Ethics Hero: 11th U.S. Circuit Court of Appeals


It’s a small victory to be sure, but those of us who want to protect free speech must take our hope from whatever sources we can.

In the case of Dana’s Railroad Supply v. Florida, the sharp-eyed Atlanta-based 11th U.S. Circuit Court of Appeals  struck down a Florida law barring merchants from imposing a surcharge on customers for credit card use.

The law allowed merchants to give discounts for cash, but would not permit surcharges for using credit cards. “Ah HA!” realized the court, This violates the First Amendment, because it penalizes businesses that want to call price differences based on credit card use a surcharge rather than a cash discount, and they are the exact same thing. “You can penalize credit card users,” the dumb law said, “but you have to call it what we tell you to call it.”

“Tautologically speaking,” the opinion said, “surcharges and discounts are nothing more than two sides of the same coin; a surcharge is simply a ‘negative’ discount, and a discount is a ‘negative’ surcharge. As a result, a merchant who offers the same product at two prices—a lower price for customers paying cash and a higher price for those using credit cards—is allowed to offer a discount for cash while a simple slip of the tongue calling the same price difference a surcharge runs the risk of being fined and imprisoned.”

“The First Amendment prevents staking citizens’ liberty on such distinctions in search of a difference.”

Love it.


Pointer and Facts: ABA Journal.

When Law Co-Opts Ethics: Florida’s Unconstitutional Pro-Gun Doctor Gag Law Upheld


“See doc? That’s what you get for shooting your mouth off! Get it?”

A federal appeals court this week upheld an NRA-crafted Florida law making it illegal for doctors to ask questions and record information about a patient’s gun ownership. Medical groups had challenged the law, arguing that it infringed on doctors’ First Amendment rights.

Which it does. The law is an outrageous incursion on free speech in order to protect gun owners from unwelcome anti-gun lobbying by their physicians.

Among other restrictions, the law says doctors must refrain from asking about gun ownership by patients or family members unless the they believe in “good faith” that the information is relevant to medical care or safety. It also prevent doctors from discriminating against patients or “harassing” them because of owning firearms, which presumably means that it is illegal for a doctor to tell a patient, “You’re too clumsy to own a gun, and if you blow your damn face off, don’t come crying to me.”

“The purpose of the act, as we read it, is not to protect patient privacy by shielding patients from any and all discussion about firearms with their physicians; the act merely requires physicians to refrain from broaching a concededly sensitive topic when they lack any good-faith belief that such information is relevant to the medical care or safety of their patients or others,” said the 2-1 majority opinion, written by Judge Gerald Tjoflat and joined by Judge L. Scott Coogler.

Dissenting Judge Charles Wilson argued that the law violates the First Amendment rights of physicians:

“Simply put, the act is a gag order that prevents doctors from even asking the first question in a conversation about firearms. The act prohibits or significantly chills doctors from expressing their views and providing information to patients about one topic and one topic only, firearms.”

I don’t see how anyone can dispute that analysis. I especially don’t see how the other two judges dispute it.

Doctors shouldn’t use their position of influence to try to impose their political, social and life-style views on patients. If the American Medical Association wants to declare that to be an unethical abuse of a doctor’s status and a patient’s trust, I wouldn’t complain. The law, however, has no more business telling doctors that they can’t advise their patients that owning guns may be bad for their health or their neighbor’s health than it has making it illegal for doctors to tell patients that Donald Trump is just what this country needs in the White House. What’s next, telling dentists that they can’t tell you about their brilliant kids while they’re poking around your mouth?

The state doesn’t have to get involved in what patients and doctors talk about, shouldn’t, and mustn’t. This is a job for ethics, not law. If a doctor won’t stop telling you that the Second Amendment should be repealed, the remedy is easy: tell him to shut up, or you’ll find a new doctor.

Or just shoot him.


Pointer: Legal Ethics Forum

The Disgrace of the Health Care Reform Debacle, Brought Into Focus

Nice image. Unfortunately, the open book is "Catch 22"

“Some prominent academics have argued that the individual mandate is a clearly constitutional exercise of the federal government’s taxing power. Some of these same academics have argued that opponents of the individual mandate’s constitutionality are well outside the legal mainstream. Yet as of today, there has not been a single federal court — indeed, perhaps not even a single federal judge — who has accepted the taxing power argument. Not a one. And yet a half-dozen federal judges have found the mandate to be unconstitutional. So which arguments are outside of the mainstream again?”

Thus did Jonathan Adler, Case Western law professor and Director of the Center for Business Law and Regulation, chide the arrogant supporters of the health care reform act who dismissed as wackos and radicals critics who were alarmed at its intrusions onto personal freedom. The 11th Circuit Court of Appeals’ rejection of the individual mandate, the provision requiring all adult citizens to buy private health insurance, is the most striking proof yet of the arrogant, unethical, dishonest, corrupt and incompetent manner in which the Democratic majority passed its version of health care reform. Continue reading