Free Speech under the Gun of Florida’s Occupational Licensing

EspañolBy Rebecca Furdek

While many US Americans would be happy to be relieved of awkward conversations with their doctors, one Florida law is silencing the medical profession for all the wrong reasons. Recently, the US Court of Appeals for the 11th Circuit upheld a 2011 law that criminalizes doctors who ask their patients if they own a gun.

The case, Wollschlaeger v. Governor of Florida, affirms the constitutionality of the Florida Firearm Owners Privacy Act, which threatens doctors with disciplinary action if they ask patients about gun ownership when not directly relevant to a patient’s “medical care.” Broadly, the court claims that asking questions constitutes medical care (professional conduct), and thus is not First Amendment-protected speech.

Regardless of whether inquiring about gun ownership is ever tangentially helpful to providing medical care or advice, laws like Florida’s hinder our First Amendment right to free speech — even if it’s socially awkward small talk at a doctor’s office.

Opponents of the law, such as the Brady Campaign to Prevent Gun Violence, believe that the freedom to ask this question ultimately promotes the public health. Unsurprisingly, there has been a media outcry from doctors and their allies since the law has passed, outraged at how the First Amendment is being “silenced by the Second.”

(NRA Facebook)
The National Rifle Association. (NRA Facebook)

Meanwhile, champions of the law, including the National Rifle Association (NRA), agree with the court. These strong lobby interests suggest a move to protect paleoconservative interests (such as gun rights) in light of scandals such as the recent targeting of Tea Party groups by the Internal Revenue Service. Proponents also believe that in many cases, it’s simply none of a doctor’s business.

The NRA may be absolutely right that a doctor has no reason to inquire about gun-ownership status. Such questioning may even be a result of the doctor’s ideological disdain for guns. However, the First Amendment allows for these annoying interactions.

In fact, both sides here are missing the greater danger that laws like Florida’s pose. The underlying problem is occupational licensing: a regime that increasingly places bureaucratic barriers to entry and onerous rules on almost one-third of all occupations.

The United States is replacing traditional labor employment with service-based professions which, by definition, rely heavily on interaction and speech. As such, the increase in broad licensing requirements has begun to blur into the realm of speech.

Sadly, this is not the first time that the professional-client relationship has been censored in recent years.

Last year, John Rosemond, the longest-running advice columnist in the United States, was told to stop writing simple parenting advice in a news column. A Kentucky attorney general determined his work to be occupational “conduct” that the state could regulate.

In North Carolina, the state Board of Dietetics/Nutrition redlined a layman’s blog, the Diabetes Warrior, about his experience with the Paleolithic diet. They also deemed his advice to others, such as “I do suggest that your friend eat as I do and exercise as best they can,” to be professional conduct. The board mandated 900 hours of nutrition-related classes before he could continue speaking.

This is censorship, plain and simple. If nothing else, these cases highlight the fallacy, illogic, and potential for political abuse of occupational-licensing regimes. The Florida law also presents a rare opportunity, in this era of unprecedented partisanship, for adherents of various ideologies to seek reform.

Progressives should be concerned with the clear potential for lobbyists to use occupational licensing to pass legislation for their self-interested goals. The cigarette lobby, for example, could readily pass a law making it illegal for doctors to ask their patients if they smoke. Likewise, civil libertarians should be concerned by the clear potential for abuse upon their own fundamental right to speak professionally.

In an era of bipartisan gridlock, maintaining our freedom to speak about all issues — even those we disagree on, such as gun ownership — is something all parties can get behind.

Rebecca Furdek is a Young Voices Advocate and law clerk based out of Washington, DC.

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