Professional-Client Free Speech and The Medical Privacy Concerning Firearms Act
By David H. Slade1, Southern Illinois University J.D./M.D. Program, Carbondale, IL
On June 02, 2011 Florida Governor Rick Scott signed into law an Act entitled “Medical Privacy Concerning Firearms,” written to protect gun owners against harassment, discrimination, and invasion into their privacy.2 The legislation came in response to an incident in Florida, where a pediatrician questioned the mother of a patient about the presence of firearms in the home.3 The mother declined to answer, which led to a disagreement; the physician then responded by terminating the relationship and allowing the patient 30 days to find a new physician.4 Pediatricians currently inquire into gun ownership in accordance with an American Academy of Pediatrics (AAP) policy which recommends advising patients on the proper storage of firearms.5 Furthermore, AAP takes the position that the home and community are safer in the absence of firearms completely.6 Many gun owners disagree and see this as an inappropriate intrusion on their rights.
I. Elements of the Law
The Medical Privacy Concerning Firearms Act prohibits a healthcare provider from asking a patient about gun ownership, but provides an exception for cases where the provider in good faith believes that the information is relevant to the patient’s medical care or safety, or the safety of others.7 The law states, in relevant part:
A health care provider or health care facility shall respect a patient's right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient.8
The law further prohibits physicians from recording gun ownership information in the medical record unless medically relevant, and bars any discrimination based on gun ownership.9 It expressly states that the patient may decline to answer any questions about gun ownership, but also that the provider’s right to choose his or her patients is not altered.10 The law declares that the patient’s right to privacy is protected by not allowing the physician to harass or inquire unnecessarily into the question of gun ownership.11
II. Prospects for Similar Legislation in Other States, Federal Law
It remains to be seen whether passage of this legislation will begin a widespread national trend; however, this possibility certainly exists. North Carolina and Alabama are now considering similar legislation.12 In 2006, Virginia and West Virginia considered comparable legislation, although those bills failed to pass.13
The recently enacted federal healthcare reform law also contains a provision relevant to the issue. There is a section within Title X of the Patient Protection and Affordable Care Act (PPACA) entitled “Protection of Second Amendment Gun Rights,” which bars wellness and prevention programs from requiring disclosure of gun ownership information.14 This provision was included after successful lobbying efforts by gun owner interest groups.15 It is unclear if physician groups voiced any opposition to this specific provision in PPACA or, in light of the numerous provisions in PPACA, how much attention it raised.
III. First Amendment Analysis
The Medical Privacy Concerning Firearms Act has already generated much controversy, and is now facing legal challenge on the basis of its infringement on physicians’ right to free speech.16 The Florida Chapter of the American Academy of Pediatrics, in conjunction with two other physician groups, has announced plans to file a lawsuit.17 What are the chances of success of the suit?
a. Category of Speech Defined
In order to decide whether the Florida legislation complies with the First Amendment, it must first be determined what category of speech is being regulated. It is well established that restrictions on political and religious speech are reviewed under strict scrutiny.18 Other categories, such as commercial speech, may be subject to a more lenient standard. The speech at issue in the Florida legislation is not commercial speech in the classic sense. Rather, it is in its own category: speech between a professional and client. How should this “professional-client” speech be treated under the First Amendment?
b. No Test Established for Professional-Client Speech
The most recent pertinent Supreme Court case is Milavetz v. U.S., decided in 2010.19Milavetz involved a First Amendment challenge to the federal Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) by a group of law firms subject to its provisions.20 BAPCPA regulates speech in two ways: (1) by barring attorneys from advising their clients to incur more debt while in the process of contemplating bankruptcy, and (2) by requiring attorneys to make certain disclosures when advertising their bankruptcy-related services.21 The former restriction regulates “professional-client” speech. The latter regulates commercial speech in the form of advertising.
The Eighth Circuit Court of Appeals first considered the case in 2008. After quickly disposing of the commercial speech/advertising issue, the court turned its attention to professional-client speech. The plaintiff and defendant agreed that this was a distinct category of speech, but argued for different tests to apply.
The plaintiff advocated for strict scrutiny, arguing that the restriction on speech was made on the basis of its content.22 The defendant contended that the restrictions were a type of ethical regulation, and thus should be subject to a “more lenient standard.”23 However, the Court declined to decide on the applicable standard, instead finding that the restriction on speech was overbroad irrespective of what standard was applied.24
On appeal, the Supreme Court reversed on the issue of professional-client speech, finding that the lower court erred in holding the restriction was overbroad.25 The statute was not so vague as to not withstand intermediate scrutiny.26
As to the proper test to be applied, the Court noted that a decision on the proper test was not required, because the issue was not preserved on appeal.27 The opinion declares, “…because Milavetz challenges the constitutionality of the statute, as narrowed, only on vagueness grounds, we need not further consider whether the statute so construed withstands First Amendment scrutiny.”28
c. Application to Florida Medical Privacy Concerning Firearms Act
A legal challenge to the Florida law is likely to invoke the Milavetz case and raise the issue of professional-client speech. At this juncture, the court may be called upon to decide what level of judicial scrutiny should be applied to this unique category of speech.
IV. Privacy Interests and Regulation of the Physician-Patient Relationship
The multiple privacy interests at issue in this legislation also raise an interesting question regarding Fourteenth Amendment rights in the context of the physician-patient relationship. Opponents of the law have criticized the manner in which the state asserts control over this interaction.
