Florida sued over law saying doctors can't ask about guns

Emily Peterson | Prior Restraints | Feature | June 7, 2011

Three Florida doctors and three physician trade groups sued the governor and other state officials in federal court on Monday in an effort to overturn, on First Amendment grounds, the state’s new law restricting doctors' discussions about gun ownership with patients.

The law, signed by Florida Gov. Rick Scott last week, restricts health care practitioners from asking patients questions about gun safety or recording information from those conversations in patients’ medical records. It also prohibits health care practitioners from “unnecessarily harassing a patient about firearm ownership.” There is an exception in the law if the doctor or hospital “in good faith believes that this information is relevant to the patient’s medical care or safety, or the safety or others.”

According to news reports, the bill was sparked by media reports of a doctor who told a mother to find a new doctor when she refused to answer his questions about guns in her home. The complaint says that the doctors involved in the suit often ask patients preventive health questions aimed at uncovering specific risk factors to children in the home.

The suit was filed in the Southern District of Florida in Miami with the assistance of The Brady Center to Prevent Gun Violence. The complaint alleges that the new law places impermissible limits on the doctors' ability to communicate with patients about firearms and is so vague that it chills doctors’ discussions of gun safety “even in situations arguably permitted by the [new] law." The complaint also asserts that the new law's restrictions deprive doctors and patients of their right to receive information about preventative care.

“By severely restricting such speech and the ability of physicians to practice such preventative medicine, the Florida statute could result in grievous harm to children, adolescents, adults and the elderly,” the complaint says. “The First Amendment does not permit such a gross and content-based intrusion on speech, and accordingly, the Court should declare the Physician Gag Law unconstitutional and enjoin its enforcement.”

According to the complaint, sanctions under the law would subject health care practitioners and facilities to disciplinary proceedings and harsh penalties, such as revocation of a doctor’s medical license and the imposition of administrative fines up to $10,000 per count.

The complaint says the law has an “immediate restrictive effect on Plaintiffs’ exercise of their constitutional right to speak freely to their patients, in the exercise of their best medical judgment, regarding safe gun ownership.” Even though there is an exception in the law for when the information is “relevant to the patient’ medical care or safety,” the harshness of the sanctions and the vagueness of the exception will keep doctors from discussing guns, the complaint asserts.

The First Amendment implications of the law are broad, said Jonathan Lowy, director of the Brady Center's Legal Action Project. If the law remains in place, "it could stand as an example of how a powerful industry can simply silence those who are communicating accurate information about the deadly risks of their products," Lowy said. "That's what happened in Florida. You can imagine other industries that promote products that kill children and others, if they can silence people from telling the truth about their products, the only information people will have about them is what the industry's advertisements say."