The Volokh Conspiracy
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Restriction on Veterinary Advice Given via Telemedicine Violates First Amendment
From yesterday's decision in Hines v. Pardue, by Fifth Circuit Judge Don Willett, joined by Judges Cory Wilson:
Dr. Ronald S. Hines is a retired, physically disabled, Texas-licensed veterinarian who enjoys spending his golden years giving online pet-care advice to animal lovers around the world—often for free. Dr. Hines does not physically examine animals, perform surgeries, apply casts, splints, or bandages, administer vaccinations, or prescribe prescription medication. He merely sends emails. This would be no problem if the patients were people instead of pets. For humans, Texas law allows telemedicine without first requiring a face-to-face examination to establish a physician-patient relationship. Not so with animals, which require an in-person visit. Exam-free telehealth, turns out, is fine for your Uncle Bernard, but not for your Saint Bernard.
No one ever complained about Dr. Hines's online pet-care advice or alleged that it harmed a single animal. However, because Dr. Hines does not physically examine animals before sharing his expertise, the State of Texas considered some of his emails criminal offenses, going so far as penalizing him with a year of probation, fining him $500, and forcing him to retake the jurisprudence section of the veterinary licensing exam….
Today, we uphold Dr. Hines's First Amendment rights. We specifically conclude that the State of Texas is directly regulating Dr. Hines's speech and that this regulation fails to survive even intermediate scrutiny….
First things first, we must determine what the physical-examination requirement primarily regulates. The State does not dispute that Dr. Hines's speech is implicated. It contends that the physical-examination requirement restricts Dr. Hines's speech incidentally to the general regulation of conduct. So, we consider whether the requirement regulates Dr. Hines's speech directly or only incidentally to the regulation of his conduct. On the one hand, all Dr. Hines does is send emails—pure speech. But on the other, the law regulates his speech as part of the practice of veterinary medicine. {We are mindful that under "[Supreme Court] precedents, [s]tates may regulate professional conduct, even though that conduct incidentally involves speech."} …
[C]ircuit courts have, until recently, applied the so-called professional-speech doctrine to licensing regulations like this one. These courts, including our own, treated laws regulating professionals' speech as a separate category from non-professional speech, entitling them to less protection and exempting them from traditional First Amendment scrutiny. The Supreme Court, however, rejected this doctrine in NIFLA v. Becerra (2018), and instructed courts to apply the "traditional conduct-versus-speech dichotomy." But "[a]s it stands today, the relevant First Amendment doctrine is a mind-numbing morass of tangled precedents developed in contexts very different from professional licensing."
The "notoriously foggy" speech-conduct dichotomy makes "finding the line between speech and conduct … not as simple as asking whether the prohibition is literally one against verbal or written 'speech,' on the one hand, or one against 'conduct' (i.e., nonverbal action) on the other." In as-applied challenges—especially those involving "generally applicable regulation[s] of conduct," such as the regulation here—a particular act constitutes protected speech, rather than unprotected conduct, if that act "consists of communicating a message."
For example, a generally applicable regulation proscribing breaching the peace regulated speech, rather than conduct, when an individual was arrested and convicted for wearing a jacket that said "F*** the Draft" inside a courthouse. The Supreme Court found the conviction to "clearly rest[ ] upon the asserted offensiveness of the words [the plaintiff ] used to convey his message to the public." Because "[t]he only 'conduct' which [California] sought to punish [wa]s the fact of communication," the Supreme Court applied First Amendment scrutiny and reversed the conviction.
In another (and more apt) example, a law proscribing support for "the humanitarian and political activities of" two designated terrorist organizations, which "generally function[ed] as a regulation of conduct," regulated speech because as "applied to [the] plaintiffs[,] the conduct triggering coverage under the statute consist[ed] of communicating a message"—individualized legal advice. As the court recognized, whether the plaintiffs could speak with designated terrorist organizations"depend[ed] on what they [said]" because the regulation barred certain forms of speech—including "speech to those groups [that] impart[ed] a 'specific skill' or communicate[d] advice derived from 'specialized knowledge.'"
