By Eugene Volokh
It would be under a newly proposed Florida bill, which would criminalize (among other things) any “verbal or written inquiry by a public or private physician, nurse, or other medical staff person regarding the ownership of a firearm by a patient or the family of a patient or the presence of a firearm in a private home or other domicile of a patient or the family of a patient.”
That, I think, would violate the First Amendment, as well as just being a lousy idea. (If you don’t like your doctor’s asking you about guns, tell him it’s none of your business, or find a new doctor.) Here’s what I wrote about the subject when a similar bill was proposed in Virginia:
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The constitutional status of professional-client speech is unsettled. It seems pretty clear that the government has some extra power to regulate such speech, but I doubt that this power is or should be unlimited.
And this restriction seems to me to be well outside the proper limits of the government’s power here. The restriction isn’t limited to speech that is misleading or dangerous to patients; perfectly accurate and reasonable advice about preventing gun injury is covered alongside exaggeration and hysteria. Nor is this a requirement that doctors say extra things that the government thinks patients ought to know (such speech compulsions are generally forbidden, but may be constitutional when imposed on professional-client speech); this limits the information that doctors can give patients, rather than adding to such information.
he NRA argues that doctors’ advice about guns in “intrusive” and “unnecessary,” but it seems to me that the government needs much more than such beliefs to suppress speech. Speech can’t be banned just because the legislature believes it “unnecessary,” and absent unusual circumstances the sensible response by patients outraged by “intrusive” statements is to switch to a doctor they like better (or perhaps to warn their new doctor that they don’t want gun safety advice).
Timothy Wheeler, at the Claremont’s Institute “Local Liberty” blog, defended the Virginia law as aimed at preventing “boundary violations”: “With very few exceptions, a doctor’s probing of a patient about guns in the home is a politically motivated question. That makes it an ethical boundary violation, which is unprofessional conduct. Doctors are forbidden to misuse the trust of their patients to advance a political agenda such as gun control.” There’s no doubt that many medical organizations have taken political stands on gun control; the American Academy of Pediatrics, for instance, urges that handguns be banned. And it’s certainly quite possible that some doctors’ political prejudices lead them to give unsound advice, for instance exaggerating the risks to health of keeping firearms in the home, or ignoring the possible benefits (including to the owners’ health) of keeping firearms in the home.
But “liberty,” “local” or otherwise, includes the liberty to communicate views that are influenced by one’s ideology, without the government’s banning such speech on the theory that it is “unprofessional.” And it likewise includes doctors’ liberty to convey their professional views on the health threats that various behaviors — bicycling, playing sports, engaging in unsafe sex, storing guns in certain ways — pose.
I should note that the government has much more authority to control what its employees or contractors say (see, e.g., Rust v. Sullivan); but this law would apply to all doctors, not just those hired or funded by the government.