First Amendment Fundamentalism As Well As Doctrinal Disarray

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

Claudia Haupt

In her provocative novel book, The Cult of the Constitution, Mary Anne Franks skillfully weaves together liberal together with conservative strands of constitutional fundamentalism, focusing inwards detail on the First together with Second Amendments. To save their ain powerfulness together with privilege, “constitutional fundamentalists focus on private rights of phonation communication together with bearing arms piece disregarding the equal protection guarantees of the Fourteenth Amendment.” (p. xii) In the process, Franks diagnoses: “As Second Amendment Fundamentalists receive got done amongst the right to acquit arms, First Amendment fundamentalists receive got transformed the right to costless phonation communication into a superright amongst no sensitivity to context or to corresponding responsibilities.” (p. 116)

This diagnosis has concrete doctrinal implications. In an illustration Franks mentions inwards passing, the storey of Second Amendment fundamentalism plays out inwards a illustration involving the First Amendment: “Not exclusively does the fundamentalist interpretation of the right to acquit arms increasingly undermine the right to costless speech—Second Amendment fundamentalists receive got attempted to forestall physicians from bespeak patients questions relating to firearms,” (p. 44) together with “Second Amendment fundamentalism has served every bit a justification for varied attempts to literally stifle speech” including “preventing physicians from bespeak nigh guns inwards the home.”  (p. 102) I desire to pass a footling to a greater extent than fourth dimension on this case, Wollschlaeger v. Florida (popularly every bit good known every bit Docs v. Glocks), to highlight the doctrinal implications of what Franks calls the fundamentalist approach to the First Amendment. Professional phonation communication usefully illustrates aspects of this phenomenon, especially the reflexive incorporation of several doctrinal features into all areas of speech, regardless of context together with without much deliberation every bit to its theoretical soundness.

Florida’s Firearms Owners’ Protection Act (FOPA) was enacted inwards 2011 ostensibly to address anecdotal bear witness of patients (or modest patients’ parents) taking crime at physicians’ customary questions nigh gun ownership. In fact, the relevant professional person groups, including the American Medical Association, recommend inquiring nigh gun ownership every bit a affair of course. Nonetheless, the thought recounts every bit ane of vi instances motivating the Florida legislature to enact FOPA that an NRA representative non exclusively reported a physician’s refusal to care for a nestling if the parent didn’t answer the gun enquiry but every bit good “testified at a subcommittee hearing that ‘[q]uestioning parents nigh gun ownership to satisfy a political agenda . . . needs to stop.’” But the Eleventh Circuit struck downwardly FOPA because it impermissibly imposed speaker-focused together with content-based restrictions past times limiting doctors’ phonation communication nigh gun ownership.

It mightiness look that inwards this decision, the First Amendment prevented a fundamentalist interpretation of the Second Amendment. But a closer expect reveals that the court’s First Amendment interpretation is itself based on what Franks may lay every bit a fundamentalist understanding.

The courtroom struck downwardly the Florida constabulary because it violated the First Amendment’s ascendance of content neutrality. Since the Supreme Court’s determination inwards Reed v. Town of Gilbert, an aggressively expansive agreement of content neutrality, inwards turn, has teach ane 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 phonation communication “the content-neutrality trap.” But inwards the context of professional person speech, content neutrality makes footling sense. Indeed, the value of professional person phonation communication to the customer or patient lies exactly inwards its content. Moreover, a professional’s phonation communication inside the professional-client or doctor-patient human relationship for the usage of giving professional person advice is constrained past times the imposition of malpractice liability for bad advice together with past times fiduciary duties. Approaching professional person phonation communication from the premise of content neutrality, however, misses these aspects. In other words, extending the requirement of content neutrality to professional person phonation communication bears the hallmarks of First Amendment fundamentalism Franks identifies: “no sensitivity to context or to corresponding responsibilities.” Thus, reaching the right effect on shaky reasoning, Docs v. Glocks offers a brilliant illustration of acontextual together with reflexive contemporary First Amendment jurisprudence.

On the surface, professional person phonation communication is simply inwards doctrinal disarray. The federal appellate courts are divided on the First Amendment implications of phonation communication that occurs inside the professional-client relationship, together with the Supreme Court’s recent determination inwards NIFLA v. Becerra offers only express guidance. Yet, every bit I’ve explained elsewhere, “[m]uch of professional person phonation communication doctrine inwards the courts has . . . developed unopen to conversion therapy laws together with legislation concerning reproductive rights. Because these issues stay contested, the evolution of professional person phonation communication doctrine inwards the courts has been uneven together with soundless lacks a coherent theoretical basis.” So accept a measurement dorsum from Docs v. Glocks together with the motion-picture exhibit that emerges supports the finding that those who receive got been affected past times First Amendment fundamentalism inwards this expanse are “those whose rights receive got been excluded, ignored, together with subordinated.” (p. 204)

Claudia E. Haupt is an Associate Professor of Law together with Political Science at Northeastern University. You tin attain her past times electronic mail at c.haupt at northeastern.edu