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Physicians’ First Amendment Rights to Discuss Firearms With Patients Upheld in Florida

A federal judge has ruled that the state of Florida may not enforce a “firearm gag rule”—a law backed by the National Rifle Association (NRA) that banned physicians practicing in the state from discussing gun ownership with their patients.

Lawrence Gostin, JD

The Florida Privacy of Firearm Owners Act, which came into force last July, requires licensed health care practitioners to “respect a patient’s right to privacy” and refrain from asking about gun ownership or the presence of firearms in their homes. It also said clinicians should refrain from discriminating against patients based solely on a patient’s “firearm ownership or possession.”

Medical groups challenged the constitutionality of the legislation. On June 29, federal District Judge Marcia Cooke struck down the statute as a violation of physicians’ First Amendment rights to openly discuss firearm safety with their patients. The court found that the statute “aims to restrict a practitioner’s ability to provide truthful, non-misleading information to a patient.”1

Self Censoring

The law provides an exception if a physician believes in “good faith” that the information is relevant to a patient’s care or safety. But this exception was so vague, Judge Cooke ruled, that it posed a “chilling effect” on physicians’ freedom of expression. In fact, after the law was enacted, physicians testified that they self-censored, fearing that patients—encouraged by the NRA—would file complaints with the state medical licensure board. One consequence of the act was that some physician offices removed questions about firearms from standard health screening forms.

The Republican-controlled legislature passed the law, subsequently signed by Gov Rick Scott, after a Florida couple complained that their child’s pediatrician asked about guns in their home. After the mother refused to answer, the physician reportedly told her she had 30 days to find a new pediatrician.

Judge Cooke said the law was based on anecdotal information and unfounded conjecture, providing a weak evidentiary basis for the statute. “It does not appear that the Florida legislature relied on any studies, research, or statistics on physicians’ practices or patients’ experiences on this issue,” she noted.

In passing the law, Florida asserted that it had a strong interest in safeguarding patients’ “fundamental right to bear arms.” Aside from the fact that the Supreme Court has never held that Second Amendment rights are “fundamental,”2 physicians providing honest advice to their patients do not interfere with patients’ rights to bear arms. Instead, the law interferes with the physician-patient relationship—routine, meaningful discussions concerning patient safety and the home environment, which are vital aspects of preventative medicine.

What the Second Amendment discourse generally has lacked is recognition of the major public health effects of firearm use. Every day, according to data from the US Centers for Disease Control and Prevention, 65 minors are shot in the United States, with 8 of those children dying as a result. In homes with children that contain firearms, only about 40% of the families keep the firearms locked when stored.

Appeal Likely

The state of Florida is likely to appeal the case to the 11th Circuit Court of Appeals in Atlanta. Although the 11th Circuit is a conservative-leaning court, it is likely to uphold Judge Cooke’s decision. The case is principally about the First Amendment, not the Second.

Standard First Amendment jurisprudence holds that chilling free speech in ways that are vague—such that physicians cannot know with certainty what they may and may not say—violates the freedom of expression. In this case, the Supreme Court would likely apply its highest level of review because the state is trying to control the content of what physicians say in the course of their professional duties.3 Patient safety is squarely within realm of physician expertise.

Although the Supreme Court has moved further in recent years in affirming the right to bear firearms, physicians who discuss firearm safety with their patients do not detract from the patients’ right to possess firearms allowable under state law. Patients are free to accept or reject physician advice, but they attend a medical consultation precisely to receive objective information about their health and safety.

About the author: Lawrence Gostin is University Professor and Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University Law Center, and Director of the World Health Organization Collaborating Center on Public Health Law and Human Rights.
Wollschlaeger v Farmer. US District Court, Southern District of Florida, June 29, 2012. Accessed July 9, 2012.
Gostin LO. The right to bear arms: a uniquely American entitlement. JAMA. 2010;304(13):1485-1486.
Gostin LO. Marketing pharmaceuticals: a constitutional right to sell prescriber-identified data. JAMA. 2012;307(8):787-788.
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