Professional Speech Regulation, or a Story about a Man and a Horse

Back in 2015, I wrote about Ronald Hines, a Texas veterinarian who was sanctioned for providing veterinary advice without a license. Hines’ punishment was upheld largely because the Fifth Circuit determined that the a key factor in the state’s definition of “veterinary medicine” was the physical inspection of the animal in question — and Hines was not doing such inspections. This physical inspection requirement was, according to the court, regulation of conduct, and thus did not impinge upon Hines’ First Amendment rights.

This was . . . not a great decision. If the regulation of conduct prevents Hines from engaging in speech, how is it NOT a speech regulation?

Well, the wheels of justice can grind excruciatingly slowly, but they do grind. With the U.S. Supreme Court’s 2018 decision in NIFLA v. Becerra offering fresh light on the acceptable bounds of occupational speech regulation, Hines pressed his First Amendment claims anew. And in 2020, the Fifth Circuit reversed itself, holding that “Hines’ First Amendment claims may be entitled to greater judicial scrutiny than [the earlier decision] allowed,” and remanded the case to the trial court to determine whether the “inspection of the animal” requirement for veterinary advice is regulation of speech or conduct.

Earlier this month, Judge Fernando Rodriguez of the Southern District of Texas ruled, finding in line with the reasoning above: if a statute conditions a right to speak on engaging (or not engaging) in a particular form of conduct, that’s speech regulation. And it’s subject to strict scrutiny.

Those who would maintain a broad lawyers’ monopoly on legal advice should note this about Judge Rodriguez’ decision:

“[Hines] alleges that the Physical Examination Requirement, as applied to him, has wholly restricted him from interacting with pet owners, even when his communications do not consist of diagnosing, treating, or prescribing medication to animals. He cannot call or e-mail an animal owner, even if only to console pet owners or disseminate general information, unless he first physically examines the animal. In short, the overwhelming majority of what Hines sought to do, but which the Defendants prohibited him from doing unless he satisfied the Physical Examination Requirement, constituted speech and in no manner could be characterized as conduct.”

As with medical diagnoses and prescriptions, it’s possible that some tasks lawyers engage in — like representing clients before tribunals, or signing certain documents — might be determined to be conduct, and thus subject to greater regulation. But general “legal advice?” It’s hard to see how or why that should be treated differently than the services Ronald Hines was trying to sell to pet owners — services that can now only be regulated by the state of Texas upon a showing that such regulation satisfies strict scrutiny.