Sitting en banc, the US Court of Appeals for the 11th Circuit ruled last week that doctors in Florida can discuss gun safety with their patients, despite a state law that gagged those doctors in the past, the New York Times reports.
The ruling affirms and strengthens rights of free speech in the Constitution’s First Amendment and clarifies, to a certain extent, our right to keep and bear arms in the Second Amendment.
The majority ruled that the Second Amendment doesn’t give the government the right to pass laws that bar free speech about the issue of gun safety. In fact, barring such speech is considered viewpoint discrimination, because the ban Florida placed on speech was based on the viewpoint expressed in the speech. If speech is to be banned, that speech has to pass a much stricter test than Florida had applied in this law.
Under that law, doctors were specifically prohibited from asking their patients questions related to their ownership of guns or their storage of guns in their homes. Those who passed the law said doctors were invading the privacy of their patients by asking them these questions.
But conversations between a doctor and a patient are very well protected by our laws, and there was no systemic evidence that suggested doctors were unlawfully disclosing the information they had obtained in their conversations.
From the doctors’ point of view, conversations about health and safety are very relevant, especially if kids are in the house. In passing a law to require people to keep guns inaccessible to children, Florida lawmakers recently noted the “tragically large number of Florida children have been accidentally killed or seriously injured by negligently stored firearms.”
Questions from doctors are, of course, more likely to be about protecting their patients’ health and safety than about any violations of some state statute, but those who supported the gag order in the law still defended it in court.
Judge Adalberto Jordan, writing for the majority, saw the flaw in that argument: “Could a state prohibit a doctor from advising parents to vaccinate their children? Could a state prohibit a doctor from recommending abstinence or encouraging safe sexual behavior? What about organ donation or surrogacy or terminal care?”
It’s a slippery slope whenever you start talking about banning speech, and the Second Amendment can’t be construed as taking any rights away from doctors, who are paid to look out for our best interests.