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First Amendment applies to Florida doctors, too

Staff
Published:   |   Updated: May 7, 2013 at 04:44 PM

Once again, at taxpayer expense, a judge has been forced to teach Gov. Rick Scott that the U.S. Constitution applies in the state of Florida.

The latest constitutional law lesson involves doctors' free speech rights to discuss with patients the safety risks posed by firearms.

The teacher in this case is U.S. District Judge Marcia Cooke of Miami, who was appointed to the federal bench in 2004 by President George W. Bush.

After a year of litigation involving a number of Florida doctors, the American Civil Liberties Union and the National Rifle Association, Cooke became the latest judge to find yet another Florida law unconstitutional.

During the past 10 months, state and federal judges have found unconstitutional a number of Florida laws and executive orders signed by Gov. Scott. Among them: requiring drug testing for state workers and welfare applicants, requiring members of the Florida Retirement System to contribute 3 percent of their salaries to the pension fund, attempting to privatize 29 state prisons through budget proviso language, prohibiting companies from bidding on state and local government contracts if they do business in Cuba or Syria, and requiring voter-registration groups to submit signed forms within 48 hours of collecting them.

This time, the "Firearm Owners' Privacy Act" was declared a violation of the First Amendment which, of course, prohibits the government from enacting any law that abridges freedom of speech.

A significant minority from both parties voted against the bill, which opponents called the "Physician Gag Law." But it passed and last June, the governor signed it into law.

The FOPA law, among other things, ordered all doctors in Florida to "refrain" from asking their patients any questions about owning a firearm or the presence of a firearm in their home. Such questions were allowed only when the doctor "in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others."

Doctors violating the law were exposed to the loss of their medical licenses and fines of up to $10,000.

The legislature's "privacy" approach to regulating free speech was similar to a law enacted in 2008, called the "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act." That law, still in the books, forbids employers from "violating their employees' privacy rights" by asking them if they keep a firearm in their car at work.

The doctors argued in court that the firearms privacy law would interfere with the doctor-patient relationship and hinder preventive medical care.

The State of Florida, represented by Attorney General Pam Bondi, argued that the doctors' concerns were unwarranted and that the new law was merely "a run-of-the-mill anti-discrimination law." She argued that the "primary constitutional right at issue" was not the First Amendment, but the right to "keep and bear arms" under the Second Amendment.

Judge Cooke, in a final judgment entered this week, permanently enjoined the governor from enforcing the law because it violates the doctors' First Amendment free speech rights. She also found the law "in no way affects" a patient's gun rights under the Second Amendment.

As often happens in such contentious disputes between well-financed litigants, expect an appeal.

In the interim, however, there is a simple, common-sense solution to the privacy concerns expressed in the invalidated state law. A patient may simply decline to answer or provide any information to a doctor regarding firearm ownership or possession. Or get a new doctor.

In the U.S. Constitution, this is known as freedom to contract. To the best of my knowledge, this right still exists in Florida.


Angel Castillo, Jr., a former reporter and editor for the New York Times and The Miami Herald, practices employment law in Miami. He can be reached at acastillo@floridavoices.com.
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