Appeals court upholds ruling against Internet veterinarian

Photo by Mark Meranta, Institute for JusticeYears of back and forth on whether the Texas Veterinary Practice Act violates the First Amendment rights of Ron Hines, DVM, by forbidding him to dispense veterinary "advice" via the Internet is now poised for possible review by the U.S. Supreme Court. On March 27, the U.S. Court of Appeals for the Fifth Circuit ruled that Hines' freedom of speech had not been suppressed by the state practice act, which requires veterinarians to physically examine a patient to establish a veterinary-client-patient relationship.

Hines' lawyer, Institute for Justice Senior Attorney Jeff Rowes, believes the appeals court got it wrong. He says Hines absolutely intends to seek review with the U.S. Supreme Court.

The appeals court takes the position that the practice act does not regulate the content of any speech, require veterinarians to deliver any particular message or restrict what can be said once a veterinary-client-patient relationship has been established. What's more, the court says states have broad power to establish standards for licensing practitioners and regulating the practice of professions. Therefore, the court ruled, the requirement for physical evaluation does not violate the First Amendment.

"The Supreme Court has long held that the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech," the ruling states. "Pursuant to this principle, there is a robust line of doctrine concluding that state regulation of the practice of a profession, even though that regulation may have an incidental impact on speech, does not violate the Constitution."

Hines' legal team must petition the Supreme Court by June 29 to hear the case. “Dr. Hines gives advice for a living, and advice is speech protected by the First Amendment," Rowes says. "This case is ripe for review because the federal courts of appeal across the country disagree about the extent to which the First Amendment protects the speech of licensed professionals when they give individually tailored advice.”

Rowes believes that if he and his team can demonstrate serious disagreement among federal courts of appeal on this issue, Hines' case is ideal for the high court to settle. "The Fifth Circuit overlooked key Supreme Court precedent and decisions from other federal courts making it clear that advice, including professional advice, is a form of speech protected by the First Amendment," he says. "There is now pervasive disagreement among the federal courts of appeal on the constitutional status of professional advice-some courts consider it protected speech; others don't-and the Supreme Court will eventually have to take a case like Dr. Hines' to resolve this conflict."

In addition to ruling on Hines' freedom of speech, the appeals court also upheld the dismissal of Hines' equal protection and due process claims, agreeing with the lower court's assessment of the role of a physical examination. "The requirement that veterinary care be provided only after the veterinarian has seen the animal is, at a minimum, rational: it is reasonable to conclude that the quality of care will be higher, and the risk of misdiagnosis and improper treatment lower, if the veterinarian physically examines the animal in question before treating it," the decision reads.

As it stands, Hines may not return to dispensing veterinary advice on his website, 2ndchance.info. The Texas Board of Veterinary Medical Examiners executed a disciplinary order on March 25, 2013, ordering Hines to cease his veterinary correspondence. His license was also suspended with probation for one year.

As the case may still face another appeal, the state board has no comment on the appellate victory, according to public information officer Loris Jones.

To read more about Hines' case, go to dvm360.com/internetvet.