It's a Secret

Doctor-patient confidentiality and privilege have a long history. The concept of keeping private the information a doctor may gain from a patient is stated in the Hippocratic Oath that all physicians take and in the fifth of his Laws. It also has a long history in Common Law. However, despite how second nature this concept may be, there is no federal regulation regarding doctor-patient confidentiality or privilege. For the most part, legislation around this principle has been left up to the states. Not surprisingly then, the laws vary quite a bit from state to state. Some states like Mississippi go as far as to include nurses, dentists, and pharmacists under privilege statutes while states like Massachusetts don’t have privilege statutes at all. Illinois has very little formal regulation and only requires disclosure by physicians in the case of suspected child abuse. As a state, Illinois offers no formal protection for patients or doctors in the area of confidentiality and privilege. I thought I would take a look at these statues and see just how airtight they really are.

Interestingly, one of the major issues surrounding these types of laws is their constitutionality. Are these laws effectively infringing on the physician’s right to free speech? There are several ways the Supreme Court may look favorably on these statutes. They would need to be content-neutral, be an action of wrongful conduct or, further an interest “of the highest order”.

In order for a state action to be considered content-neutral, it has to pass the test set down by the Supreme Court in Cohen v. Cowles Media Co. They stated the action is only content neutral if it does not target the press, target the message in the speech, or target speech itself. The first part is most certainly met in these statutes as the parties affected are not considered press. The second part is probably met because the statutes do not specify the type of information doctors cannot reveal, but rather prevent any unsanctioned revelation at all. However, you could certainly argue that the statutes requiring physicians to report STDs or child abuse cases would not pass this part and therefore would not be content neutral. It would be harder to argue for he last part as the confidentiality statutes certainly target the doctor’s speech.

However, there are instances where the Supreme Court has done a bit of hand waving to get around this. Take United States v. O-Brien. Here O’Brien was convicted of burning a draft card in protest of the Vietnam War. The Supreme Court upheld his conviction on the grounds that even though the laws restricted this speech, it served a government interest. It could be argued that doctor-patient confidentiality would serve a considerable government interest; as such a significant amount of tax money is spent every year on delivering effective medical care. I don’t really like this reasoning though, because it seems to me almost anything could constitute serving a government interest. Oh well.

Though not the United States Supreme Court, the Oregon Supreme Court allowed for restriction of speech in the case Anderson v. Fisher Broadcasting Cos. Here, the plaintiff was not awarded damages for the publication of his car accident because the publication of truthful facts was not wrong. This logic has been used quite frequently in many court decisions that state disclosure of medical information without consent is so wrong that the grievance of the error itself justifies action against it. I’m really not sure what to think about this one. Could it get much vaguer? What is the definition of so wrong versus just kind of wrong, and how do we make the distinction? Could then the egregious wrong done to the doctors by prohibiting their speech be so wrong that it in itself would require remedy? I don’t know. It seems the court should do a little better than that.

Lastly, the statue would have to further an interest of the “highest order” In BJF v. Florida Star, a woman sued the Florida Star for publicizing her name as the victim of a sex crime. Florida law prohibited the publication of the names of sex crime victims. The Supreme Court determined the law did not further an interest of the highest order, and therefore did not justify the prohibition of publication of true facts. Again, since the government takes such an expensive interest in the quality of health care in the United States, the success of its execution could be considered an interest of the highest order. However, this highest order necessity could be used against these confidentiality statues as well. Since the Court is unclear as to exactly what constitutes the highest order, the revelation of true facts could be justified assuming information in medical records was true.

Since doctor-patient confidentiality is a rather ancient concept, it is unlikely the courts will strike down these statutes. I’ll be the first one to agree that they certainly promote better healthcare. However, I do wonder whether if one was seriously challenged before the Supreme Court it would have a leg to stand on.

Also used in writing this blog: Frankel, Michael. "DO DOCTORS HAVE A CONSTITUTIONAL RIGHT TO VIOLATE THEIR PATIENTS' PRIVACY?: OHIO'S PHYSICIAN DISCLOSURE TORT AND THE FIRST AMENDMENT." Villanova Law Review 46 (2001): 141-166. LexisNexis Academic. LexisNexis. 26 Apr. 2009 .

