Before we go further, could I ask Phil to clarify matters – is he arguing in
favor of disciplinary proceedings against doctors who ask patients about guns
(proceedings that would be carried on through governmental licensing boards),
or simply arguing in favor of actions by purely private organizations?
His praise of applying Gentile (which is a substantively quite limited
decision, for reasons I’ll be happy to get into once I get Phil’s position
clarified) seems to suggest that he would indeed call for coercive action by
governmental organizations, such as medical licensing boards. An earlier post,
though, suggested the contrary. Just so we don’t talk past each other, could I
have a clear understanding of what’s proposed?
Eugene
From: Phil Lee [mailto:[email protected]]
Sent: Sunday, January 20, 2013 9:26 AM
To: Volokh, Eugene; Firearmsregprof
Subject: Re: doctor "boundaries"
And yet this appeal case Eugene cites rejected the Constitutional right ("We
also reject appellant's constitutional challenges as lacking merit under either
the federal or Nevada constitutions.") that Eugene has advanced.
Ethical rules govern ethical men not from fear of penalty, but a man's sense of
honor and wish to do right. Of course professional societies may have
extralegal procedures to admonish misbehaving members or to eject them. And if
such a member appeals to the courts, that part of government may be engaged.
But Gentile v. State Bar of Nevada gives no support that a lawyer may violate
ethical constraints under the guise of "free speech" protection.
Doctors who go outside of medicine might be vulnerable to a malpractice suit by
the patient in addition to the action by a professional society so patients who
receive advice on guns should make sure to get this advice in writing and on
the record.
Phil
________________________________
From: "Volokh, Eugene" <[email protected]<mailto:[email protected]>>
To: Firearmsregprof
<[email protected]<mailto:[email protected]>>
Sent: Sunday, January 20, 2013 11:34 AM
Subject: Re: doctor "boundaries"
I am at a loss to grasp the last sentence, but let me turn to
the substance. If the proposal is simply “ethical restrictions” in the sense
of “good people should condemn people who do this-and-such,” then I have little
to say about it. But if the proposal is “ethical restrictions” in the sense of
rules of professional conduct that could lead to the loss of a license, to
fines, and so on – as was the case with the Florida law, and as at least the
C.D. Tavares posts on this thread suggest – then the First Amendment most
certainly does apply to such restrictions. It is, after all, governmental
bodies that would enforce these rules (just as they enforce “ethical
restrictions on speech” imposed by lawyers, see, e.g., Gentile v. State Bar of
Nevada).
Eugene
From:
[email protected]<mailto:[email protected]>
[mailto:[email protected]] On Behalf Of Phil Lee
Sent: Saturday, January 19, 2013 9:32 PM
To: Firearmsregprof
Subject: Re: doctor "boundaries"
This discussion has nearly run its course.
First Amendment rights apply only regarding action by government and not to
ethical restrictions on doctors (since lawyers are also bound by ethical
restrictions on speech, I wonder why Eugene doesn't grasp the point); I haven't
proposed government limits on speech and have made that so abundantly clear
that I must declaim any responsibility for Eugene's missing the point.
Eugene clearly feel the need to transform the issues into something different
from the ones I raise; the child he is defending is so ugly and the defense so
vigorous that I suspect he might have been there when it was conceived and
feels a parent's responsibility.
Phil
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