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First versus Second Amendment

Free Speech Issue: In order to strengthen the right of one constitutional guarantee, should laws be passed that limit the right of free speech? When the framers of the constitution created the bill of rights, they also created the potential for these liberties to, at times, contradict one another. For instance, the right to a fair and speedy trial can often times interfere with the right of the press to print stories which may have the potential of biasing potential jurors. More recently, the Second Amendment right to bear arms has been set at odds with the right of free speech. In Wollschlaeger v. Scott, the National Rifle Associate sought to enforce the newly created Florida Firearm Owners Privacy Act (FOPA) which forbade physicians from asking patients if they owned firearms. Understandably, the NRA, wishes to do all that it can to strengthen the second amendment. Those who backed the law stated that some physicians who were not sympathetic to gun rights refused to treat their patients who were. However, in their zeal to respond to this situation, the Florida legislature created a conflict between the free speech rights of physicians and their patients. Normally, when a conflict arises between laws and liberties, the courts rely upon balancing tests. Basically, a balancing tests instruct judges to consider the competing rights and interests of individuals and society and to give preference to litigants whose facts or interests are "weightier." Facts, rules and potential results must all be considered to reach a decision. For more information, Patrick McFadden's Boston Law Review article on the Balancing Test provides a well written overview. Judge Cooke's Ruling As reported by the Palm Beach Post, last Wednesday, U.S. District Judge Marcia G. Cooke blocked the law. In her ruling she said the law - approved by the Republican-led Legislature and signed by Gov. Rick Scott did not affect gun rights. Instead, she found that it did potentially interfere with free speech and the constitutional rights of doctors to inform patients.

Laws on professional speech or occupational conduct, however, are generally directed at regulating the access or practice of a profession, not at burdening or censoring private, constitutionally protected speech on a particular subject matter.

While Judge Cooke alludes to free speech issues, her decision was not based upon the first amendment. Instead, she issued her injunction based upon the fact that the NRA had not adequately proved its contention that Governor Rick Scott would inadequately defend the law against second amendment challenges--a dubious claim given that Scott both supported and signed the bill into law. For now, supporters of the First Amendment and the American Academy of Pediatrics have cause to rejoice. However, there are many contentious issues related to the right to bear arms and this foray by the NRA against free speech may be the first of many future attempts.