In 2011, the Florida legislature passed the Firearm Owners’ Privacy Act (“the Act”) to protect patients from unethical practices of licensed physicians. The standard practice of some physicians to ask every patient whether they own a firearm – even when it had nothing to do with the patient’s care – was too often resulting in the mistreatment of patients.
Patients were being deprived of medical care based on firearm ownership. For example, a pediatrician refused to treat a nine-year-old, and a four-month-old’s relationship with her pediatrician was terminated. In other incidents, a father was asked to get rid of his firearm, and a patient was lied to about having to disclose his firearms as a Medicaid requirement. There were many other reported incidents, and likely far more unreported incidents in which patients suffered from similar boundary violations. Recognizing that it had an obligation to protect its citizens from being exploited by its licensed professionals, the State passed the Act.
The Act is a narrow law that only prevents doctors from asking whether a patient owns a firearm – and then only when the doctor herself believes the question is irrelevant to the patient’s care. So at its most burdensome, the Act prevents physicians from demanding irrelevant personal information from patients.
This means that physicians can still convey absolutely any information about firearms to any patient. There is no restriction on a physician’s ability to teach patients about the dangers of firearms. Physicians can treat every patient as if they were a firearm owner, or were strongly considering purchasing their first firearm. Physicians can even tell patients that they would be best off not owning a firearm. If a patient wants to discuss her personal firearms, the physician can freely engage in that discussion. And if the physician believes it is relevant to the patient’s care, the physician can ask all the questions she wants. Again, all a physician cannot do, is ask whether a patient actually owns a firearm when that has nothing to do with the patient’s care.
Nevertheless, the Act has been challenged in what is widely known as the Docs vs. Glocks case, which is currently before the en banc 11th Circuit Court of Appeals. The district court struck the Act for “aim[ing] to restrict a practitioner's ability to provide truthful, non-misleading information to a patient”—but, as explained above, the Act does not restrict a practitioner’s ability to provide any information in any situation. An 11th Circuit panel then reversed the district court, recognizing the State’s compelling interest in regulating the professions for the protection of the public; the State’s compelling interest in protecting the Second Amendment; the State’s compelling interest in eliminating barriers to healthcare access; the State’s compelling interest in protecting the right to privacy; the State’s compelling interest in preventing discrimination and harassment; and the Act’s minimal burden on professional speech.
While the Act has its opponents, they almost inevitably mischaracterize what the Act actually does. The Act does not “stop doctors from addressing an incredibly serious health-related topic.” The Act does not “stop doctors from addressing an incredibly serious health-related topic.” The Act does not “prevent doctors from sharing safety tips to keep those guns out of children’s hands.” The Act does not “ban physicians from talking about guns with their patients.” The Act does not prevent physicians from “counsel[ing] patients on matters that pose the greatest statistical risks to their health and well-being.” The Act only prevents physicians from inquiring about firearm ownership. And that limitation only applies when the physician believes it is irrelevant.
This begs the question, what interest do doctors have in knowing whether a patient owns a firearm, when that information is entirely unrelated to the patient’s care? The practice of asking has proven to lead to harassment, discrimination, and the deterioration of the doctor-patient relationship. Conversely, the practice of asking produces no demonstrable benefits. So to put the question differently, what about knowing whether each patient owns a firearm makes it worth permitting some patients to be mistreated by their physicians?
A recent article in the Washington Post offered a justification, by recounting a story in which a 7-year-old shocked his mother and his pediatrician during routine questioning by revealing that his friend’s father owned a firearm that was improperly stored. What the article elided is that the Act in no way prevents such information from being discovered. Nothing in the Act prevents a pediatrician from advising parents to find out whether their children’s friends have firearms in their homes – and if so, whether the firearms are safely stored. Indeed, absolutely any advice or information can be safely conveyed by the physician in accordance with the Act.
It is important to note that courts (including the Supreme Court) have long accorded professionals substantially limited First Amendment rights. This is permissible because of the unique authority inherent to professionalism, derivative of the specialized knowledge and skill required of professionals. This unique authority puts the public at heightened risk in dealing with professionals, and it is the reason why the courts have granted states so much leeway in regulating professions to protect the public.
To use physician speech as an example: physicians are commonly forced to provide patients with their educational and experiential qualifications, diagnoses, the planned course of treatment, the benefits and risks of the planned course of treatment, alternative treatments, statements of patient rights and responsibilities, and certain financial information. At the same time, physicians are commonly punished for failing to ask specific questions or make appropriate referrals, and are prohibited from communicating in a way that could be interpreted as romantic behavior. Of course the government could not force or prohibit a layperson from speaking the same way (see Wooley v. Maynard, 430 U.S. 705 (1977), in which the Court held that a person could not be required to convey the state motto on his license plate), but professionals are held to a higher standard in society, and are therefore subjected to greater regulation.
This, of course, makes sense. Patients put their lives in the hands of their physicians, and it would be wildly irresponsible for a state not to regulate the profession to ensure that its physicians are not harming the public. Florida learned that the physicians it licenses were harassing and discriminating against patients, and passed the Act to protect the public from this harmful behavior. Not only did Florida have the right to do so, it had an obligation to do so.
*Joseph Greenlee filed an amicus brief in the case on behalf of the Second Amendment Foundation and Citizens Committee for the Right to Keep and Bear Arms in support of the State.