A federal judge in Texas has ruled that the veterinary correspondence Ron Hines, DVM, shared with pet owners on his website 2ndchance.info is subject to First Amendment interpretation. The Texas State Board of Veterinary Medical Examiners last year deemed Hines’ online veterinary advice to constitute unlawful veterinary practice, prompting the Institute for Justice, a civil liberties advocacy group, to take up Hines’ case, claiming the board had violated his right to free speech.
The Feb. 11 ruling from Senior Judge Hilda Tagle, who presides over the U.S. District Court for the Southern District of Texas, rejected the Texas board’s motion to dismiss the claim. “Texas argued that the First Amendment didn’t even apply because everything a licensed veterinarian does should be treated as ‘conduct,’ not ‘speech,’ even though all Dr. Hines did was talk to people,” says Hines’ lawyer, Institute for Justice Senior Attorney Jeff Rowes. “In rejecting this, the trial court ruled that the First Amendment does apply.”
The board, however, contends in a motion to the court that its enforcement of the state’s veterinary practice act, which requires a physical exam to establish a veterinarian-client-patient relationship, is rational given the state’s interest in “protecting the public health and safety by ensuring that veterinarians do not diagnose animals when they have never physically examined the animal.” Further, the board’s legal team, led by Texas Attorney General Greg Abbott, is relying on a lack of clear precedent on what degree of protection professional speech deserves under the First Amendment as it moves forward.
Abbott has submitted a motion to the district court for permission to take the First Amendment claim directly to the U.S. Court of Appeals. Confident the Court of Appeals will reverse Tagle’s ruling and dismiss Hines’ claim to First Amendment protection, the board’s legal team—which declined to comment but provided its motion to dvm360—believes it can avoid litigating the case in district court. “The Fifth Circuit will ultimately have to decide whether the First Amendment applies, and answering that question now, at the motion to dismiss stage, will define the proper scope of discovery or may terminate the case,” the motion states.
Rowes is not opposing the attorney general’s motion. “This accelerates the case and will make it one of the most prominent free speech cases in the country,” he says. “There are a number of cases out there trying to decide whether speech subject to occupational licensing is protected by the First Amendment. Dr. Hines wants this question answered and so we don’t oppose the vet board trying to push this up.” He adds that depending on the outcome, the case may eventually have to be decided by the Supreme Court.
“It shouldn’t be illegal for a veterinarian to give veterinary advice. That includes advice given over the Internet,” he says. “This case will help ensure that the Internet can be used to communicate expert advice better, faster and more cheaply than has ever been possible.”
Hines’ resolve is only strengthened. “I never had a single doubt or regret about giving people honest advice online,” he says. “Judge Tagle’s decision was wonderful news that makes me hopeful that we will eventually win the case.”