I don't know of any cases that would suggest that the
government could ban doctors from even asking patients about guns, so I don't
think there is a plausible case for the permissibility of such restrictions --
and I've read lots of First Amendment cases over the years, since this is my
core area of writing and teaching. But I think the thread has likely run its
course.
Eugene
From: James Heath [mailto:[email protected]]
Sent: Tuesday, January 22, 2013 10:26 AM
To: Volokh, Eugene
Cc: [email protected]
Subject: Re: California doctors' boundaries
I don't have a position about the constitutionality of this kind of speech
restriction on doctors, so am not arguing a conclusion. I don't know enough to
have a conclusion. Eugene's qualified response makes me believe the question is
not slam-dunk already answered, so probably even he can make arguments for and
against its constitutionality. The arguments against it are obvious so not as
interesting. It seems plausible that such restrictions might be permissible
because:
* Doctor's licenses are conditional on complying with standards set by the
legislature (or by a body designated/delegated by the legislature).
* There seem to be few areas where the courts have constrained the
legislature's ability to set such standards or make definitions. Abortion is
the glaring example, in which the patient's (not the doctor's) right is
involved.
* I'm guessing that the state can license what Eugene and I think is junk
science, and can refuse to license good science. As far as I know, there's no
constitutional requirement for the legislature *not* to license e.g. phrenology
because it doesn't meet somebody's standards of "science."
* Some body must have the authority to define the limits of "medicine" and
declare what is outside the bounds of the state medical license. That would
seem to be the legislature within the constitutional limits above.
* It seems doctor's speech for the purpose of diagnosing patients could be
considered treatment and liable to regulation, hence the homosexual-treatment
example. To undo that would require a court substituting its judgment for the
legislature's, which would fall under what standard of review?
* To strike down a gun-question ban, the court would either have to second
guess the legislature by declaring that guns do equal medicine, or alternately
decide that the doctors' right to ideological speech falsely posing as medicine
outweighs the legislature's interest in regulating medicine.
On Mon, Jan 21, 2013 at 9:47 PM, Volokh, Eugene
<[email protected]<mailto:[email protected]>> wrote:
Well, the question was asked "in First Am[endment] terms." (To
quote the earlier post to which I was responding, "So the state saw a problem
with doctors imposing ideological values in the
name of medicine, and limited doctor's speech to prevent that. The AMA was on
the other side of the fence in that argument. But how is it different in First
Am terms?") If the argument isn't for a government policy, that's fine, but it
sounded to me like it was an argument for a government policy.
As to a doctor's trying to sell you tires, I would think that
would be protected commercial advertising under the Court's First Amendment
precedents - and that's even though commercial advertising is generally less
protected than other speech. So again I'm not sure how the tire promotion
analogy is any more of a support for a restriction on doctors' questions about
guns than the restriction on sexual-orientation-change therapy of minors would
be.
Eugene
James Heath writes:
Eugene wrote:
"I'm not sure how that supports the constitutionality of a ban on simply asking
questions -- questions that might well lead to perfectly reasonable advice,
though they might also lead to unsound advice -- of adult patients."
First, I am not arguing for a government policy on the subject. I do think that
doctors are interjecting politics into their medicine so do not sympathize with
their complaints that politics are being interjected into medicine. I think
they are abusing their position to impose a policy preference that has the
slimmest nexus to their trade. Global warming will affect water supply but I
don't want to hear a lecture about it from the guy unplugging my toilet. That's
not his job.
>From the above, it sounds like the constitutionality of defining doctors'
>speech as "treatment" and restricting it is unresolved or vaguely contoured.
>Does the constitutionality depend on the scientific merits? And if so, as
>judged by the legislature or by the courts?
If a doctor asks what brand tires you have on your car maybe that's free
speech. But if it turns out Pirelli is paying doctors to ask the question as
part of a "push-polll" advertising campaign, most people might think a speech
restriction would be in order.
Who would be the arbiter of whether car tires are a legitimate "health issue"
and protected speech?
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