Our goal then is to determine whether the physical-examination requirement primarily affects Dr. Hines's speech ("communication of a message") or his conduct by looking at what "trigger[s] coverage under the statute." …
The State contends that the law is primarily a conduct regulation because the definition of practicing veterinary medicine applies to a "set of skilled actions"—that is, conduct. But calling an act "speech" or "conduct" (or "actions") does not make it speech or conduct for First Amendment analysis. Indeed, the Supreme Court has been clear: "State labels cannot be dispositive of [the] degree of First Amendment Protection." It is a court's duty to consider a "restriction's effect, as applied, in a very practical sense"—not to follow whatever label a state professes. If courts were required to accept a governmental actor's speech-or-conduct designation, we would be compelled to forgo our solemn duty to "assess[ ] the First Amendment interest at stake and weigh[ ] it against the public interest allegedly served by the regulation." This means we must determine from the evidence, rather than the parties' labels, whether Dr. Hines's course of action involved speech.
The State identified Dr. Hines's provision of "individually tailored diagnostic services and veterinary medical advice for specific animals" as practicing veterinary medicine. Dr. Hines was penalized specifically for engaging in the practice of veterinary medicine without first establishing VCPRs [veterinarian-client-patient relationships] in person. But in detailing the specific acts that constituted the practice of veterinary medicine in violation of the physical-examination requirement, the State pointed to Dr. Hines's email exchanges in which he communicated individualized diagnoses and treatment plans with various animal owners.
For example, Dr. Hines was contacted by an owner whose bird had managed to remove a splint on its leg only a week after its placement by a local veterinarian. The bird owner, who was concerned that the bird's legs were crossing and that this might inhibit its mobility, attached a video of the bird to the email she sent Dr. Hines. Dr. Hines wrote back and informed the owner that a splint was necessary to ensure the bird's full recovery, and he instructed the owner on how to make a splint and how to apply and adjust it. The State concluded, based on the conclusions of its investigator and experts, that Dr. Hines had engaged in the practice of veterinary medicine without establishing a VCPR by communicating (via email) an individualized diagnosis and treatment plan to the bird owner.
Critically, not all of Dr. Hines's conduct was barred. Indeed, the State did not find Dr. Hines's review of the owner's email or video or the substance of his diagnosis and treatment plan violative of the physical-examination requirement; the State did not penalize Dr. Hines for viewing charts or considering different medical reports. And the State did not penalize him for applying a splint or administering medicine—nor could they. Instead, the State only penalized him for his communication with the owner about her bird in which he gave a diagnosis and treatment plan. In effect, the regulation only kicked in when Dr. Hines began to share his opinion with his patient's owner—as is the case with all of Dr. Hines's alleged violations of the physical-examination requirement. Because the act in which Dr. Hines engaged that "trigger[ed] coverage" under the physical-examination requirement was the communication of a message, the State primarily regulated Dr. Hines's speech.
The majority concurred that it need not decide whether the law was content-based or content-neutral, because it was unconstitutional even under the less demanding legal standard applicable to content-neutral speech restrictions. An excerpt:
The State's defense of the physical-examination requirement focuses exclusively on its interest in animal welfare…. [But] the State has failed to show that the alleged harms to animal welfare in the context of the physical-examination requirement are real.
The State alleges that the physical-examination requirement protects animal welfare by reducing the risk that veterinarians will misdiagnose—and thereby harm—animals. In other words, the harm the State seeks to address is misdiagnosis by veterinarians who conduct telemedicine without first performing a physical exam….
Before the district court, the State relied on a literature review conducted by Dr. Teller. The State does not press this evidence before us now, likely because the review didn't find any evidence of actual harm. It found "no published reports of veterinarians providing inadequate or substandard care via virtual care." And it found no "studies comparing in clinic visits with telehealth visits to determine if there is concordance between the findings of those exams." Although it mentions "risks of missed diagnoses" as a "concern[ ]," a hypothetical concern—even if seemingly significant—is insufficient to identify a "real harm."
