The First Amendment has, recently, been a tool of reaction. Citizens United, banningthe FDA mandated graphic cigarette warnings have been defeats for citizens and consumer protection based upon the First Amendment right of free speech. But finally the tables have turned. Florida's ban on physiicams warning their patients about the dangers of gunn possession has been overturned. - gwc
Wendy E. Parmet, J.D., Jason A. Smith, J.D., and Matthew Miller, M.D., Sc.D.
April 12, 2017DOI: 10.1056/NEJMp1702516
In February, the full U.S. Court of Appeals for the Eleventh Circuit issued its long-awaited ruling inWollschlaeger v. Governor, State of Florida, invalidating parts of Florida’s Firearm Owners’ Privacy Act (FOPA) and affirming that the First Amendment applies to the speech between physicians and patients. The decision ensures that physicians may continue to make efforts to protect their patients from gun-related injuries, many of which are fatal and which in aggregate account for approximately as many deaths annually as do motor vehicle accidents.
Passed in 2011, the FOPA is similar to legislation that has been introduced, but not enacted, in at least 10 other states.1 The law prohibits physicians from routinely asking patients about firearm ownership, routinely entering any information on firearm ownership into patient records, discriminating against patients on the basis of firearm ownership, and “unnecessarily harassing a patient about firearm ownership.”2 After its enactment, local physicians and medical associations challenged the FOPA in federal court, arguing that by placing these content-based restrictions on physicians’ speech, the Act violated the First Amendment. The District Court agreed and stopped enforcement of the law. The State of Florida appealed to the Eleventh Circuit. In an unusual course of events, three opinions of a three-judge panel of the Court of Appeals were issued and then vacated before the full, or en banc, court decided to rehear the case.
The full court disagreed with the panel, striking down most of the FOPA’s provisions by a resounding vote of 10 to 1. Continuing the pattern of procedural curiosities, the court issued two majority opinions. The lead opinion, which focused on the First Amendment claim, was authored by Judge Adalberto Jordan, an Obama appointee, and joined by eight other judges. The second opinion, written by Clinton appointee Judge Stanley Marcus and joined by six other judges, concluded that the FOPA’s antiharassment provision was unconstitutionally vague. Judge Gerald Tjoflat, a Ford appointee, who had authored the three previous panel decisions, wrote the lone dissent.