After more than a decade of litigation that has taken many twists and turns, a federal appeals court recently ruled that the clinical advice a veterinarian emailed to pet owners was constitutionally protected speech under the First Amendment.

The case came before the court for the third time, after Dr. Ronald S. Hines again initiated litigation based on changes in U.S. Supreme Court First Amendment precedent relative to professional speech. A three-judge panel of the federal 5th Circuit Court of Appeals explained in its September 26 ruling that, as applied to Dr. Hines, the Texas statute requiring in-person establishment of a veterinarian-client-patient relationship (VCPR) violates the retired veterinarian's First Amendment rights.

The court's ruling is effective only to the specific circumstances "as applied" to Dr. Hines. The court did not invalidate the Texas VCPR statute. In fact, the court found that it is a generally applicable law that regulates professional conduct, which is not protected under the First Amendment.

After more than a decade in the court system, Hines vs Pardue received its most recent ruling, this time in favor of Dr. Ronald S. Hines, from the 5th Circuit Court of Appeals in New Orleans. The case involves whether Dr. Hines's First Amendment rights were violated by a Texas statute regulating the establishment of a veterinarian-client-patient relationship.

It was very important to the court that Dr. Hines "merely sends emails" and did not engage in conduct. The 5th Circuit created a limited exception to the Texas VCPR statute for Dr. Hines because his emails were considered protected speech. The court indicated that Hines did not prescribe medication, physically examine animals, perform surgeries, or other conduct.

Because the state's enforcement action was centered around Dr. Hines communication of a message and not conduct, the court viewed the case as directly regulating his speech. When viewed as applied to Dr. Hines, the statute was not sufficiently narrowly tailored to survive the applicable legal standard, according to court documents.

The Texas VMA sent an email recently cautioning Texas veterinarians to be cognizant that the ruling is only "as applied" to Dr. Hines, and the Texas VCPR statute was not invalidated. While the case may certainly impact how Texas enforces it's VCPR statute, the implications are for speech under circumstances such as those described in the case. This means that veterinarians who engage in conduct in violation the Texas VCPR statute may be inviting an enforcement action.

As for what's next, the Texas attorney general may request an "en banc" review of the case by all 17 active judges on the 5th Circuit court or petition the U.S. Supreme Court for review. If Texas does not seek to appeal or both courts decline to rule further, the ruling will remain in effect in all 5th Circuit states-Louisiana, Mississippi, and Texas.

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