The Volokh Conspiracy
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Veterinarian's Advice May Be Protected by First Amendment
Federal district court holds that the First Amendment sharply limits restrictions on such professional-client speech, at least when the speech doesn’t involve “prescribing medication or reaching a diagnosis.”
From Hines v. Quillivan, decided Thursday by Judge Fernando Rodriguez, Jr. (S.D. Tex.):
Plaintiff Ronald S. Hines … seek[s] declaratory and injunctive relief to permit him to give medical advice to animal owners without having physically examined the animal, as Texas law requires (the "Physical Examination Requirement")….
As the Fifth Circuit explained [in an earlier decision in this case], the First Amendment issue before the Court on remand is a narrow one: "[W]hether the [Physical Examination Requirement] regulate[s] only speech, restrict[s] speech only incidentally to their regulation of non-expressive professional conduct, or regulate[s] only non-expressive conduct." … Hines advances an as-applied challenge to the Texas statute. As a result, the Court analyzes the application of the Physical Examination Requirement in relation to the facts of this particular case, and not whether the law would be constitutional regarding every possible practice by all Texas veterinarians….
[Humanitarian Law Project v. Holder (2010)] proves particularly relevant to the analysis. In that case, several individuals and humanitarian organizations brought an as-applied challenge to a federal statute that prohibited providing "material support" to designated terrorist organizations. The Supreme Court stated that "[e]ven if the material-support statute generally functions as a regulation of conduct, as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message." Additionally, the Supreme Court reasoned that the law was a content-based regulation of speech because the law barred the plaintiffs from providing legal advice and training to organizations if their speech "impart[ed] a 'specific skill' or communicat[ed] advice derived from 'specialized knowledge,'" but not if their speech communicated unspecialized information. As the statute's restrictive application turned on the content of the plaintiffs' speech, the Supreme Court rejected the Government's argument and concluded that the law represented a content-based regulation of speech subject to strict scrutiny.
The application of the Supreme Court's reasoning in HLP to the present case leads to the same result. While the Texas statute may generally regulate the conduct of veterinarians, as applied to Hines, it regulates his alleged speech.
First, it is undisputed that Hines did not physically examine any animal. Instead, he alleges that all of his interactions with pet owners took the form of verbal and written communications. He provides various examples of the nature of those interactions. He consoled distressed pet owners, recommended that pet owners seek immediate veterinary care because an animal's symptoms indicated a serious medical condition, clarified information that other veterinarians had provided to pet owners, helped pet owners "decide how to proceed when local veterinarians had provided conflicting diagnoses," and generally pointed them to relevant information on the internet.
[Hines' Complaint alleges that] Hines never prescribed medication or rendered any diagnosis. At times, if he discovered an error in a prescription that a pet owner received, he would provide guidance to the pet owner so that she could visit her local veterinarian to ask that the prescription be corrected. These alleged actions by Hines constitute speech, and not conduct. And based on these communications, the Defendants found that Hines violated the Texas statute and initiated disciplinary proceedings against him. In other words, as in HLP, "the conduct triggering coverage under the statute consist[ed] of communicating a message."
The impact of the disciplinary proceedings upon Hines's actions further demonstrates that the Defendants applied the Texas statute to regulate his speech. He alleges that the Physical Examination Requirement, as applied to him, has wholly restricted him from interacting with pet owners, even when his communications do not consist of diagnosing, treating, or prescribing medication to animals. He cannot call or e-mail an animal owner, even if only to console pet owners or disseminate general information, unless he first physically examines the animal. While he alleges that he "always requested the complete medical records from the owner's local veterinarian," even if the review of medical records may be categorized as conduct, that activity appears to be a small fraction of the activity for which the Defendants initiated disciplinary proceedings against Hines. In short, the overwhelming majority of what Hines sought to do, but which the Defendants prohibited him from doing unless he satisfied the Physical Examination Requirement, constituted speech and in no manner could be characterized as conduct.
{If, through discovery, the Defendants reveal that Hines primarily engaged in prescribing medication or reaching a diagnosis, then the Defendants may possess a more powerful argument that they can advance at a later stage in these proceedings.}
In the same manner, the Defendants' application of the statute is content-based. In HLP, the challenged law, as applied to the plaintiffs, permitted them to communicate unspecialized information, but not legal advice derived from specialized knowledge.
In essence, the application of the statute depended on the content of the communications. Likewise, to determine whether Hines is engaging in veterinary practices so as to trigger the Physical Examination Requirement, it is necessary to know the content of his communications. He may presumably communicate general information about animals, but not information that falls within Section 801.002(5) of the Texas Veterinary Licensing Act. This distinction squarely meets the definition of a content-based regulation, as defined in HLP.
Given that the Defendants' application of the challenged Texas statute to Hines represents a content-based regulation of his speech, it is subject to strict scrutiny. The Defendants in their objections do not challenge the analysis in the Report and Recommendation of whether the Defendants, at this stage of the proceedings, satisfy this level of review. [The Report concluded that "the Court should deny the motion to dismiss and permit the case to move forward to discovery, which would allow the State Board to bring forth any evidence it has to meet its burden" of satisfying strict scrutiny. -EV] The Court concludes that they have not, for the reasons articulated in the Report and Recommendation.
Congratulations to Jeff Rowes, Anya Bidwell, and Andrew Ward of the Institute for Justice on the win.