Saturday, October 12, 2019

First Amendment Fundamentalism and Doctrinal Disarray

Guest Blogger

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

Claudia Haupt

In her provocative new book, The Cult of the Constitution, Mary Anne Franks skillfully weaves together liberal and conservative strands of constitutional fundamentalism, focusing in particular on the First and Second Amendments. To preserve their own power and privilege, “constitutional fundamentalists focus on individual rights of speech and bearing arms while disregarding the equal protection guarantees of the Fourteenth Amendment.” (p. xii) In the process, Franks diagnoses: “As Second Amendment Fundamentalists have done with the right to bear arms, First Amendment fundamentalists have transformed the right to free speech into a superright with no sensitivity to context or to corresponding responsibilities.” (p. 116)

This diagnosis has concrete doctrinal implications. In an example Franks mentions in passing, the story of Second Amendment fundamentalism plays out in a case involving the First Amendment: “Not only does the fundamentalist interpretation of the right to bear arms increasingly undermine the right to free speech—Second Amendment fundamentalists have attempted to prevent physicians from asking patients questions relating to firearms,” (p. 44) and “Second Amendment fundamentalism has served as a justification for varied attempts to literally stifle speech” including “preventing physicians from asking about guns in the home.”  (p. 102) I want to spend a little more time on this case, Wollschlaeger v. Florida (popularly also known as Docs v. Glocks), to highlight the doctrinal implications of what Franks calls the fundamentalist approach to the First Amendment. Professional speech usefully illustrates aspects of this phenomenon, particularly the reflexive incorporation of several doctrinal features into all areas of speech, regardless of context and without much deliberation as to its theoretical soundness.

Florida’s Firearms Owners’ Protection Act (FOPA) was enacted in 2011 ostensibly to address anecdotal evidence of patients (or minor patients’ parents) taking offense at physicians’ customary questions about gun ownership. In fact, the relevant professional groups, including the American Medical Association, recommend inquiring about gun ownership as a matter of course. Nonetheless, the opinion recounts as one of six instances motivating the Florida legislature to enact FOPA that an NRA representative not only reported a physician’s refusal to treat a child if the parent didn’t answer the gun question but also “testified at a subcommittee hearing that ‘[q]uestioning parents about gun ownership to satisfy a political agenda . . . needs to stop.’” But the Eleventh Circuit struck down FOPA because it impermissibly imposed speaker-focused and content-based restrictions by limiting doctors’ speech about gun ownership.
It might appear that in this decision, the First Amendment prevented a fundamentalist interpretation of the Second Amendment. But a closer look reveals that the court’s First Amendment interpretation is itself based on what Franks may identify as a fundamentalist understanding.

The court struck down the Florida law because it violated the First Amendment’s command of content neutrality. Since the Supreme Court’s decision in Reed v. Town of Gilbert, an aggressively expansive understanding of content neutrality, in turn, has become one of the pillars of the modern deregulatory interpretation of the First Amendment. I’ve called this purported extension of content neutrality to all areas of speech “the content-neutrality trap.” But in the context of professional speech, content neutrality makes little sense. Indeed, the value of professional speech to the client or patient lies precisely in its content. Moreover, a professional’s speech within the professional-client or doctor-patient relationship for the purpose of giving professional advice is constrained by the imposition of malpractice liability for bad advice and by fiduciary duties. Approaching professional speech from the premise of content neutrality, however, misses these aspects. In other words, extending the requirement of content neutrality to professional speech bears the hallmarks of First Amendment fundamentalism Franks identifies: “no sensitivity to context or to corresponding responsibilities.” Thus, reaching the correct result on shaky reasoning, Docs v. Glocks offers a vivid illustration of acontextual and reflexive contemporary First Amendment jurisprudence.

On the surface, professional speech is merely in doctrinal disarray. The federal appellate courts are divided on the First Amendment implications of speech that occurs within the professional-client relationship, and the Supreme Court’s recent decision in NIFLA v. Becerra offers only limited guidance. Yet, as I’ve explained elsewhere, “[m]uch of professional speech doctrine in the courts has . . . developed around conversion therapy laws and legislation concerning reproductive rights. Because these issues remain contested, the development of professional speech doctrine in the courts has been uneven and still lacks a coherent theoretical basis.” So take a step back from Docs v. Glocks and the picture that emerges supports the finding that those who have been affected by First Amendment fundamentalism in this area are “those whose rights have been excluded, ignored, and subordinated.” (p. 204)

Claudia E. Haupt is an Associate Professor of Law and Political Science at Northeastern University. You can reach her by e-mail at c.haupt at

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