[The expert witnesses'] anecdotes fare no better….
The State has effectively proven that veterinarians believe that a physical exam is helpful and that telemedicine should be used only as a follow up to the in-person exam. Indeed, a physical exam seems to be a plus factor to a veterinarian's analysis—a check for physical ailments or physical manifestations of ailments that may not be readily apparent to a pet's owner. These are risks that an individual knowingly chooses to forego by choosing a telemedicine appointment for their animal.
But proving that a physical examination is helpful is not enough. The State has failed to meet its burden of proving that misdiagnoses from telemedicine are a real harm in this case. The State emphasizes that the physical exam reduces the risk of misdiagnosis from telemedicine without an exam and argues that it can enact prophylactic rules before the harm occurs. Both are true, and the State's interest in reducing misdiagnoses is legitimate. But the State cannot meet its burden of proving real harm by pointing to "risks" of harm—or hypothetical concerns—that, according to the evidence, have never materialized….
Even if the harms alleged by the State were real, as the State contends, the law suffers from a fatal defect: The State fails to prove that the law "alleviate[s] these harms in a direct and material way."
The first problem with the State's chosen means is apparent on the face of the statute itself. There are two ways a vet can establish the VCPR, and one of them doesn't require a physical exam at all. To recap, a veterinarian must first establish a VCPR before practicing veterinary medicine. The VCPR exists "if the veterinarian: … possesses sufficient knowledge of the animal." And "[a] veterinarian possesses sufficient knowledge of the animal … if the veterinarian has recently seen, or is personally acquainted with, the keeping and care of the animal by: (1) examining the animal; or (2) making medically appropriate and timely visits to the premises on which the animal is kept." But the VCPR cannot "be established solely by telephone or electronic means."
The State does not explain how the law alleviates the harm of misdiagnoses from telemedicine without a physical exam when the VCPR can also be established by a visit to the premises without a physical exam. Although the State's experts testified that the premises-visit option is typically used for herd animals, she conceded it is not so limited, testifying that the "premises" visited "could be the premises on which a dog is kept." Nor does the plain text provide this limitation. And furthermore, the State fails to explain why a "recent[ ]" physical examination—which has no definition—is sufficient to establish a VCPR. For example, why would a "recent" physical examination in the last year or two provide any better insight into an animal's condition than a real-time telehealth appointment without a preceding physical examination?
If that weren't enough, the State's looser approach to human welfare undercuts the State's insistence on a physical exam to advance animal welfare. After all, the State of Texas allows exam-free telemedicine for babies and noncommunicative adults—those who, like animals, cannot communicate with their physicians. How can the State insist a hands-on exam is necessary to protect animals while conceding a hands-on exam is unnecessary to protect humans? Put differently, why does Texas mandate tougher telehealth rules for veterinarians treating animals than for physicians treating people? The State does not say….
Judge Irma Carrillo Ramirez concurred, arguing that the "the physical examination requirement, as applied to [Hines], is a content-based speech restriction that does not survive strict scrutiny"; a short excerpt:
Here, it is the interaction between the PER [physical examination requirement] and the statutory definition of practicing veterinary medicine as applied to Dr. Hines that he challenges as a content-based restriction on his speech. To determine whether Dr. Hines engaged in the practice of veterinary medicine, the State examined his words. Where Dr. Hines's communications conveyed general information regarding veterinary care that was not tailored to a specific animal, the State found that Dr. Hines had not engaged in the practice of veterinary medicine. Where he had communicated veterinary-care information tailored to a specific animal, however, the State drew the opposite conclusion….
[E]ven assuming arguendo that the PER is content neutral under City of Austin v. Reagan National Advertising (2022) and Ward v. Rock Against Racism (1989), it may nevertheless be content based under McCullen v. Coakley (2014). A law may be facially content neutral yet content based in application….
Andrew Heller Ward and Jeff Rowes (Institute for Justice) represent Hines.
