Abstract
The physician–patient relationship rests on a bedrock of trust. Without trust, patients—and for that matter, physicians—are less willing to divulge information critical to providing accurate medical diagnoses and treatments. The state of Florida seemingly ignored this when its legislature, with support from the National Rifle Association and other pro-gun advocates, enacted the Firearm Owners Privacy Act (FOPA), a statute that restricts physicians from questioning their patients about firearm ownership. In Wollschlaeger v. Governor of Florida , the United States Court of Appeals for the Eleventh Circuit held that FOPA did not regulate physician speech but, instead, regulated physician conduct. As such, the law was exempted from First Amendment scrutiny. But almost one year to the day after publishing its first Wollschlaeger opinion, the Eleventh Circuit sua sponte vacated its original opinion and substituted in its place a brand new opinion—one holding that FOPA was subject to First Amendment scrutiny, but nonetheless passed constitutional muster.
This Note uses the diverging Wollschlaeger opinions as a vehicle to analyze the First Amendment’s coverage and protection of physician speech. Specifically, it argues that an uninhibited line of communication is required to protect the trust necessary for an effective physician–patient relationship. This logical underpinning leads to the conclusion that the First Amendment presumptively covers physician speech and, furthermore, that physician speech should be subject to intermediate scrutiny—a level of scrutiny that FOPA cannot meet.
Citation
Ryan T. Weiss,
Removing the "Silencer": Coverage and Protection of Physician Speech Under the First Amendment,
65 Duke Law Journal
801-842
(2016)
Available at: https://scholarship.law.duke.edu/dlj/vol65/iss4/4