WEST PALM BEACH – Courts need to change the way they examine laws limiting speech in professional situations, starting with the Florida law banning doctors from asking patients about gun ownership without a health reason, according to the Pacific Legal Foundation.
The foundation has filed a brief with the 11th Circuit Court of Appeals, which is preparing to hear another appeal of Wollschlaeger v. Governor of the State of Florida, claiming that any regulation on speech by professionals needs to be held to the same strict scrutiny as other regulations on speech. In this case, Florida hasn’t provided a valid reason for the law, nor shown that it is closely tailored enough, Caleb Trotter, an attorney with the Pacific Legal Foundation, said.
“The state has offered nothing that could provide any reasonable basis for, one, this law being necessary, and two, being closely connected to a real harm and tailored specifically to this harm,” Trotter recently told the Florida Record.
Speech between a professional, such as a physician, and a client has long been treated differently than other kinds of speech, Trotter said, and said most courts use two concurrences from the U.S. Supreme Court for guidance, including one from 1985’s Lowe v. SEC, as that’s the most in-depth guidance the country’s highest court has offered.
But, he said, as that concurrence, which suggests lesser scrutiny on laws restricting professional speech, was by one justice and didn’t have the backing of the majority of the court, they should instead treat professional speech restrictions the way all content-based speech restrictions are treated.
“Content-based restrictions should withstand strict scrutiny,” he said, “but the government should not be wary of that, and people should not be wary of that, because that means that speech is to be respected, and it's to be protected. That's a long-held core value of the United States. If the government is going to regulate [speech], it needs to have a very good reason for doing that, and if it does, then the courts will allow that to happen. That's what PLF has long advocated for.”
At the heart of Wollschlaeger v. Governor of the State of Florida, which has been reviewed three different times by the 11th Circuit and had three different opinions handed down, is a 2011 law that prohibits doctors in Florida from asking patients about gun ownership or gun possession without a valid medical reason to ask the question.
“This case, in some outlets, has been posed as some kind of First Amendment versus Second Amendment case, which is incorrect,” Trotter said. “Really it is a First Amendment case focused solely on this issue of professional speech and how much scrutiny that laws that regulate professional speech should get.”
In this case, he said, there wasn’t any evidence, apart from a few anecdotes, that doctors questioning patients about gun ownership was even happening, nor that it was causing patients to feel uncomfortable or causing them to seek out new doctors.
“Essentially, the state's argument is saying that they feel that they need to ban this speech because they fear it's too persuasive,” Trotter said. “And that's kind of a shocking position to take, and something that First Amendment doctrine absolutely has never said the government can do.”