by Joseph Blocher, Professor of Law, Duke Law School
Last week, the en banc Eleventh Circuit struck down a Florida law limiting doctors’ freedom to speak to their patients about guns. The decision in Wollschlaeger v. Governor—also known as the “Docs v. Glocks” case—is a victory for the First Amendment, and no threat to the Second.
The American Medical Association, American Academy of Pediatrics and American Academy of Family Physicians all encourage their members to ask patients about firearms in the home, and to stress the importance of firearm safety. In 2011, based on what the court characterized as “six anecdotes” of patients complaining about doctors’ questions or comments about guns, Florida adopted the Firearms Owners’ Privacy Act, which restricted doctors’ ability to speak with their patients about firearms.
As Eugene Volokh has explained, the law limited doctors’ ability to ask patients whether they own guns, generally forbade them to record disclosed information about gun ownership, and banned them from “unnecessarily harassing a patient about firearm ownership during an examination.”
Each of these provisions, the Eleventh Circuit held, violates the First Amendment—even if they are not considered to be viewpoint-discriminatory, and even if evaluated under heightened rather than strict scrutiny. (The court severed and upheld a separate provision providing that doctors “may not discriminate against a patient based solely upon the patient’s exercise of the constitutional right to own and possess firearms or ammunition.”)
Free speech advocates will find this result unsurprising, especially in light of the Supreme Court’s decision 2015 in Reed v. Town of Gilbert, which indicated a broad scope for the content-discrimination principle and the strict scrutiny that comes with it. And yet Wollschlaeger has drawn a great deal of attention, in part due to the common misperception that it presents a conflict between the First and Second Amendments.