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Straight Talk on Guns and the Public’s Health: Florida’s Firearm Owners Privacy Act

posted on Wed, Oct 21 2015 3:06 pm by Matthew Saria and James G. Hodge Jr.

For years, doctors and other health care workers (HCWs) have recognized the value of having discussions with their patients on the risks associated with guns in the home and workplace. The American Academy of Pediatrics “recommends that pediatricians provide firearm safety counseling to patients and their parents.” The American Medical Association encourages doctors to ask and educate patients about firearms and “opposes laws that restrict physicians from discussing firearm safety with their patients.” The American Academy of Family Physicians, American Bar Association, and others have called for “policies to . . . protect physicians' free speech rights to discuss gun ownership with patients.”

In Florida, however, the abilities of HCWs to counsel patients on gun safety have been restricted in favor of individual privacy interests. On July 28, 2015 the 11th Circuit Court of Appeals ruled in Wollschlaeger v. Governor of Floridathat Florida’s 2011 Firearm Owners Privacy Act (FOPA) is constitutional. FOPA inhibits licensed HCWs from raising, recording and discussing gun-related safety and health risks with patients. As noted by the court, the Act was passed based on anecdotal accounts of doctors allegedly discriminating against patients for failing to answer gun-related questions or refusing to follow recommendations on gun safety.

FOPA seeks to shield patients’ gun-related interests in four key ways:

  • Inquiry - HCWs “should refrain” from asking whether patients (or their families) own firearms unless they have a good faith belief that such information is “relevant” to the patient’s or others’ health and safety;
  • Record-keeping - HCWs may not “intentionally enter” firearm ownership data into a patient's medical records if they know the data are “not relevant to the patient’s medical care or safety, or the safety of others;”
  • Discrimination - HCWs “may not discriminate” against patients on the basis of firearm ownership; and
  • Harassment - HCWs must avoid “unnecessarily harassing” patients about gun ownership.

The Florida chapters of the American Academy of Pediatrics, the Academy of Family Physicians, and the American College of Physicians, and a number of doctors challenged the act claiming (1) its provisions constituted overbroad content-based infringements on free speech; and (2) its arbitrary language violates due process. As to the latter challenge, the court found that under the “plain meaning” of FOPA, its provisions were clear enough to pass muster under principles of substantive due process.

Regarding free speech concerns, the 11th Circuit court of appeals previously approved FOPA in an initial opinion. In this first opinion over a year ago, the court held that the Act merely regulated the professional conduct of HCWs with only incidental effects on free speech. When this decision was appealed, the court altered its approach, finding that FOPA’s provisions did regulate protected speech and were thus subject to First Amendment scrutiny.

In most cases involving content-based restrictions of speech, such measures are deemed unconstitutional under strict scrutiny. In Wollschlaeger II, however, the 11th Circuit court of appeals viewed FOPA’s provisions more akin to content-based restrictions in commercial speech settings. Under a lesser standard of review, it approved Florida’s ability to restrict gun-related messaging and other activities via FOPA.

Although subject to further appeal, public health officials are wary of the impact of this case on HCWs in Florida and in states with similar laws. According to Dr. Mobeen Rathore, president of the Florida chapter of the American Academy of Pediatrics, the court’s decision will “restrict physicians from asking important questions about health and safety that are vital to providing the best medical care to patients.” To the extent that statutory laws and case decisions restricting HCWs from disseminating accurate, publicly-available, and empirically-proven data about the health and safety risks of firearms to their patients, the health of patients and their families may be negatively affected for years to come.

This post was prepared by Matthew Saria, student researcher, Network for Public Health Law – Western Region Office, and James G. Hodge Jr., J.D. LL.M., Director, Network for Public Health Law – Western Region at the Sandra Day O’Connor College of Law, Arizona State University.  

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.

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