We got a great decision this morning in vet speech. This is the case we originally filed in 2013 about Dr. Ron Hines, a Texas veterinarian who gives advice to pet owners around the world via internet.
Our case was dismissed by the 5th Circuit in 2015 in a short opinion saying that advice isn’t protected speech. We then refiled the same case after the Supreme Court handed down NIFLA in 2018 and affirmed our argument that the First Amendment protects people who speak professionally. Again we got dismissed.
This time, though, the 5th Circuit ruled in our favor. In December, it reversed the trial court, saying NIFLA overturned the 5th Circuit’s 2015 decision against Dr. Hines. The 5th Circuit then remanded the case and sent it back to the trial court to reconsider the motion to dismiss under the correct law. The magistrate judge just issued a report and recommendation to deny the government’s motion to dismiss our case with the money line: “The law in question is a content-based regulation of noncommercial speech, subject to strict scrutiny.”
This is a big deal because the language of the Veterinary Practice Act doesn’t restrict speech on the basis of content. It just says that you must examine a pet in person before doing anything. But, in Dr. Hines’ case, this requirement operates as a complete bar on his speech: He communicates with people all over the world and, as a disabled retiree, he can’t travel the globe examining pets before giving advice. Getting courts to recognize that the real world matters—how the law is actually applied to our client—is a huge step. This win also marks something special because Dr. Hines’ speech is true one-on-one, individualized advice, not speech directed to groups generally as in tour guides or even teaching cases (which, of course, is not meant to in any way diminish those foundational cases). Individualized advice is at the core of occupational speech. Indeed, the court says that courts must take care not to manipulate speech into conduct, which is the sort of sentiment that simply didn’t exist in free speech law until a very short time ago.
This is a tour de force opinion, which relies on cases we like and on other IJ wins.
I’m confident we can defend this before our trial judge if Texas contests this and then before the 5th Circuit. It’s possible Texas will go for an interlocutory appeal (meaning trying to appeal this ruling right now) and maybe seek en banc review before all of the judges of the 5th Circuit to rein in NIFLA. I’m not sure the state particularly cares what Dr. Hines is doing and wants to do a bunch of discovery on that, so we probably won’t go to trial. We shall see.
Free the Puppies!!