Jeannie Suk Gersen
The New Yorker
Originally posted August 23, 2017
Here is an excerpt:
The class of professionals best equipped to answer these questions has largely abstained from speaking publicly about the President’s mental health. The principle known as the “Goldwater rule” prohibits psychiatrists from giving professional opinions about public figures without personally conducting an examination, as Jane Mayer wrote in this magazine in May. After losing the 1964 Presidential election, Senator Barry Goldwater successfully sued Fact magazine for defamation after it published a special issue in which psychiatrists declared him “severely paranoid” and “unfit” for the Presidency. For a public figure to prevail in a defamation suit, he must demonstrate that the defendant acted with “actual malice”; a key piece of evidence in the Goldwater case was Fact’s disregard of a letter from the American Psychiatric Association warning that any survey of psychiatrists who hadn’t clinically examined Goldwater was invalid.
The Supreme Court denied Fact’s cert petition, which hoped to vindicate First Amendment rights to free speech and a free press. But Justice Hugo Black, joined by William O. Douglas, dissented, writing, “The public has an unqualified right to have the character and fitness of anyone who aspires to the Presidency held up for the closest scrutiny. Extravagant, reckless statements and even claims which may not be true seem to me an inevitable and perhaps essential part of the process by which the voting public informs itself of the qualities of a man who would be President.”
These statements, of course, resonate today. President Trump has unsuccessfully pursued many defamation lawsuits over the years, leading him to vow during the 2016 campaign to “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” (One of his most recent suits, dismissed in 2016, concerned a Univision executive’s social-media posting of side-by-side photos of Trump and Dylann Roof, the white supremacist who murdered nine black churchgoers in Charleston, South Carolina, in 2015; Trump alleged that the posting falsely accused him of inciting similar acts.)
The article is here.
Showing posts with label First Amendment. Show all posts
Showing posts with label First Amendment. Show all posts
Sunday, August 27, 2017
Sunday, June 4, 2017
Physicians, Firearms, and Free Speech
Wendy E. Parmet, Jason A. Smith, and Matthew Miller
N Engl J Med 2017; 376:1901-1903
May 18, 2017
Here is an excerpt:
The majority’s well-reasoned decision, in fact, does just that. By relying on heightened rather than strict scrutiny, the majority affirmed that laws regulating physician speech must be designed to enhance rather than harm patient safety. The majority took this mandate seriously and required the state to show some meaningful evidence that the regulation was apt to serve the state’s interest in protecting patients.
The state could not do so for two reasons. First, the decision to keep a gun in the home substantially increases the risk of death for all household members, especially the risk of death by suicide, and particularly so when guns are stored loaded and unlocked, as they are in millions of homes where children live. Second, the majority of U.S. adults who live in homes with guns are unaware of the heightened risk posed by bringing guns into a home. Indeed, by providing accurate information about the risks created by easy access to firearms, as well as ways to modify that risk (e.g., by storing guns unloaded and locked up, separate from ammunition), a physician’s counseling can not only enhance a patient’s capacity for self-determination, but also save lives.
Given the right to provide such counsel, professional norms recognize the responsibility to do so. Fulfilling this obligation, however, may not be easy, since the chief impediments to doing so — and to doing so effectively — are not and never have been legal barriers. Indeed, the court’s welcome ruling does not ensure that most clinicians will honor this hard-won victory by exercising their First Amendment rights.
The article is here.
N Engl J Med 2017; 376:1901-1903
May 18, 2017
Here is an excerpt:
The majority’s well-reasoned decision, in fact, does just that. By relying on heightened rather than strict scrutiny, the majority affirmed that laws regulating physician speech must be designed to enhance rather than harm patient safety. The majority took this mandate seriously and required the state to show some meaningful evidence that the regulation was apt to serve the state’s interest in protecting patients.
The state could not do so for two reasons. First, the decision to keep a gun in the home substantially increases the risk of death for all household members, especially the risk of death by suicide, and particularly so when guns are stored loaded and unlocked, as they are in millions of homes where children live. Second, the majority of U.S. adults who live in homes with guns are unaware of the heightened risk posed by bringing guns into a home. Indeed, by providing accurate information about the risks created by easy access to firearms, as well as ways to modify that risk (e.g., by storing guns unloaded and locked up, separate from ammunition), a physician’s counseling can not only enhance a patient’s capacity for self-determination, but also save lives.
Given the right to provide such counsel, professional norms recognize the responsibility to do so. Fulfilling this obligation, however, may not be easy, since the chief impediments to doing so — and to doing so effectively — are not and never have been legal barriers. Indeed, the court’s welcome ruling does not ensure that most clinicians will honor this hard-won victory by exercising their First Amendment rights.
The article is here.
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