This article was published by the McAlvany Intelligence Advisor on Monday, August 3, 2015:
Seal of the United States Court of Appeals for the Eleventh Circuit.
It’s a proverb: silence is golden. It’s in the Bible. Ecclesiastes 3:7b: “[There is] a time for silence and a time for speech.”
For Sir Thomas More, however, his refusal to speak about why he refused to sign a letter asking Pope Clement VII to annul King Henry VIII’s marriage cost him his life. For Amber Ullman the consequences weren’t nearly as severe.
Ullman, a 26-year-old mother of 4-month-old Temperance living in Summerfield, Florida, had just taken her child to her pediatrician for a checkup and shots when her doctor asked: “Do you keep a gun in the house?” She answered, “Whether I have a gun has nothing to do with the health of my child.” When he responded, “Are you refusing to answer the question?” Amber said, “Yes. I’m refusing to answer the question.” He told her that she was no longer welcome at Children’s Health of Ocala and that she had 30 days to find another doctor.
Repeated numerous times, cases like Ullman’s formed the backdrop for the passage of Florida’s Firearm Owners’ Privacy Act in June 2011. It passed both houses overwhelmingly and was signed into law by Governor Rick Scott.
Four days later, the law was challenged by the ACLU and the Brady Campaign, complaining that the law was a blatant infringement of doctors’ First Amendment rights and should be thrown out. The law’s language is straightforward:
[The law] provides that [any] licensed practitioner or facility may not record firearm ownership information in [a] patient’s medical record … unless [that] information is relevant to [the] patient’s medical care or safety, or safety of others….
[It] provides that [the] patient may decline to provide information regarding ownership or possession of firearms….
[It] provides for disciplinary action [fines up to $10,000 and possible loss of license to practice medicine].
A year later, U.S. District Court Judge Marcia Cooke threw out the law, ruling that it “aims to restrict a practitioner’s ability to provide truthful, non-misleading information to a patient … that, while perhaps not relevant to a patient’s medical safety at the time, [would] inform the patient about general concerns that may arise in the future.”
This was enough to galvanize the National Rifle Association into challenging that ruling, which was negated by Eleventh Circuit Court of Appeals last summer. Writing for the majority of the 3-judge panel, Judge Gerald Tjoflat said:
In order to protect patients, physicians have for millennia been subject to codes of conduct that define the practice of good medicine and affirm the responsibility physicians bear. In keeping with these traditional codes of conduct – which almost universally mandate respect for patient privacy – the Act simply acknowledges that the practice of good medicine does not require interrogation about irrelevant, private matters.
The first ruling, hailed by the NRA as a victory, concentrated on “good practices” including “professional speech” engaged in while treating patients. Little was said about the First Amendment, and nothing about the Second.
But the three-judge panel decided to take another look at its decision, and published its revised and greatly amplified ruling – 152 pages – with the same conclusion: professionals’ First Amendment rights must give way (slightly) in order to protect their customers’ Second Amendment rights. After all, said the NRA, the act “has only an incidental effect on physicians’ speech.”
This decision was enjoined by the editorial staff at the New York Times in its opinion titled “Censorship in Your Doctor’s Office.” In it they wrote:
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.
And then, in a remarkable admission of common sense, the editorial agreed with the NRA:
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.
The majority wrote in its second opinion that Florida’s law “codifies the commonsense conclusion that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care – especially not when that inquiry or record-keeping constitutes such a substantial intrusion upon patient privacy.”
On the other hand, the Harvard Law Review called the court’s reaffirmation of its previous decision “deeply problematic,” and, if allowed to stand, “it would do more than simply permit the state to regulate a vast amount of speech with no meaningful judicial check: it would fundamentally alter a doctor’s status as a professional citizen.”
Dissenting Judge Charles Wilson, whose dissent in the second opinion took up most of the 152 pages, called the decision a “gag order” on doctors:
The holding reached today is unprecedented, as it essentially says that all licensed professionals have no First Amendment rights when they are speaking to their clients or patients in private. This in turn says that patients have no First Amendment rights to receive information from licensed professionals – a frightening prospect.
Pressure is building to have the court take a third look at the issue, this time with all judges in attendance “en banc.” If they concur with the panel, it’s likely that the ACLU and Brady, et al, will appeal it to the Supreme Court. If that happens, it will be the first time in recent memory where precious rights guaranteed by the First Amendment will square off against those guaranteed by the Second.
In the meantime, when asked about guns in the house, silence is golden.
Sources:
CS/CS/HB 155 – Privacy of Firearm Owners
CBS Local: Appeals Court OKs ‘Docs VS. Glocks’ Law
CBS Local: Federal Judge Throws Out Fla. Gun Law
The New York Times: Censorship in Your Doctor’s Office
Harvard Law Review: Wollschlaeger v. Governor of Florida
A Man for All Seasons (1966 film)
Ocala.com: Family and pediatrician tangle over gun question
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