.