Doctors have First Amendment rights too

Free speech is one of our bedrock constitutional rights. The battle over what constitutes lawful free speech is ongoing. But the issue is more complex than I can grasp with legal distinctions separating political speech, commercial speech and noncommercial speech. And, of course, the right of speech does not permit the free expression of obscenity or “fighting words” along with some other exclusions.

There is no right to free speech in a private workplace, where an employee can be fired for speaking his or her mind. While a worker in a private shop may claim that he had a right to call his boss a flippin’ jerk, he would likely find that he suddenly has an abundance of free time to contemplate his prior utterance.

Leaving aside the First Amendment, physicians have always enjoyed free speech in our offices. We ask our patients questions of the most private and intimate nature. And they answer us. We ask such questions because, under appropriate circumstances, we need the information to provide our best medical advice. We ask about specific sexual practices. We ask about prior or current substance abuse. We ask if patients are alcoholics. We ask if patients are suffering from abuse or neglect.

While we may not invariably receive truthful responses from these inquiries, often we do. Patients trust us to respect their confidentiality, which has been embedded into medical culture and practice since the time of Hippocrates:

And whatsoever I shall see or hear in the course of my profession, as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets.

Hippocrates — 2500 years before HIPAA!

His admonition holds true nearly 2500 years later. How’s that for meeting the test of time?

In 2011, the Florida Republican legislature, with the approval of the governor, passed a law that restricted physicians from inquiring of their patients about gun ownership and safety. Physicians found to be in violation risked the loss of their professional licenses or fines. Nearly two weeks ago, an appeals court struck this silly law down. Not only was such a law an obvious encroachment on physicians’ First Amendment rights, but also posed a barrier preventing doctors from doing their jobs. Should a pediatrician, for example, be prevented from asking a parent if firearms in the home are properly secured? This is not a political or partisan issue — it’s a medical and safety issue.

Of course, the appeals court got it right in a case that I regard as a judicial lay-up. But, how did such a ridiculous law get passed in the first place?

Michael Kirsch is a gastroenterologist who blogs at MD Whistleblower.

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