In the long-running legal challenge by Florida pediatricians to a state law limiting what they can say to patients about the dangers of guns in the home (a case known by many as “Docs vs. Glocks”), a federal appeals court last week issued a resounding decision striking down the portions of the law regulating physician speech as a violation of the First Amendment. The Court sat en banc with all eleven members participating; only one judge dissented. The ruling is significant, not just as a vindication of freedom of speech, but for its broader implications in an era in which truth is portrayed by a key Presidential advisor as the outcome of a power struggle between one set of facts and another set of “alternative facts.”
The appeals court understood the Florida physician gag law for what it is: an effort to suppress speech by physicians based on the content of that speech. The statute prohibits doctors from “unnecessarily harassing a patient about firearms ownership during an examination,” whatever that means, and applies so broadly that it makes illegal a doctor’s use of an intake questionnaire that simply asks about firearms in the home and retains the answer in the patient’s medical records. It does not bar “unnecessary harassment” of patients about other health risks, like smoking, or failing to keep poisons locked away from children, or inconsistently taking prescribed blood pressure medication. Nor does it prohibit physicians from asking any other questions on intake questionnaires or recording the answers. As the Court noted, the speech-restrictive provisions “apply only to the speech of doctors and medical professionals, and only on the topic of firearms ownership.” Why did the Florida legislature feel it necessary to enact special restrictions on what doctors can say about guns?
Florida officials asserted that the statute was necessary to protect the Second Amendment rights of Floridians to keep and bear arms. But, of course, doctors do not have the authority to restrict the ownership of guns by patients; only governments can infringe on Second Amendment rights. What was really being asserted by the State is that gun owners must be protected from exposure to facts about the health risks of firearm ownership that may make them uncomfortable, particularly when those facts are invoked by highly credible speakers like physicians. The Court responded: “The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism of the exercise of that right.”
The Florida legislators who enacted the gag law, and the National Rifle Association that championed it, didn’t want gun owners and prospective gun owners to know that, according to multiple studies, bringing a gun into the home actually increases the risk of homicide and suicide in the home. They didn’t want the public to know that guns in the home are far more likely to be used to kill or injure in criminal assaults (often domestic assaults of women), suicides and unintentional shootings than in self-defense shootings. As the Court of Appeals concluded, “Florida may generally believe that doctors and medical professionals should not ask about, nor express views hostile to, firearm ownership, but it ‘may not burden the speech of others in order to tilt the public debate in a preferred direction.’” (Citation omitted.) As the Court clearly understood, the Florida gag law was all about tilting the public debate over guns in a preferred direction.
The Court noted the absence of any evidence that routine questions to patients about firearms ownership were medically inappropriate or leading to unsound medical advice. But even if patients felt that advice being given was questionable, they were certainly free to ignore it, or dispute it, or seek other medical advice or sources of information. As the Supreme Court has observed time and again, a core First Amendment ideal is a robust “marketplace of ideas,” in which the truth is likely to emerge from a multitude of competing views expressed without restriction, allowing reason and evidence ultimately to prevail. The suppression of speech is the antithesis of this ideal, but it was the whole point of the Florida gag law. In an eloquent concurring opinion, Judge William Pryor, who was on President Trump’s very short list for the Supreme Court and is an ardent proponent of broad Second Amendment rights, wrote that such content-based restrictions of speech “threaten the existence of ‘an uninhibited marketplace of ideas in which truth will ultimately prevail.’ “(citation omitted).
The gun lobby is, in fact, terrified of a robust “marketplace of ideas” informing the gun debate. The Florida gag law is but one of a series of NRA efforts to tilt the public debate over guns by limiting the capacity of speakers to develop and communicate facts about the impact of guns on American society and the effectiveness of gun laws. When crime gun trace data began generating evidence of the massive flow of guns from a minority of licensed gun dealers into the criminal market (thus suggesting that tighter regulation of the legal market could reduce the trafficking of guns to the illegal market), the NRA’s Congressional allies enacted the Tiahrt Amendments limiting disclosure of the crime gun trace database to researchers and the public. When government-supported research generated peer-reviewed studies documenting the increased risk from guns in the home, the NRA successfully lobbied Congress for an appropriations rider directing that no injury-research funding at the Centers for Disease Control and Prevention could go to research that could be “used to advocate or promote gun control.” No restrictions were placed on CDC research that could be used to oppose gun control.
In its zeal to promote the exercise of the right to be armed by as many Americans as possible, the NRA is quite willing to limit, by any means, a true “marketplace of ideas” about guns and gun violence. The NRA offers its “alternative facts,” in the now-infamous phrase of Presidential Counselor Kellyanne Conway, and then uses its influence in state legislatures and Congress to tilt the debate by limiting scientific inquiry to inform the issues, as well as the dissemination of evidence and argument that undermine the tenets of the pro-gun ideology (e.g. “Guns don’t kill people. People kill people.”).
In the arena of public affairs, we may be entering an era when “truth” becomes redefined as whatever set of “alternative facts” can be imposed on the public by those with the power to do so. If that is the path we are on, the NRA has been a trailblazer.
At least for now, in one seminal case, a federal court, and the Constitution, stood in the way.