Texas Veterinary Speech

Introduction: Free Speech and Internet Freedom

Since 2002, Dr. Ron Hines, a 69-year-old licensed veterinarian in Brownsville, Texas, has used the Internet to advise hundreds of pet owners across the country and around the world, often for free. The Internet is a portal through which Ron, who is a physically disabled retiree, remains productive and shares his lifetime of wisdom and experience. He has given advice to pet owners on every continent except Antarctica. For pet owners in remote places, Ron is the only realistic option.

But now the Texas Vet Board—in violation of the First Amendment—has reprimanded him, fined him, and suspended his license. In Texas, it is a crime for a veterinarian to give veterinary advice without having physically examined the animal, something Ron does not, and cannot, do. In censoring Ron, Texas has become the latest battleground in the nationwide fight between people who want to use the 21st century technology of the Internet to share their knowledge, and government licensing boards using a 19th century regulatory framework to suppress that knowledge in an effort to control who may say what to whom.

Texas cannot make it a crime for people to share their own ideas.

Texas singled out electronic veterinary advice in 2005 when the growing availability of online veterinary information began causing pet owners to visit their local veterinarians less frequently. The primary effect of this law is to squelch online veterinary advice and force pet owners to make expensive appointments with their local vets.

No pet owner has ever complained to Ron or the Vet Board about his advice. Nor is there evidence that Ron, or Internet veterinary advice in general, is a danger to animals. The Internet is filled with veterinarians offering online advice. Online veterinarians such as Ron help pet owners in parts of the world without access to a qualified vet, and help Americans who cannot afford a vet. Local TV and radio shows across the country, including in Texas, have programs where people call in to a vet for advice. Inexpensive electronic alternatives to costly veterinary appointments are a huge benefit to pet owners everywhere.

Texas cannot make it a crime for people to share their own ideas. Ron’s advice is pure speech—words written in email or spoken over the phone. The First Amendment does not allow the government to censor speech in the form of advice without compelling evidence that such regulation is absolutely necessary, evidence that is absent here.

That is why, on April 9, 2013, Ron joined the Institute for Justice to file a major free-speech lawsuit in the U.S. District Court for the Southern District of Texas to protect Internet freedom and the right of Americans to seek advice from knowledgeable people wherever they may be found. This lawsuit has implications not only for veterinary medicine, but also for every occupation in which valuable professional advice can be shared across state and international borders.

Dr. Ron Hines: Using the Internet to Help Pet Owners Everywhere

Ron has loved animals since he was a boy. In addition to his veterinary training, he has a Ph.D. in microbiology. In 1966, he enlisted in the U.S. Public Health Service and worked at the National Institutes of Health. In 1978, he was awarded the Surgeon General’s Commendation medal. He retired from the PHS reserve in the early 1980s as a Lieutenant Colonel.

Ron left the Public Health Service due to health problems following a 1973 accident at an NIH facility in Maryland. He was fixing equipment in an animal lab and fell into a pit of machinery, crushing several vertebrae. Though not paralyzed, Ron lost most sensation below his waist and walks with difficulty and pain.

After leaving the Public Health Service, Ron worked as a full-time veterinarian, owning clinics in Florida and even working at Sea World. In 2002, Ron retired because age and disability left him without the stamina to maintain a physical practice.

That same year, he launched a website to share his pet articles with the public and to stay in touch with pet owners. Ron was inundated with emails from pet owners seeking advice, and he realized that the Internet presented him with a tremendous opportunity to help animals and the people who care for them. He estimates that he has helped over 700 pet owners. Only five percent of these people are in Texas. 45 percent are elsewhere in the U.S., and the remaining 50 percent are overseas.

Some questions are fairly straightforward. For example, in 2012, Ron helped a woman in Turkey devise a cat-food recipe for her iodine-deficient cat. She had to make her own food because the manufactured food for this condition contains pork, which cannot be imported into Turkey for religious reasons.

