Occupational Speech: The New Hazard?

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Since 2002 Texas-licensed veterinarian and Ph.D. Microbiologist, Dr. Ron Hines, has been helping pets and pet owners by giving online advice. Hines offered his advice for a $58 flat fee— or for free to those who could not pay— to pet owners around the world, often helping those who otherwise are without access to veterinary advice. After suffering from a debilitating injury that left him unable to practice, Hines began posting pet-care advice online. Pet owners responded by seeking advice from Hines, where he estimates he has helped more than 700 pet owners.

Although no client ever complained about Hines’ advice, in March 2013 his online practice was shut down and the Texas Board of Veterinary Medical Examiners suspended his license and imposed fines against him. Unknowingly, Hines had been committing a crime for 10 years under a Texas statute, which prevents a veterinarian from giving advice solely over the Internet. Veterinarians must physically examine the animal before administering professional advice. The law does not, however, limit its applicability to Texas or to those who otherwise have access to veterinary care. Rather, the law precludes Hines’ clients from around the globe from relying on his advice, although they have no alternative to help their pet.

Advocates for Hines, including the Institute for Justice, argue that the First Amendment protects the right to seek advice from an expert, wherever they may be. This implicated not only the unsettled question regarding regulated Internet speech, but also the government’s power to control direct speech with clients through occupational licensing.

The Supreme Court held in Holder v. Humanitarian Law Project that professional conduct falls outside of the First Amendment’s scope of protection. Nevertheless, the Courthas not addressed directly whether professional speech demands First Amendment protection. Restrictions of commercial speech would affect professionals in legal, financial, and medical fields, whose professions rely on administering advice through speech. In addition, the Court has not agreed on what constitutes commercial conduct versus speech. Hines argues that any advice he gave was “pure speech” because his advice was never followed with any conduct, such as medical procedures or distributing medication.

Although not binding, a three-justice opinion in Lowe v. SEC implied that the First Amendment does not protect advice where a client is seeking an expert opinion. Relying on Lowe, the Eleventh Circuit held a Florida statute regulating an interior designer’s professional speech was not overbroad because it regulated “direct, personalized speech with clients” which has “a merely incidental effect of protected speech.” Again, a lower court applied Lowe, finding a blogger who gave dieting advice on the Internet acted illegally under dietitian-licensing laws. The Supreme Court, however, has not since recognized the language in Lowe.

Up to a third of the U.S. working force is currently affected by licensure requirements, with that number likely to continue to grow. Thus, if the Court were to find under Lowe that advice is not speech, thus not protected under the First Amendment, the implications would extend far beyond Hines and unauthorized practice of veterinary medicine. As more professions are regulated, further speech will be regulated without protection of the First Amendment.

Posted by Kathryn H. Van Wie on Sun. April 14, 2013 8:52 AM
Categories: Freedom of Speech

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