What Happens To A Texas Veterinarian Could Make A Difference In What You're Allowed To Say

This Term the Supreme Court could issue one of its most important rulings to date on the legal status of occupational speech -- speech performed in the context of one’s occupation or profession.

What happens to one Texas veterinarian could make a big difference in the lives of licensed professionals across the country, including attorneys.

When the United States Supreme Court holds its next conference this Tuesday, November 24, the Justices will consider whether to grant certiorari in the case of Hines v. Alldredge. If SCOTUS agrees to hear the case, the Court’s decision could be one of its most important rulings to date on the legal status of occupational speech — speech performed in the context of one’s occupation or profession.

The petitioner, Ron Hines, is a veterinarian who, after retiring from nearly 40 years of traditional veterinary practice in 2002, began offering advice to pet owners through online articles about pet health, as well as email and phone conversations with individuals who sought his help. He prescribed no medications. He performed no procedures. He made clear on his homepage and in his site’s terms of use that his advice and support should not replace appropriate care by a local veterinarian.  

The Texas Board of Veterinary Medical Examiners nevertheless sanctioned Hines.

The Vet Board had tightened its rules in 2005, arguably in order to squeeze out online resources for pet owners that had begun drawing away business from brick-and-mortar vet clinics. The new rules stipulate that vets can only practice if they have recently examined an animal or visited its home. Section 801.351(c) of the Texas Occupations Code now expressly states, “A veterinarian-client-patient relationship may not be established solely by telephone or electronic means.”

Hines, represented by counsel from the Institute for Justice, subsequently argued in court that the law as applied to him violated his free speech rights under the First Amendment.  

The Fifth Circuit Court of Appeals upheld the state’s speech restriction because it applied to licensed professionals in the context their occupation. So, Hines is now asking the Supreme Court to review the case. In his cert petition, he writes:

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“This petition raises a matter of first impression in this Court about occupational speech.  While such speech is widespread, this Court has never squarely addressed its constitutional status.  The Fifth Circuit below held that restrictions on veterinary-medical advice are not subject to First Amendment scrutiny.  There is now a direct, outcome-determinative split of authority between the Fifth and Eleventh Circuits on the one hand, and the Third and Ninth Circuits on the other, over whether the First Amendment protects medical advice.  More generally, the decision below also deepened intractable splits of authority over whether restrictions on occupational speech are ever subject to First Amendment scrutiny.”

Amici filing briefs supporting Hines include the Cato Institute with the Mackinac Center for Public Policy, the Pacific Legal Foundation, the Association of American Physicians and Surgeons, and a cohort of citizens who believe their own speech rights have been violated by various state occupational licensing bodies.

There are plenty reasons why SCOTUS should grant cert in Hines. The ruling in Hines could subject licensed professionals in all fields to sweeping limits on what and how they communicate, without the state needing to provide much justification for why particular speech must be outlawed.  

But first, consider the lower court’s mix-up of two distinct concepts in First Amendment law.

Apparently, the Fifth Circuit mistook content neutrality for viewpoint neutrality. What the opinion seems to pack into its explanation of why the law is content-neutral, in fact, more accurately explains why the law is viewpoint-neutral.  

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The Fifth Circuit opinion characterizes the state law at issue by stating, “It does not regulate the content of any speech, require veterinarians to deliver any particular message, or restrict what can be said once a veterinary-client-patient relationship is established.” The opinion later refers again to “content-neutral regulation” and evaluates the law under the lower level of scrutiny ordinarily applied to content-neutral restrictions.

The Vet Board rule that would prevent Dr. Hines from speaking as he wishes, however, is simply not content-neutral.  

A restriction on speech is viewpoint-based if it favors or disfavors a particular opinion communicated by the speech. So, if the Board told Texas veterinarians that they may not suggest dietary changes to treat a condition for which there is a prescription medication available, that would be a viewpoint-based restriction. They would be limiting vets to only advocating one side of a controversial issue.

So, the Vet Board’s restriction at issue in this case is obviously not viewpoint-based. It does not tell vets what message they must convey to clients or prospective clients or what side of a controversy vets must advocate.  

But Hines has never argued that the law is viewpoint-based. He has argued that it is content-based.

A content-based restriction prohibits speech that falls under a particular topic. It doesn’t distinguish among opinions within the topic. A content-based restriction forbids speech on an entire subject.  

Here, the verboten topic is veterinary care. The rule doesn’t prevent Dr. Hines or any other vet from discussing, say, the topic of constitutional law with owners of pets he hasn’t physically examined. It prevents him from discussing veterinary medicine with them.  

The Fifth Circuit’s apparent confusion on this point matters. Content-based speech restrictions are presumptively invalid. When challenged, they face strict scrutiny. So, when the Fifth Circuit flubs by calling the law in Hines “a content-neutral regulation,” it goes on to further flub by applying only rational basis review, a much lower standard for the state to meet.

Now, let’s turn to the effect the case can have on the rest of us.

In order to appreciate the potential impact of the ruling, bear in mind that this case is fundamentally about what level of scrutiny courts must use when reviewing laws limiting occupational speech. Hines argues that courts should apply First Amendment scrutiny to restrictions on occupational speech. On the other hand, the Vet Board contends that its restriction need only survive the rational basis test. That standard is low enough to allow state bodies to restrict much more speech than is necessary.

In Hines, the Vet Board offers no evidence that this restriction on veterinarians’ speech is necessary to protect pet patients or human clients. Notably, in Dr. Hines’s particular case, no client filed complaints, and the Board alleged no other professional violations committed in the course of his online service. No one claims that Hines offered advice outside the scope of his expertise or that he took advantage of the people who sought his help.   

Speech restrictions that protect clients or patients from unethical or incompetent professional service can be crafted so that they meet the First Amendment’s standards of heightened scrutiny. For example, licensing bodies can still restrict a professional’s speech involving fraud without having the virtually unfettered leeway of a rational basis standard.

The speech we need to worry about under the Hines rule is not the sort of speech that most of us expect could and would be limited by law — speech by professionals that poses a significant risk to the public. What’s worrisome is how much farther licensing bodies could go.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.