The majority of his emails, however, require Ron to be a veterinary Sherlock Holmes. Pet owners come to Ron when they have an animal with a chronic problem and local vets have given conflicting diagnoses. These pet owners, who are frequently buckling under mounting vet bills, will send Ron copies of lab reports, prescriptions, photos of the animal, and other relevant information. Ron will review the material, consult veterinary journals, and then offer the pet owner his perspective. He often sees errors in medication, when either the wrong drug is prescribed or the right drug at the wrong dose. Pet owners are able to return to their primary vets armed with Ron’s knowledge.

Ron often corresponds with people in regions of the world where there is little if any vet access. For example, in May 2012, he received an email from a woman who is doing AIDS relief in rural Nigeria. She and her husband brought their cat from Scotland. There are no veterinarians in their region of Nigeria so she uses email to get advice from Ron. Ron is often the only realistic option for many pet owners.

Ron makes it clear to the people he helps that there are limitations to what he can do via the Internet. Sometimes he cannot offer any advice because of the limitations of email and telephone. And when there is an emergency, he has told pet owners to take their pets to a veterinary hospital immediately. He simply helps when he can.

Ron’s Work Is a Labor of Love

When he first began answering pet owners’ questions, Ron did not charge anything. He received so many inquiries, however, that he decided to charge a flat fee of $8.95 to screen out the minor issues. He gradually raised his flat fee to $58, which enabled Ron to focus on the most difficult cases, the ones where he can do the most for an animal. If he determines that he cannot help, he refunds the fee.

Ron does not require people to pay. He answers all questions, regardless of payment. For example, Ron has helped free of charge an impoverished man in New Hampshire who lost both legs in an industrial accident and whose only family is his beloved dog. When a situation arose that Ron could not address via online advice, Ron used his contacts in the veterinary community to find this man free veterinary care in his area. The little money Ron makes from his website only covers his expenses. He has never made more than $2,800 in any year, despite working several hours a day all year long.

For Ron, helping pets is both a labor of love and a spiritual obligation. Though he supports the use of animals in research, he has come to believe that not all of the research that he was involved with at the National Institutes of Health was truly necessary and thus caused unneeded suffering in research animals. Ron thinks of his website as a way to repay that moral debt by alleviating the suffering of animals today.

Ron places great emphasis on the human aspect of his advice. Many of his email correspondents are elderly people who live alone with their pets. Their pets are very important to them. Ron often just provides a kind ear when a pet’s case is hopeless.

Ron’s Advice Is Pure Speech

Ron’s veterinary advice is pure speech—words written in emails or spoken over the phone. There is no conduct associated with this speech. Ron does not send medication to pet owners (he does no prescribing at all). He does not take x-rays, administer injections, or perform procedures on animals (he never physically sees them). He does nothing but communicate his knowledge in words with grown adults who want to hear those words. As the U.S. Supreme Court made clear in Holder v. Humanitarian Law Project, a 2010 case about whether legal advice should be classified as speech or as professional “conduct,” the government cannot claim that a citizen is engaged in conduct outside the protection of the First Amendment when “the conduct triggering coverage under the statute consists of communicating a message.”1

Texas Censors Ron

Ron has never had any complaints and no one has complained about him to the Texas Vet Board. There is nothing radical about what Ron was doing. There are many websites where for free or for a fee one can obtain individualized advice from a veterinarian, even though most states prohibit veterinary advice unless the vet has physically examined the animal.2 Most states do not require an in-person examination before a vet may provide advice over the telephone or Internet. There are many websites, as well as call-in radio and TV shows, including ones in Texas, where people are able to get useful advice from a veterinarian without having to visit in person.

Ron’s case raises one of the most important unanswered questions in First Amendment law: When does the government’s power to license occupations trump free speech?

Ron was stunned in March 2012, when the Vet Board told him that his advice to pet owners is illegal. He was even more shocked when the Vet Board instituted formal proceedings to punish him, despite the absence of complaints, much less any harm done to any animal. Eventually, on March 25, 2013, the Vet Board ordered him to cease advising pet owners online, reprimanded him, fined him, forced him to retake a portion of the veterinary-licensing exam, and suspended his license for one year.

