By TAMARA TABO - abovethelaw.com Posted November 23rd, 2015
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 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:
“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 Hinescould 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.
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.