“Docs vs. Glocks” and the Regulation of Physicians’ Speech

Gun safety has not always been a matter of medical concern. However, evidence has accumulated over the past several decades of the public health implications of firearms in the home. A meta-analysis of 16 studies examining the impact of access to firearms on mortality showed that gun availability was associated with a twofold increase in the risk of homicide and more than a tripling of suicide risk (4). Another review of 42 studies reported that “one-third of U.S. homes with children younger than eighteen have a firearm, and more than 40% of gun-owning households with children store their guns unlocked, with one-quarter of those homes storing them loaded” (5). The consequences of such practices are seen in rates of accidental gun injury, especially involving children. According to statistics from the U.S. Centers for Disease Control and Prevention, almost 14,000 children and teenagers were wounded by a gun in 2015, and more than 2,800 others died (6). Indeed, a comparison of 2003 World Health Organization data from 23 high-income countries indicated that children ages five to 14 in the United States are 11 times more likely than children elsewhere to be killed accidentally with a gun (7).

As a result of data such as these, the medical profession came to recognize a role for physicians in preventing gun injuries, particularly to children. The American Medical Association adopted a policy on prevention of firearm accidents involving children that encourages its “members to (a) inquire as to the presence of household firearms as a part of childproofing the home; (b) educate patients to the dangers of firearms to children; (c) encourage patients to educate their children and neighbors as to the dangers of firearms; and (d) routinely remind patients to obtain firearm safety locks, to store firearms under lock and key, and to store ammunition separately from firearms” (2). Other medical organizations, including the American Academy of Pediatrics (8) and the American Psychiatric Association (9), followed suit. Guidance exists for physicians on how best to counsel patients, and research suggests that patients are more likely to comply with gun safety recommendations after physician intervention (10).

Responding to the medical profession’s adoption of gun safety as a medical and public health concern, the Florida legislation, called the Firearm Owners’ Privacy Act, sought to take discussion of firearms out of the clinical setting. Among its provisions was a requirement that physicians refrain from asking patients about firearm ownership unless a doctor believed in good faith that the information was medically relevant. Simultaneously, physicians were barred from recording in medical records firearm-related information that they knew not to be relevant to patients’ medical treatment or safety or to the safety of others. In addition, physicians were precluded from harassing patients about firearm ownership and discriminating against them on the basis of their possession of a gun. Failure to abide by the law could lead to sanctions by the state Board of Medicine, including fines, suspension, or revocation of a physician’s medical license (11).

Shortly after the Florida law was passed, three physicians—including Dr. Wollschlaeger —and several medical organizations filed suit in federal court to block its implementation. They argued that the statute was an unconstitutional infringement on their freedom of speech, protected by the First Amendment to the U.S. Constitution, and that its provisions were vague and overbroad. The federal district court judge hearing the case agreed, initially issuing a temporary injunction blocking implementation of the law and later, after a full hearing, making that injunction permanent (12). The media quickly dubbed the case “Docs vs. Glocks,” and the state appealed the ruling to the U.S. 11th Circuit Court of Appeals. The appeal began an unusual process of consideration and reconsideration by the federal circuit court.

As is typically the case, a three-judge panel was appointed to hear the appeal. When a constitutional challenge is brought to a statute, the court must decide whether a constitutional right is implicated, and if it is, whether the state’s limitation of that right is justifiable. If the court decides that no fundamental constitutional right is at issue, the state must demonstrate merely that the statute bears a rational relationship to a legitimate state goal. Statutes judged under this so-called “rational basis test” almost always are found constitutional. However, if a fundamental constitutional right is deemed to be at stake, one of two more stringent tests will be applied. Depending on the nature of the right asserted, the court could choose to judge the statute according to either “intermediate scrutiny” or “strict scrutiny.” Intermediate scrutiny requires the state to show that the law furthers an important governmental interest by means that are substantially related to that interest. In contrast, strict scrutiny demands that the state prove that the law furthers a compelling governmental interest, is narrowly tailored to promote that interest, and that there are no available means to that end less restrictive of citizens’ rights. When a court declares that it will apply a strict scrutiny test, the statute in question is almost always found unconstitutional. Hence, the outcome of a constitutional challenge to a statute usually correlates strongly with the test that the court decides to apply.

