Since last week’s post regarding the the First Amendment and lawyer licensing, there’s been a development on the occupational licensing front. On Friday, the Fifth Circuit issued its decision in Hines v. Alldredge, denying a First Amendment objection to a Texas law regulating the practice of veterinary medicine.
There are some significant differences between that case and the practice of law. The most important difference is the fact that the veterinary regulation in question arguably relates only to conduct, not speech. It requires that a vet physically inspect the animal in question, or the premises in which it lives, prior to providing veterinary care at the animal hospital or otherwise.
It’s also the case that the Texas definition of “the practice of veterinary medicine” is far more specific than the vague, amorphous concepts larded into most definitions of “the practice of law.” In Texas, the practice of veterinary medicine is defined as “the diagnosis, treatment, correction, change, manipulation, relief, or prevention of animal disease, deformity, defect, injury, or other physical condition, including the prescription or administration of a drug, biologic, anesthetic, apparatus, or other therapeutic or diagnostic substance or technique.” It also includes holding oneself out as a vet, or being compensated for practicing veterinary medicine.
Ronald Hines, who was disciplined in the Texas case, is an experienced vet who provided veterinary advice to pet owners, over the phone or via email, for a flat fee of $58.00. He would evaluate records and consult on conflicting diagnoses and medications, but he did not prescribe any medications – and he did not physically inspect any of these pets.
The case turned on this lack of physical inspection, which is required (by occupational regulation) in order to have a veterinary-client-patient relationship; such a relationship is in turn required in order to engage in “the practice of veterinary medicine.” The court found that this was a form of conduct regulation, and any burden on speech was incidental: Hines couldn’t lawfully provide the advice (speech) because he hadn’t carried out the prerequisite physical inspection (conduct).
Although the decision doesn’t touch on this, the fact that the defendant was a veterinarian probably played a big role – that is, the court likely thought that if Hines was going to hold himself out as a vet, he needed to meet the requirements of being a vet. It’s possible that a different result would have been reached if the case had involved a non-veterinarian – say, an experienced horse trainer – providing paid online equine health advice sessions.
Finally, the decision cites to the “broad power” states have to establish licensing standard and regulate the practice of professions. But as Paul Sherman noted, this historical precedent and deference doesn’t give states a free pass – or even a thumb on the scale – when it comes to speech regulation, except in those limited cases where there is long history of that particular type of speech being unprotected.
The conduct/speech distinction here is facially appealing; it makes sense that certain types of veterinary care cannot properly be provided in the absence of an examination. Yet it is troubling when applied broadly, as it was here. It presupposes that the state can meet the lesser burden associated with conduct regulation to foreclose whole categories of speech, the direct regulation of which would need to survive strict scrutiny.
I’m sure this case will be appealed to the Supreme Court; hopefully the court will take it, and provide some clarity to the acceptable contours of occupational licensing. I will probably post again later this week with further thoughts on what this decision means, if anything, to the viability of expansive regulation of the practice of law.