A retired, disabled veterinarian has a First Amendment right to give online pet advice without undergoing a physical examination, a federal appeals court has ruled.
Dr. Ronald S. Hines has been a licensed vet since 1966. He does not physically examine pets or perform surgeries, however. Instead, he provides a form of telemedicine for pets. But Texas has a law that requires licensed veterinarians to examine animals physically.
In 2002, Hines retired from his full-time practice and launched a website about veterinary care. People began e-mailing him questions about pet care. He answered many of these questions from his home in Brownsville, Texas.
In 2012, the Texas State Board of Veterinary Medical Examiners informed Hines that his wholly electronic veterinary practice violated Texas law, which requires vets either to examine pets physically before rendering care or visit the home where the pet lives.
In 2013, Hines challenged the physical-exam requirement on First Amendment grounds. The case has been up to the 5th Circuit multiple times since then. In the latest lower-court ruling, a federal district court held that the law regulated Hines’ speech, that the law was subject to intermediate scrutiny, and that the law was constitutional because it furthered the state’s substantial interests.
In the latest appeal, the 5th Circuit reversed the federal district court on Sept. 26, 2024, in Hines v. Pardue and found that the physical-examination requirement violated Hines’ First Amendment rights.
The 5th Circuit first determined that Texas’ physical-exam requirement does regulate Hines’ speech rather than his conduct. The appeals court then found that the law violated the First Amendment, because it didn’t even satisfy intermediate scrutiny.
The state of Texas claimed the law advanced the substantial interest of protecting animal welfare. However, the 5th Circuit found that “the State has failed to show that the alleged harms to animal welfare in the context of the physical-examination requirement are real.”
The state vigorously argued that a physical examination of a pet is very helpful to its care. The 5th Circuit accepted this contention, but noted that the “State has failed to meet its burden of proving that misdiagnoses from telemedicine are a real harm in this case.”
The 5th Circuit also determined that that the physical-exam requirement was not narrowly tailored.
David L. Hudson Jr. teaches First Amendment law and constitutional law classes at Belmont University College of Law. He is the author, co-author, or co-editor of more than 50 books, including The Constitution Explained: A Guide for Every American (Visible Ink Press, 2022) and The First Amendment: Freedom of Speech (Thomson Reuters, 2012).
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