Douglas Hallward-Driemeier
Douglas Hallward-Driemeier (Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.)

Doctors have asked the entire U.S. Court of Appeals for the Eleventh Circuit to consider their challenge to a Florida law that limits physicians’ ability to talk to their patients about firearms.

Last month, a panel of the court voted 2-1 to uphold the 2011 law, which forbids health care providers from asking about gun ownership by a patient’s family unless the health care provider believes that the information is “relevant to the patient’s medical care or safety, or the safety of others.” The law also says providers may not “discriminate” against patients on the basis of gun ownership.

Violations of the law subject the practitioner to possible discipline, including loss of a medical license.

Doctors’ groups and individual physicians, including the Florida chapter of the American Academy of Pediatrics, had sued state officials and convinced a federal district court judge to enjoin the law as a violation of their First Amendment rights. But on July 25, Eleventh Circuit Judge Gerald Tjoflat, joined by visiting U.S. District Judge L. Scott Coogler of Alabama, tossed that injunction. Tjoflat called the law a legitimate regulation of professionals.

Judge Charles Wilson dissented, calling the law a “gag order.”

Friday’s en banc petition by the doctors argues that the Eleventh Circuit decision conflicts with U.S. Supreme Court precedent by holding that professional speech is not protected by the First Amendment. “The decision also presents a question of exceptional importance warranting en banc review by creating a new category of unprotected speech and by risking the health and safety of Florida residents,” argue the doctors’ lawyers, who include Ropes & Gray partner Douglas Hallward-Driemeier, an experienced U.S. Supreme Court advocate.

The en banc petition says that under Tjoflat’s analysis, “the state equally could prohibit doctors from discussing with patients the health risks of smoking or eating too much red meat, no matter what the purpose of the legislation. Likewise, legislators could control lawyers’ advice to their clients because, the majority held, individualized professional advice constitutes ‘professional conduct’ the state can regulate as part of the practice of law.”