If you’re at all a fan of the First Amendment, there was plenty to like about today’s decision by the 11th U.S. Circuit Court of Appeals striking down a Florida law that prohibited doctors from asking whether there are guns in the home (here’s the full law in question).
But let’s focus on the concurring opinion of William Pryor, who was on the short list to replace Justice Antonin Scalia on the U.S. Supreme Court.
Pryor is a conservative, so he took great pains to point out that the decision is not about the Second Amendment; it’s about the First.
And much of his opinion was aimed strictly at conservatives, apparently anticipating their criticism.
Here’s some examples.
If we upheld the Act, we could set a precedent for many other restrictions of potentially unpopular speech. Think of everything the government might seek to ban between doctor and patient as supposedly “irrelevant” to the practice of medicine. Without the protection of free speech, the government might seek to ban discussion of religion between doctor and patient. The state could stop a surgeon from praying with his patient before surgery or punish a Christian doctor for asking patients if they have accepted Jesus Christ as their Lord and Savior or punish an atheist for telling his patient that religious belief is delusional.
Without the protection of free speech, the government might seek to censor political speech by doctors. The state might prevent doctors from encouraging their patients to vote in favor of universal health care or prohibit a physician from criticizing the Affordable Care Act. Some might argue that such topics are irrelevant to a particular patient’s immediate medical needs, but the First Amendment ensures
that doctors cannot be threatened with state punishment for speech even if it goes beyond diagnosis and treatment.
Pryor said doctors already discuss highly controversial topics with patients. Whether to play football, or telling teenagers to abstain from sex, and recommending organ donation.
He called the very idea a “thought experiment” and then lowered the boom with this beautiful piece of prose:
“If today the majority can censor so-called ‘heresy,’ then tomorrow a new majority can censor what was yesterday so-called ‘orthodoxy.’”
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . . .” Our decision applies this timeless principle to speech between doctors and patients, regardless of the content. The First Amendment requires the protection of ideas that some people might find distasteful because tomorrow the tables might be turned.
Today’s decision was not close. The vote was 10-to-1.
The one belonged to Gerald Bard Tjoflat, who is 87 years old and is the longest-service justice in the U.S. Court of Appeals system.
He does see the case as a Second Amendment question:
The majority and I agree that Florida possesses a substantial interest in protecting both Floridians’ reasonable expectation of privacy during medical treatment and the full exercise of their Second Amendment rights. If that is so, then it is hard to imagine a law more precisely tailored to advance those substantial state interests than the one presently before us. The Act does not categorically restrict the speech of medical professionals on the subject of firearms. Instead, it simply requires an individualized, good faith judgment of the necessity of speech related to firearm ownership to provide competent medical care to a patient.
“… a constitutional right is a right to be free of governmental restrictions on the exercise of the right — it is not a right to be free of private criticism for the exercise of the right, much less private questions about the exercise of the right,” law professor Eugene Volokh in his Washington Post column analyzing today’s decision. “A doctor no more violates your Second Amendment rights by asking you about whether you own a gun than the doctor violates your First Amendment rights by asking you how much TV your children watch, or your Lawrence v. Texas sexual autonomy rights by asking you whether you’ve been having sex with multiple partners.”
Here’s the court’s full opinion: