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SCOTUS Lets Texas Law Stand Limiting Online Veterinary Advice

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By Jonathan R. Tung, Esq. on November 30, 2015 2:55 PM

SCOTUS has let stand a case decided by the Court of Appeals by the Fifth Circuit involving what has been deridingly called occupational speech limits by civil rights advocates.

The High Court's decision not to grant the case cert means continued confusion about just how much limitation states can place on their professionals concerning the content or manner of their speech. It appears that scholars will have to wait before they see whether or not Holder v. Humanitarian Law Project has any further exceptions up its sleeve.

Brief Background

The facts of the case begin with Dr. Ronald Hines, a semi-retired licensed veterinarian in Texas. Hines started a website upon his retirement that offered advice online on how to care about pets. Eventually, pet owners contacted him and he began offering advice. He did not physically examine the afflicted animals and offered his advice completely either through the phone or via email. For those who could afford it, he charged a flat fee of $58.

In 2012, the Texas Board of Veterinary Medical Examiners charged him with violating state law that prohibits vets from interacting with pet owners "soley by telephone or electronic means." He was fined $500. He sued in a Texas federal District Court and won his claim on First Amendment grounds. He lost at the Fifth Circuit, which reversed the lower court's ruling.

Conduct, Not Speech

The panel unanimously agreed that states have broad power to regulate professionals and that Texas imposed a particularly applicable standard of care: vets must physically examine an animal. At core, the law "does not regulate the content of any speech or require veterinarians to deliver any particular message," the panel said.

Circuit Conflicts

In facts that are materially similar, the Ninth Circuit also rejected a First Amendment challenge to a California Law that many thought targeted "conversion therapy" designed to change minors' sexual orientation and preferences. The Ninth Circuit panel said this was a restriction of medical treatment -- not speech. This was, in effect, in line with the Fifth Circuit's ruling, although the language justifying the decision was different.

The Eleventh Circuit, in a case that does not involve medical "advice" (for a lack of a better term), has issued confusing opinions on the issue of whether doctors may ask patients if they keep guns at home.

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