Some support for this position can be found in the Supreme Court’s opinion in Doe v. Bolton.29 Justice Douglas, in his concurring opinion, noted that, “the right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship.30 ” He acknowledged that this right to privacy is firmly grounded in the Fourteenth Amendment.31 While Doe dealt with a far different matter - rules on the medical decision making regarding abortion - Justice Douglas defended the physician’s assertion that the state was, “interfere[ing] with th[e] practice of their profession.32 ” This lends support to the special nature of the physician-patient relationship, and indicates that the state must have a compelling interest to intrude upon it. It raises an interesting question regarding the degree and manner with which the state should regulate the interaction between physician and patient. Congress has traditionally chosen to not regulate the medical profession in ways that would interfere directly with the judgment of the physician, although the 2006 Supreme Court case of Gonzales v. Carhart indicates that Congress may have the power to do so.33
The passage of the Medical Privacy Concerning Firearms Act raises a number of significant questions, including the proper test for free speech in the context of the professional and client and the role of government in regulating the physician-patient relationship. The proponents of the law may defend it based on the legitimate interest of defending against harassment and discrimination. Both those for and against it appear to have valid privacy interests at stake. Whether the Florida law will withstand legal challenge and/or launch a national trend remains to be seen but will likely be determined in the upcoming months.
Candidate for J.D./M.D. Class of 2012. Southern Illinois University School of Law, Lesar Law Building, Carbondale, Illinois 62901, USA.
|2 ||Fla. Stat. § 790.338|
Amednews.com, Physicians, Gun Owners Tangle Over Florida "Don't Ask" Gun Bill. http://www.ama-assn.org/amednews/m/2011/01/31/gsa0131.htm, Jan. 31, 2011.
American Academy of Pediatrics, Firearm-Related Injuries Affecting the Pediatric Population. http://aappolicy.aappublications.org/cgi/content/full/pediatrics;105/4/888#SEC14
Privacy of Firearm Owners, FL H.B. 155 , 2011.
No Firearm Questions During Medical Exams. NC S.B. 765. 2011.http://www.ncga.state.nc.us/Sessions/2011/Bills/Senate/HTML/S765v0.html; and AL H.B. 516. 2011. http://alisondb.legislature.state.al.us/acas/ViewBillsStatusACASLogin.asp?BillNumber=hb516
Cosgrove, Lisa A. Perspective – Florida Legislators Dictate Patient-Physician Relationship. Elsevier Global Medical News. http://infoviewer.biz/infodisplay/story/imn050520111236014896.html?APP=7&CU=imn5804. Last Accessed May 19, 2011.
Patient Protection and Affordable Care Act, Section 2716(c), 111 P.L. 148.
|15 ||KGW.com, Concessions lawmakers won in the health bill, Dec. 22, 2009. http://www.kgw.com/news/business/79849417.html. Last accessed May 19, 2011.|
Sexton, Christine Jordan. Lawyers, guns and doctors: Legal battle coming over gun measure. The Florida Current, June 02, 2011. http://www.thefloridacurrent.com/article.cfm?id=23225962; and
“In sum, if CS/CS/HB 155 becomes law, it will deprive healthcare professionals throughout the state of Florida of their rights under the First Amendment to freedom of speech…”
Deslatte, Aaron. Pediatricians, family and college physicians threaten lawsuit over docs v. glocks bill. Central Florida Political Pulse. June 02, 2011.
“This prohibition may be subject to challenge as violating one’s First Amendment right to freedom of speech”. Cunningham. Florida House of Representatives Staff Analysis: H.B. 155 Privacy of Firearm Owners. March 09, 2011. link here; and
Note 17, supra
“Under strict scrutiny review, the government has the burden to prove that the constraints on speech are supported by a compelling governmental interest and are narrowly tailored, such that the statutory effect does not prohibit any more speech than is necessary to serve the governmental interest.” Republican Party of Minnesota v. White, 536 U.S. 765, 774-75, 122 S. Ct. 2528, 153 L. Ed. 2d 694 (2002).
Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324 (U.S. 2010) .
Id. at 1330.
|22 ||Milavetz, Gallop & Milavetz, P.A. v. United States, 541 F.3d 785, 793 (8th Cir. Minn. 2008).|
|23 ||This “more lenient standard” balances the First Amendment rights of the professional, whose speech is restricted, against the government interest in restricting speech, then makes a determination of whether the restriction imposes “only narrow and necessary limitations on [the professional’s] speech.” Gentile v. State Bar of Nev., 501 U.S. 1030, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991)|
Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1339 (U.S. 2010).
|26 ||Intermediate scrutiny requires that a restriction on speech "directly advances" a "substantial" governmental interest and is "not more extensive than is necessary to serve that interest." Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 573 (U.S. 1980)|
Doe v. Bolton, 410 U.S. 179, 219 ( U.S. 1973).
|30 ||Id. at 219.|
“The right of privacy -- the right to care for one's health and person and to seek out a physician of one's own choice protected by the Fourteenth Amendment -- becomes only a matter of theory, not a reality, when a multiple-physician-approval system is mandated by the State.” Id.
Gonzalez v. Carhart cites the Commerce Clause (USCS Const. Art. I, § 8, Cl 3) as authority for Congress to regulate the medical profession. The Commerce Clause has traditionally provided broad authority for Congress to regulate activity related to interstate commerce.
“The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce.” United States v. Lopez, 514 U.S. 549 (U.S. 1995);
“This is too exacting a standard to impose on the legislative power, exercised in the instance of the Partial-Birth Abortion Ban Act of 2003, 18 U.S.C.S. § 1531, under the Commerce Clause, to regulate the medical profession.”
Gonzales v. Carhart, 550 U.S. 124, 166 (U.S. 2007). See also
Annas, George J. Medical Judgment in Court and in Congress. ABA Human Rights Vol. 34, No. 4. Fall 2007. http://www.americanbar.org/publications/human_rights_magazine_home/irr_hr_fall07_annasfall07.html
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