By Analogy

One of the newest issues added to the agenda for the Supreme Court is the decision as to whether to bring back a federal law, which prohibited the sale of depictions of animal cruelty. The 3rd U.S. Circuit Court of Appeals ruled the statute unconstitutional in the case United States of America v. Robert J. Stevens. Mr. Stevens was indicted on three counts of selling videotapes depicting organized dog fights and other violent footage involving pit bulls. The 3rd Circuit Court found in favor of Mr. Stevens who claimed that the federal code Title 18 Section 48 was an unconstitutional breach of his freedom of speech. The statute makes it illegal to “create, sell, or possess a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain” with penalties up to five years in prison. The law does however make exceptions for those always well-defined cases where the depiction has serious religious, political, scientific, educational, journalistic, historical, or artistic value. No ambiguity there of course. The statute was originally intended to deter “crush videos” which appeal to a particularly deviant sexual fetish. However, the 3rd Circuit Court of Appeals stated animal cruelty depictions did not fall under any of the previously defined categories of unprotected speech and struck down the statue. Obviously, there are many who would like to see this law upheld and compare depictions of animal cruelty to three classes of speech already determined to be unprotected. By analogy to violent speech, obscenity, and child pornography, animal rights activists hope to make a case to make animal cruelty categorically unprotected speech. Let’s take a look at some of these arguments.

The first argument used the restriction of violent speech. It has long been an assertion that animal cruelty can be a predictor of future acts of violence against humans later in life. In fact, Wright and Hensley developed the graduation hypothesis after their 2003 study. Of 354 serial murderers studied, 21% had a history of animal cruelty earlier in life. However, in Brandenburg v. Ohio, the Supreme Court made it very clear that the government could not restrict speech except in the case where the speech incited immediate unlawful action. Despite this suggested correlation between animal cruelty and future violence against humans, it is doubtful imminence could be proven. There could be merit in arguing the illegality of dog fighting and animal cruelty, and that the watching of these videos could encourage participation in the activities themselves. However, in Ashcroft v. Free Speech Coalition, the court said that "government may not prohibit speech because it increases the chance an unlawful act will be committed "at some indefinite future time,'" because "the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it,". I think it is probably safe to say the violent speech argument isn’t going to be a particularly effective one.

The second argument is meant to rope violence in with obscene speech. Of course we all remember that in order to be considered obscene the average person must find it a) appeals to the prurient interest, b) depicts sexual conduct in a patently offensive way, and c) lacks serious literary, artistic, political, or scientific value. The language of Title 18 section 48 mimics obscenity by qualifying animal cruelty depictions without any serious value as the only ones prohibited. Many also argue that violent speech can be just as obscene as sexual speech, and that violent speech serves to simply arouse viewers without any sort of intellectual stimulation just like sexual obscenity. However, unfortunately for this argument, the Supreme Court decided in Winters v. New York that depictions of crime and other violent actions meant solely for entertainment purposes were just as protected as those meant to inform. No First Amendment exception was made here for depictions of violence, so unless the Supreme Court would like to change this precedent, this seems unlikely to hold much weight either.

Lastly, animal rights activists hope exceptions to freedom of speech for child pornography cases will be similar enough to include animal cruelty. In New York v. Ferber, the Supreme Court decided child pornography was not protected because the creation caused harm to the child. The Court also cited that child pornography was fundamentally associated with child abuse, and therefore should not be protected under the First Amendment. Definitely a better argument here than the last two. Actually, this decision calls into question the first argument used against the constitutionality of the animal cruelty statute. Even though it was so careful in Ashcroft to assert the threat of illegal action had to be imminent, it seems to be contradicting itself here by citing the association with child pornography and child sexual abuse. If the Supreme Court was willing to change its mind once before, why not in this case I suppose? Also, animal rights activists could most certainly make the argument that just as children are harmed in the production of child pornography, animals are harmed in the creation of crush videos or dog fighting videos. It would seem it would then boil down to how similar in rights the Supreme Court considers animals to children. Perhaps not everyone believes the Founding Fathers meant the Constitution to apply to their furry friends. But I digress.
Ultimately, we will have to wait to see which if any of the previous arguments stick when the Supreme Court deliberates over this case. I personally don’t enjoy watching animals harmed in any way, but I also get a little more nervous each time the Supreme Court decides the First Amendment doesn’t protect another category of speech.

Also used :
Reynolds, Michael. " DEPICTIONS OF THE PIG ROAST: RESTRICTING VIOLENT SPEECH WITHOUT BURNING THE HOUSE." Southern California Law Review 82 (Jan. 2009): 341-387. LexisNexis Academic. LexisNexis. 20 Apr. 2009 .

Laying the First Amendment to Rest

In September of 2007, a Michigan couple was arrested in a funeral procession for the display of anti-Bush sentiments on their car in the form of homemade signs. This put them in violation of a Michigan law that makes it a felony to "disturb, disrupt or adversely affect" a funeral within 500 feet of the event. Even though the couple knew the deceased and were actually attending the man’s funeral for the purpose of honoring his memory, they were still arrested. The criminal charges were later dropped at the request of the deceased family. However, even though the charges were dropped, the police action garnered much attention and the ACLU filed a lawsuit on behalf of the couple questioning the constitutionality of the Michigan statute.