The basis for sanctioning Ron and censoring his Internet advice is the prohibition under the Texas Veterinary Licensing Act on establishing a vet-client-patient relationship over the phone or via the Internet unless the vet has recently examined the animal in person (even if that examination had nothing to do with the advice now being offered). There does not appear to be any evidence that online veterinary advice harms animals. There is evidence, however, that the growing availability of online veterinary information has reduced the need of pet owners to make expensive in-person visits to their local veterinarians. Thus, the primary effect of Texas’s law is less to help animals than to force pet owners to use brick-and-mortar vets rather than an Internet alternative such as Ron.

First Amendment Fight Will Help Determine the Future of Internet Advice

Texas’s purported authority to forbid Ron from using the Internet to communicate ideas in the form of advice is rooted in a nonbinding 1985 opinion by three U.S. Supreme Court Justices in Lowe v. SEC.3 The opinion in Lowe suggested that the First Amendment does not apply to advice in contexts where a client is asking an expert for a professional opinion.

Ron’s case raises one of the most important unanswered questions in First Amendment law: When does the government’s power to license occupations trump free speech? Ron’s free-speech challenge has implications for all speaking professions—including medicine, law, psychology, financial advice, and many others—across the country.

The Supreme Court has never cited the three-Justice Lowe opinion, and has grown significantly more protective of speech, including commercial and political speech, since then. In 2010, the Supreme Court held that legal advice is protected speech.4 If legal advice is a form of speech protected by the First Amendment, then so too should other types of advice be considered protected speech, including Ron’s veterinary advice.

Some lower courts, however, have relied on Lowe to rule that advice is not protected speech when the government is regulating that advice through occupational licensing. For example, in 2011, the U.S. Court of Appeals for the Eleventh Circuit ruled that the aesthetic advice of a paid interior designer was not protected speech and could be regulated by interior-designer licensing laws.5 In another example, a federal court dismissed a First Amendment challenge by a North Carolina blogger, who was told by the state dietitian board that giving dietary advice over the Internet was illegal under dietitian-licensing laws, because that court did not consider dietary advice to be speech.6 These lower courts treat personal advice as outside the First Amendment because they regard advice not as speech, but as a form of conduct subject to ordinary occupational regulation (such as that which might govern welding or filling a cavity). These courts have carved out an exception to the First Amendment for advice.

These lower courts’ expulsion of advice from the First Amendment is in irreconcilable conflict with Supreme Court precedent ruling that only a few categories of historically unprotected speech—such as defamation and incitement to immediate violence—are outside the First Amendment.7 And as noted earlier, the Supreme Court has ruled that the government cannot classify speech as “conduct” when the alleged “conduct” consists of nothing more than communicating a message.8
Expelling advice from the First Amendment also conflicts with the decisions of other federal courts that treat advice as speech protected by the First Amendment. For example, the U.S. Court of Appeals for the Ninth Circuit applied the First Amendment to a challenge by psychoanalysts to California’s psychology-licensing statutes.9

The danger posed by excluding advice from the First Amendment will only grow as more and more occupations become subject to government licensure. As licensing expands—one in three workers now needs a government-issued license; it was one in twenty in the 1950s10—so too will opportunities for censorship. The growth of licensing coincides with the growth of the Internet as an unprecedented source of information and advice for ordinary people. Millions of Americans use blogs, social media, and other online venues to seek and receive advice about topics such as parenting, pregnancy, marriage, and other serious issues.

Ultimately, Ron’s case, or another like it, will have to go to the Supreme Court to resolve the conflict among the lower courts about whether the First Amendment applies to advice that the government is restricting in the name of occupational licensing. For his part, Ron is fighting to defend Internet freedom and is willing to go to the highest court in the land if that is what it takes to ensure that pet owners, and everyone else who uses the Internet for advice, are able to exercise their right to free speech.

The Plaintiff

Dr. Ronald Hines is a Texas-licensed veterinarian and a resident of Brownsville, Texas.

