How much advice is a veterinarian entitled to offer online?
The boundaries of the question are being explored in a US court case involving Texas internet veterinarian Ron Hines.
Last month, the US District Court for the Southern District of Texas denied the Texas State Board of Veterinary Medical Examiners’ motion to dismiss 69-year-old Hines’ challenge to a Texas law banning online veterinary advice.
The court ruled that the First Amendment applies to veterinarians who give advice online. The Institute for Justice, a civil liberties law firm, filed the free-speech lawsuit on behalf of the Brownsville-based Hines just over a year ago. He runs a website called 2ndchance.info.
Senior Judge Hilda Tagle ruled that the First Amendment applied to the professional regulations at issue in the case, and that the regulations, as applied to Hines’ professional speech, are subject to heightened scrutiny.
Hines, a retired and physically disabled Texas-licensed veterinarian, has used the Internet since 2002 to help pet owners across the country and around the world, often for free.
He helped people who received conflicting diagnoses from their local vets, who lived in parts of the world without access to trustworthy veterinarians, and who could not afford traditional veterinary care. No-one has ever complained about his advice.
“It shouldn’t be illegal for a veterinarian to give veterinary advice,” said Jeff Rowes, senior attorney with the Institute for Justice.
“That includes advice given over the internet. 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.”
In 2013, Hines discovered he had been on a decade-long crime spree. In Texas, as in a majority of states, it is a crime for a veterinarian to give advice over the internet without having first physically examined the animal.
On March 25, the Texas Veterinary Board shut Hines down, suspended his license, fined him, and made him retake portions of the veterinary licensing exam.
The institute said Texas did this without even an allegation that he had harmed any animal.
The institute says the 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?
The nation’s lower courts are conflicted, and although the US Supreme Court has ruled that advice is speech, it has not applied that ruling in the context of occupational licensing and the internet.
Ultimately, this question will need to be answered by the Supreme Court.
“The court’s ruling sets a very high bar for Texas to justify its blanket ban on online veterinary advice,” the institute’s Texas executive director, Matt Miller, said.
“The court squarely rejected the government’s argument that these are merely restrictions on conduct, and recognized the law for what it is: a content-based restriction on speech.
“People don’t check their First Amendment rights at the door when they enter a licensed occupation.”
A victory in the lawsuit could unleash a revolution in the way information is shared across the US and around the world.
The institute argues that Hines’ challenge has implications for all speaking professions across the country, as well as the countless people worldwide who benefit from them.
The board argues that its enforcement of the state’s veterinary practice law, requiring a physical exam to establish a veterinarian-client-patient relationship, is rational. It has its basis in protecting the public health and safety by ensuring veterinarians diagnose only animals they have physically seen.
It is possible the case may go directly to the US Court of Appeals, given the lack of legal precedents on the issue. The case may eventually go to the Supreme Court.
Hines welcomed the ruling, telling media that he had never had a single doubt or regret about giving people honest advice online.
The lawsuit seeks to eliminate obsolete regulatory barriers to the use of the internet to provide expert advice. It has implications for medicine, law, psychology, financial advice, and many other occupations that often involve nothing but speech in the form of advice.
Hines, through his website, helps pet owners from across the country and around the world, often for free and sometimes for a $US58 flat fee. If he determines that he cannot help, he refunds the fee.
The institute says: “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.
The institute describes Texas as 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”.
It says 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.
“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.
Hines has brought two First Amendment claims:
- Texas cannot require him to physically examine an animal before offering free veterinary advice;
- Texas cannot require him to physically examine an animal before offering veterinary advice for compensation.
He argues it is irrational for Texas to prohibit him from offering online veterinary advice in contexts where there is no realistic alternative and the pets in question will have to go without care altogether.