Michigan is one of thirty seven states to enact laws regarding funeral protests in the United States, stemming in large part from the Respect for America’s Fallen Heroes Act. The act prohibits protests within 300 feet of any cemetery under the control of the National Cemetery Administration and for sixty minutes before and after any funeral. It also urges states to enact similar laws. Obviously, these laws bring up numerous constitutional questions. Lawsuits have been filed in several states, including Kentucky’s McQueary v Stumbo where a judge struck down parts of the law claiming, that while the regulation was content-neutral and respected privacy interests of families, the law was not specific enough to be consistent with the Constitution. So if courts are already declaring these laws unconstitutional, why are they still enforced in many states? What arguments are used to justify their existence?

The Kentucky court touched on two of the main ones: privacy rights of families and content neutrality. There are also protest limit precedents and fighting words. I will try to touch on all of these in order to make some sense of the murky legal waters in which these lawsuits find themselves. Let’s first deal with the privacy issue.

One of the major court cases considered when discussing the privacy issue is Frisby v. Schultz, which prohibits picketing within a certain distance of private residences, citing a captive audience. The Supreme Court has echoed the sentiments of these funeral protest laws in National Archives and Records Administration v. Favish when it stated “Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.” Clearly, these rulings could be used to justify these laws, however, neither seem to deal with any of the privacy torts. Intrusion could be used to justify these laws because a protest could be seen as a physical intrusion into a person’s private space, but I’m not sure the privacy of a funeral is quite as substantial as the privacy of the private residence as established in Frisby. It is obvious the courts want funerals to fall under privacy rights, but I’m unsure as to the stability of these claims.

Moving on from privacy, we can look at the precedent set for limits to protests, such as the 500 feet required in the Michigan law. Again, we can cite Frisby v. Schultz for this because it stated the fixed zone still allowed for plenty of other alternatives for the speech. Other cases like Boos v. Barry, Madsen v. Women's Health Center, and even a Supreme Court ruling in Hill v. Colorado have upheld various numerical restrictions on protest zones. The Supreme Court in Hill v. Colorado took a decidedly libertarian approach to the issue when it stated that a "bright-line prophylactic rule may be the best way to provide protection, and, at the same time, by offering clear guidance and avoiding subjectivity, to protect speech itself." However, several funeral protest laws have been overturned based on the degree of restriction to speech the specific size of the restricted space imposes. Since the courts can’t even reach a consensus among themselves, it is doubtful these precedents will help us make much sense of the issue either.

Perhaps the most compelling argument toward the constitutionality of these laws is the assertion of content neutrality. In almost every case dealing with these laws, the court has found the restrictions on protests to be content neutral. I’d have to agree. Having read numerous statutes, none apply these restrictions solely to individuals who would show sentiments against the deceased or the deceased family. Most deal with disturbing the peace and fighting words, which are already established exceptions to First Amendment rights. In theory, the statute would apply to both the Westboro Baptist Church and Patriot Guard Riders alike. However, many point out that simply the wording of the laws constitutes viewpoint discrimination because of the word protest. This would certainly imply that the signs are not meant to show respect and loved for the deceased. I also wonder if there isn’t some validity to this claim as well.

After exploring the issue instead of coming to a conclusion, I find myself only more unwilling to pass judgment on the issue. While certainly protecting the family who has lost a loved one is a sentiment I want whole-heartedly to support, I’m not sure I’m willing to do so with the understanding that it is inconsistent with the First Amendment. Therefore, I would suggest the Supreme Court take the first opportunity it gets to review this issue and carefully consider the issues at hand. As the Hill Court stated, I really do believe a carefully crafted bright-line rule is the best way to finally lay this issue to rest. I would hope that once it is all said and done, the opinion embodies the sentiments expressed in this quote by Ronald Collins and David Hudson Jr in the Legal times: “The highest respect we can pay to our fallen war dead is to respect the principles for which they made the supreme sacrifice. We honor them by honoring those principles of freedom — even when a callous few vainly attempt to demean the dignity rightfully due them.”


Also used in researching this post:
McCarthy, Robert F. "The Incompatibility of Free Speech and Funerals: A
Grayned-Based Approach for Funeral Protest Statutes." Ohio State Law
Journal 68 (2007): 1470-1507. LexisNexis Academic. LexisNexis. 6 Apr.
2009 .