The Defendants

The Defendants are the members of the Texas State Board of Veterinary Medical Examiners11, all of whom are sued in their official capacities.

The Claims

Ron has brought two First Amendment claims: (1) Texas cannot require him to physically examine an animal before offering free veterinary advice; and (2) Texas cannot require him to physically examine an animal before offering veterinary advice for compensation.

Ron has also brought a substantive due-process claim that it is irrational for Texas to prohibit Ron from offering online veterinary advice in contexts where there is no realistic alternative to Ron and the pets in question will have to go without care altogether.

Finally, Ron has also brought an equal-protection claim that it is irrational for Texas to treat a qualified and duly licensed veterinarian as a layperson—i.e., someone who is prohibited from offering veterinary advice—when that veterinarian concludes that it is professionally appropriate to render veterinary advice without first physically examining the pet.

The Litigation Team

The litigation team consists of Institute for Justice Senior Attorney Jeff Rowes12 and Institute for Justice Texas Chapter Executive Director Matt Miller.13

About the Institute for Justice

The Institute for Justice is the nation’s leading legal advocate for First Amendment rights and economic liberty. The Institute has challenged efforts to use occupational-licensing laws to silence speech by a North Carolina blogger;14 For Sale By Owner websites in California15 and New Hampshire;16 interior designers in Connecticut,17 Florida,18 New Mexico,19 and Texas;20 and tour guides in New Orleans,21 Philadelphia,22 and Washington, D.C.23

[1] Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2724 (2010).

[2] http://www.justanswer.com/pet/

Home

http://www.tufts.edu/vet/nutrition/
http://www.vmth.missouri.edu/clin_nu.htm

Homepage 4/27

http://www.pearl.com/sip/veterinarians
http://www.vetinfo.com/vets/answers/
http://www.vetlive.com/
http://www.wilnerveterinaryconsult.com
http://www.petmend.com/phone-internet-consultations.shtml
http://petnutritionconsulting.com
http://www.rainbowbridgevet.com/Phone_Consult.html
http://wizofpaws.net/laurie_coger-consultation.asp
http://www.naturalpetfamily.com/naturalpet/phone-consultations.html
http://www.askariel.com/product-p/72.htm
http://vet.tufts.edu/fhsa/veterinary_specialties/pain_clinic.html

[3] 472 U.S. 181 (1985).
[4] Holder, 130 S. Ct. at 2724.

[5] Locke v. Shore, 634 F.3d 1185 (11th Cir. 2011).

[6] Cooksey v. Futrell, 2012 U.S. Dist. LEXIS 144397 (W.D.N.C. Oct. 5, 2012).

[7] U.S. v. Stevens, 130 S. Ct. 1577 (2010).

[8] Holder, 130 S. Ct. at 2724.

[9] National Ass’n for the Advancement of Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000).

[10] Dr. Dick Carpenter and Lisa Knepper, Institute for Justice, License to Work: A National Study of Burdens from Occupational Licensing (May 2012). Available at: https://ijstaging.wpengine.com/licensetowork

[11] http://www.tbvme.state.tx.us

[12] https://ijstaging.wpengine.com/staff/jrowes

[13] https://ijstaging.wpengine.com/staff/mmiller

[14] https://ijstaging.wpengine.com/paleospeech

[15] https://ijstaging.wpengine.com/forsalebyownercom-v-zinneman

[16] https://ijstaging.wpengine.com/skynet-corporation-dba-zerobrokerfeescom-v-slattery

[17] https://ijstaging.wpengine.com/susan-roberts-v-jerry-farrell

[18] https://ijstaging.wpengine.com/locke-v-shore

[19] https://ijstaging.wpengine.com/sherry-franzoy-and-caryn-armijo-v-barbara-templeman

[20] https://ijstaging.wpengine.com/byrum-et-al-v-landreth-et-al

[21] https://ijstaging.wpengine.com/nola-tours

[22] https://ijstaging.wpengine.com/tait-v-city-of-philadelphia
[23] https://ijstaging.wpengine.com/dc-tours