Posted: 23 May 2016

Date Written: May 18, 2016

Abstract

Empirical evidence shows that a gun in the home increases the risk of death, especially from suicide. In response, several medical organizations, including the American Medical Association and the American Academy of Pediatrics, recommend that physicians discuss gun safety with their patients, or for children, their patients’ parents. In 2011 Florida enacted the Firearm Owners’ Privacy Act (FOPA), which aimed to limit what a physician can discuss with patients about owning firearms. After FOPA’s enactment, several physicians and physician organizations sued, claiming the law violated the First Amendment. In three separate decisions (each of which was later withdrawn), a three-judge panel of the U.S. Court of Appeals for the 11th voted two to one to uphold FOPA. Each decision used different reasoning regarding the application of the First Amendment to physicians’ speech. The case is now before the full 11th Circuit. This Perspective argues that the reasoning of the panel decisions could undermine physicians’ ability to counsel their patients about firearm-related risks. More broadly, the panel’s reasoning could encourage state legislatures to pass other laws that limit physician speech and interfere with the physician-patient relationship. By applying intermediate scrutiny to the plaintiffs' First Amendment claims with a rigor and respect for medical expertise that were lacking in the panel’s decisions, the full court can safeguard physicians’ ability to speak truthfully to patients, without compromising the state’s ability to regulate the practice of medicine.