Noma Bar for Reader's Digest
In 2002, a disability forced veterinarian Ronald Hines, who lives in Texas, to give up his practice after more than 30 years. In his retirement, he started a website, 2ndchance.info, to post general articles about pet health and care. Soon he was inundated with e-mails from pet owners all over the world—many without access to a veterinarian or the means to pay one—asking for his guidance. In 2003, he began charging for his service, which he offered by e-mail or phone. By 2011, he was charging a flat fee of $58 and, that year, grossed nearly $2,800.
However, on March 19, 2012, Hines received notification from the Texas State Board of Veterinary Medical Examiners that he was breaking the law. It turned out he was in violation of a statute of the Texas Veterinary Licensing Act that prohibits practicing veterinary medicine without physically examining the animal, which is considered “outside the context of a formal veterinary-client-patient relationship.” The statute explicitly states that the relationship “may not be established solely by telephone or electronic means.” Hines immediately stopped his service.
His formal punishment included a yearlong suspension of his license starting in March 2013, a $500 fine, and retaking the legal portion of the veterinary licensing exam.
In April 2013, Hines filed a lawsuit in federal court against the nine members of the state board, claiming that they had violated his constitutional rights, including his First Amendment right to free speech.
“If a vet gives a speech to the general public or writes a book, everyone agrees it’s protected,” notes Jeff Rowes, a senior attorney at the Institute for Justice in Virginia who represented Hines. “But when he’s speaking to one person, giving individually tailored advice, it’s not?” Though the state has long-established authority to regulate professional conduct (such as requiring a vet to physically examine animals), Hines argued that the advice he’d given was not conduct subject to regulation but instead protected speech.
The state board, in turn, filed a motion to dismiss, claiming that the advice Hines had given was indeed professional conduct and pointing out that “courts have repeatedly held up state restrictions on professional practice against First Amendment challenges.”
Next: Does prohibiting a vet from giving advice online violate his right to free speech? You be the judge.
In February 2014, U.S. district court judge Hilda Tagle agreed with Hines that he might very well have a First Amendment claim: “[H]e provided advice to pet owners over the Internet and … the professional regulations at issue in this case have prevented him from engaging in that speech.” Two months later, the state board appealed to the U.S. Court of Appeals for the Fifth Circuit in New Orleans. The judges ruled that the Texas law imposes a standard of care but has nothing to do with free speech: “It does not … require veterinarians to deliver any particular message.” The trouble, according to Rowes, is that circuit courts across the country have ruled differently on similar questions about the lines between speech and conduct, which is why, in June 2015, he took the case to the U.S. Supreme Court. However, in November, the court refused to hear the case, which leaves Hines where he started—with a license but unable to legally offer advice online. Rowes believes that given the explosion in telemedicine, the high court will eventually have to weigh in.
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