April 26, 2016

Do doctors give up their First Amendment rights when they speak with patients?

By Caleb R. Trotter Attorney

The answer to that question should be “no.” Unfortunately, something called the “professional speech doctrine” practically makes the answer, “yes.” That’s why today, as part of our ongoing effort to support free speech, PLF filed a brief in Wollschlaeger v. Governor of the State of Florida in the 11th Circuit Court of Appeals.

The case, better known as “Docs v. Glocks,” involves a 2011 Florida law that, among other things, bans doctors from asking their patients about the patient’s gun possession or ownership unless the doctor believes the question to be relevant to the patient’s health care or safety, or to the safety of others. At first blush you may wonder why anyone would want doctors asking irrelevant questions about guns. That’s a fair question. But the larger issue is whether the government can categorically ban doctors from asking their patients certain questions.

Wollschlaeger highlights the difficulty that arises when courts try to say speech isn’t speech, or, if it is speech, then it’s not valuable speech. To say that a lack of clarity exists and confusion reigns would be an understatement.

In this case, after Florida enacted the 2011 law, a group of doctors sued, claiming the law violated their First Amendment rights. The district court agreed and declared the law unconstitutional. Then Florida appealed to the 11th Circuit. In its first of three opinions, the three-judge 11th Circuit panel reversed the district court and held the law only regulates the conduct of doctors, not their speech, so the First Amendment was not implicated. However, after the doctors requested the court to reconsider, the 11th Circuit panel vacated its first opinion and issued a second opinion that the law regulated speech after all, but since it only regulated speech of professionals (who are subject to many other regulations), the law survived minimal First Amendment scrutiny. Finally, in response to last year’s Supreme Court decision in another First Amendment case, Reed v. Town of Gilbert, Ariz., the panel issued a third opinion vacating its second opinion, and holding that the Florida law does regulate speech but survives even the highest level of First Amendment scrutiny. By upholding the law under strict scrutiny, the court avoided the question of how much scrutiny content-based regulations of speech of professionals should receive. Following the third panel opinion, the 11th Circuit agreed to rehear the case en banc.

PLF’s brief, filed today in support of the doctors, argues all content-based regulations of speech, whether by professionals or others, should receive strict scrutiny from the courts. At its core the reasoning is rather straightforward. First, the “professional speech doctrine” derives from two Supreme Court concurring opinions that have never been approved by a majority of the Court. Instead, lower courts have patched together the “doctrine” and it is unevenly and inconsistently applied as a result. Second, there is no principled reason to relegate speech of professionals to second-class status when depictions of animal cruelty, lies about military honors, violent video games, and advice to terrorist organizations, for example, receive significant constitutional protection. And third, using the equally confusing and unclear “commercial speech doctrine” provides no clear path to analyze otherwise protected professional speech.

Regardless of whether you agree that doctors should be asking irrelevant questions about guns, this issue isn’t only limited to doctors. States throughout the U.S. try to regulate the speech of veterinarians, real estate advertisers, and many other professions. Fortunately, the Constitution demands that laws regulating the content of speech be given the strictest of scrutiny by the courts. Now we just need the courts to enforce it. Otherwise, politicians and the government get to decide what is said and what is heard. In a free society that proposition cannot stand.

What to read next