When it is “medical treatment,” apparently. According to a 2-1 decision this past summer by the United States Court of Appeals for the 11th Circuit. Specifically, everything a doctor says to a patient is “treatment,” not speech, and the government has broad authority to prohibit doctors from asking questions on particular topics.
As background, in 2011 the Florida Firearm Owners Privacy Act was passed, which threatens doctors with professional discipline if they ask patients whether they own guns or record the resulting information in a patient’s files when doing so is not “relevant” to a patient’s medical care. “Relevant” is not defined, and no provisions for establishing relevancy are outlined. The constitutionality of this Act was questioned and ultimately upheld by this summer’s Wollschlaeger v. Governor of Florida ruling.
Is the 2011 law necessary in any way? Opponents of Florida’s law, including the Brady Campaign to Prevent Gun Violence, believe the opposite, that asking patients about gun ownership is a legitimate means of promoting public health by giving doctors the opportunity to share firearms-safety tips. As this Times editorial notes, “the First Amendment generally doesn’t let the government outlaw the asking of annoying questions. Instead, people can refuse to answer or decline to associate with those who insist on asking such questions” and asks us to:
Imagine if tobacco companies successfully lobbied for a law that prohibited doctors from asking patients whether they smoke. Some doctors may want to know so they can conduct lung examinations, while others may just want to urge their patients to stop. But everyone should recognize that a law outlawing a simple question infringes on speech.