In its initial consideration of Florida’s appeal, the 11th Circuit’s panel ruled 2–1 that the law limiting physicians’ inquiries about firearms constituted a legitimate exercise of the state’s power to regulate the medical profession and that any burden on physician speech was merely incidental. Hence, the lowest standard of review—whether there was a rational basis for the state to adopt the statute—was applied and the law was upheld (13). Losing parties in the circuit court can ask for review by a panel of all the appellate judges in that circuit (procedures differ across circuits, but in general at least 11 judges participate in these so-called en banc hearings), but such requests are rarely granted (14). That was precisely the step taken by Dr. Wollschlaeger and his fellow plaintiffs.

However, before the judges of the 11th Circuit could vote on the request for a rehearing en banc, the original panel of judges did something quite unusual: they withdrew their opinion, rewrote it, and issued a new decision. Although the core of the ruling did not change—the statute was still found constitutional—the two judges who comprised the majority now acknowledged that the law did infringe on physicians’ First Amendment rights. But they held that because the speech in question took place in the context of a professional relationship, only intermediate scrutiny was warranted. Applying that standard, the majority found that Florida was pursing an important interest—protecting the rights of its citizens under the Second Amendment to keep and bear firearms—and hence the law did not violate the Constitution (15). Why this unusual step? It seems probable that, in the wake of criticism of their initial decision, the judges became concerned that they had underestimated the First Amendment implications of the statute and wanted to insulate their decision from being overturned on review.

The story, though, did not end there. Once more, Dr. Wollschlaeger and his colleagues requested review en banc, and once more, before that request could be considered, the majority withdrew its opinion, this time in the light of an intervening U.S. Supreme Court decision in a case that held strict scrutiny should apply whenever the government singles out specific content for restriction (16). The judges reheard arguments and then again rewrote their opinion. On this third go-round, the two judges in the majority went a step farther than before. Without deciding directly that the statute sufficiently impeded physicians’ freedom of speech to warrant strict scrutiny—the highest standard of review—the majority concluded that even if that standard were applied, the law in question would survive (17). Because statutes rarely survive review under strict scrutiny, the majority’s final opinion suggested that there were no constitutional concerns with limiting physicians’ inquiries into their patients’ possession of firearms.

Predictably, the plaintiffs in Wollschlaeger requested en banc review and, although less than 1% of such requests are granted, the 11th Circuit agreed. Sitting as a whole, the appellate court had a very different view of the Florida law. Judge Adalberto Jordan, writing for the largest group of justices, noted that the Florida legislature had been moved to act by six anecdotes, suggesting his skepticism about the need for the law. Moreover, it was clear to him that the statute targeted particular speakers, namely physicians, and specific content, questions about firearms. Such content-based restrictions typically trigger the highest standard of review—strict scrutiny—but Judge Jordan held that the court did not need to adopt that approach. In a clear rebuke of the repeatedly revised opinions of the three-judge panel, he wrote that three of the four challenged provisions in the law—its prohibitions on asking about firearms, recording the answers in the medical record, and “harassing” patients with guns to take protective measures—failed even intermediate scrutiny of its impact on physicians’ First Amendment rights. Only the law’s prohibition on discriminating against patients because of gun possession was upheld (1).

Many physicians will be relieved by the en banc court’s decision in Wollschlaeger, which upheld physicians’ rights to engage patients in discussion of those issues that physicians believe important for patient care. However, the Florida statute that was struck down by the 11th Circuit represents just one recent legislative attempt to control clinicians’ speech, either by compelling them to convey certain information (such as in the context of abortion decisions) (18) or prohibiting them from doing so (such as when related to efforts to change sexual orientation) (19). Several of those statutes have been upheld by the courts, leaving the degree to which the state can regulate clinician speech somewhat in doubt, even after Wollschlaeger. Moreover, some legal commentators are unmoved by the 11th Circuit’s suggestion that all content-based restrictions on physician speech are suspect, because it seems clear that the state may have a variety of legitimate interests in regulating clinician-patient interactions. Examples include requiring disclosures of sufficient information to enable patients to make informed decisions about treatment and sanctioning abusive or otherwise offensive comments. Thus, it has been proposed that asking whether a prohibited or required communication is consistent with professional standards of care would be a better way of determining the legitimacy of regulation than uniform application of strict scrutiny (20).

The final word may not be in on the Florida law: it is not clear at this writing whether the state will ask for review by the U.S. Supreme Court or whether the court would agree to hear the case. For now, however, the 11th Circuit’s decision is likely to discourage other states from adopting “gag laws” like Florida’s and perhaps will slow regulation of other aspects of clinicians’ speech. But the intrusion of America’s culture wars into the clinical consulting room is almost certainly not at an end.