Eugene Volokh somehow manages to completely miss the salient point. This is why lawyers tend to be intrinsically flawed defenders of freedom; their training predisposes them to miss the forest for the trees:
Monday, a three-judge U.S. Court of Appeals for the 11th Circuit panel handed down a third opinion in Wollschlaeger v. Governor, the Florida “Docs vs. Glocks” case. Florida law limits doctors’ conversations with patients about guns. The first opinion in the case held that the law wasn’t really a speech restriction, because it just regulated the practice of medicine (a deeply unsound view, I think). The second opinion, issued after a petition for rehearing, changed course and held that the law was a speech restriction, but that — as a restriction on professional-client speech — it had to be judged under “intermediate scrutiny,” which it passed.
First of all, since the State regulates doctors and protects them from competition, they can do anything they want with regards to how they go about their business. Second, as the article shows, what is actually being prohibited is doctors being used as a line of attack against gun rights.
It bans doctors “from unnecessarily harassing a patient about firearm ownership during an examination.” This means, according to the panel majority, that a doctor “should not disparage firearm-owning patients, and should not persist in attempting to speak to the patient about firearm ownership when the subject is not relevant [based on the particularized circumstances of the patient’s case, such as the patient’s being suicidal] to medical care or safety.”
And whenever there is a conflict between gun rights and speech rights, gun rights much always come first, because gun rights defend speech rights far more effectively than speech rights defend gun rights.
But that is a philosophical point, not a legal one, which is why even a libertarian lawyer is likely going to miss it. Here is the crux of his error:
Now I think that the supposed imbalance of power between doctor and patient, like the supposed imbalance of power among students, is quite overstated.
That’s completely absurd. This attempt to turn the medical community into a white-coated Stasi should be shot down in any and every way necessary.