A Texas veterinarian recently failed in his efforts to avoid a state regulation mandating in-person (technically in-pet) physical exams . The vet argued the regulation violated his First Amendment rights. The United States Court of Appeals for the Fifth Circuit disagreed. The case illustrates a sort of "old school" v. "new school" dilemma increasingly common in our online world.
In 2002, a retired vet named Ronald Hines created a Web site w here he would answer questions from pet owners. Sometimes Hines would charge a fee, other times not
In 2013, the Texas Veterinarian Board suspended Hines, allegedly for violating a regulation requiring a vet to establish a "veterinarian-client- patient relationship.'" The regulation explicitly states that such a relationship cannot be established solely through the tele phone or Internet
Hines, assisted by an organization called The Institute for Justice, argued the regulation infringed his First Amendment rights. In Hines' view, the regulation made it illegal for veterinarians to give veterinary advice. In the Veterinarian Board's view, Hines could write articles generally about veterinarian issues, but he crossed the line when he dealt with specific patient issues on line.
The Fifth Circuit sided with the Board. In the court's view.the regulation fell within the Board's broad power to regulate the profession. The Court considered the regulation content neutral, and therefore not a First Amendment violation.
The "content neutral" argument is interesting. On the one hand. the regulation applies no matter what the vet says to the patient And so, in that sense it's content neutral But on the other hand, is it? Dr. Hines could presumably talk with his Web audience about just about anything he chose, free from any government intervention. But when the content involves veterinarian advice, the regulation kicks in. Doesn't sound all that content neutral in that light does it?
Dr. Hines describes his lawsuit as "a fundamental challenge to an obsolete approach to regulating professions ." But. for now. at least in Texas , it looks like the old school approach is winning.