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speechandprivacy.com http://www.speechandprivacy.com/2011/09/when-rights-collide-first-versus-second.html

First versus Second Amendment

Free Speech Issue: In order to strengthen the right of oneconstitutional guarantee, should laws be passed that limit the right of freespeech?

When the framers of the constitution created the bill of rights, they alsocreated the potential for these liberties to, at times, contradict oneanother. For instance, the right to a fair and speedy trial can often timesinterfere with the right of the press to print stories which may have thepotential of biasing potential jurors. More recently, the Second

Amendment right to bear arms has been set at odds with the right of freespeech. In Wollschlaeger v. Scott, the National Rifle Associate sought toenforce 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 whobacked 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 aconflict 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, abalancing tests instruct judges to consider the competing rights and interests of individuals and society andto give preference to litigants whose facts or interests are "weightier." Facts, rules and potential results mustall be considered to reach a decision. For more information, Patrick McFadden's Boston Law Reviewarticleon the Balancing Testprovides a well written overview.

Judge Cooke's RulingAs 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 theconstitutional rights of doctors to inform patients.

Laws on professional speech or occupationalconduct, however, are generally directed atregulating 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 theAmerican 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 NRAagainst free speech may be the first of many future attempts.

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