IJ victories require perseverance. We must overcome bad precedent, entrenched opposition, and, sometimes, losses in court. When we lose, our perseverance may take the form of a media blitz to shame our adversaries into reform or a legislative push to repeal a bad law. It might also mean heading back to court for a rematch.
In December 2020, Dr. Ron Hines, a veterinarian in Brownsville, Texas, won his First Amendment rematch with the Texas veterinary board, which fined and suspended him for offering his expert advice to pet owners online. Ron first teamed up with IJ in 2013 to challenge a law that required veterinarians to examine an animal in person before talking to its owner over the phone or internet.
Back in 2002, disability forced Ron to retire from the brick-and-mortar practice of veterinary medicine. But, like many retirees, he still had a wealth of knowledge and experience to share with the world. He began using the internet to help pet owners across the country and around the globe. For 10 years, Ron helped hundreds of people care for their animals without incident, either for free or for a nominal fee to cover his expenses. Then in 2012, the Texas vet board cracked down on him, enforcing a law that made it illegal to talk to pet owners about their pets without first examining the animal in person.
IJ and Ron brought a free speech lawsuit as part of IJ’s national effort to ensure that occupational speech—that is, speech people engage in for a living—receives the same First Amendment protection as any other speech. When we filed our case, courts often treated this kind of speech as a constitutional pariah, allowing the government’s ability to regulate occupations to trump the First Amendment in almost every case. As a result, we lost Ron’s case in 2015, with the 5th U.S. Circuit Court of Appeals ruling that his emails and telephone calls—despite consisting only of words—were not really speech because he was a “professional.”
But IJ continued to forge ahead on occupational speech in our own cases and in amicus briefs in others. This paid off in a string of court victories, including a 2018 Supreme Court decision that adopted our view of occupational speech. The Court explained that speech is not unprotected merely because it is uttered by professionals. This landmark ruling enabled IJ and Ron to go back to court and right a wrong.
After two more years of hard-fought litigation, Ron prevailed before the 5th Circuit, which ruled that the 2018 Supreme Court decision had nullified his earlier loss and that the First Amendment indeed protects occupational speech. This was the fourth federal appeals court victory IJ secured in 2020 in an occupational speech case. In just over 10 years, IJ has prompted a complete about-face by the courts on the issue of occupational speech, transforming free speech law from “of course occupational speech isn’t protected” to “of course it is.”
This victory for telemedicine couldn’t have come at a more important time. As the pandemic has made clear, telepractice is essential in all fields. IJ will fight on to secure a complete and final victory that allows Ron to get back to doing what he does best: helping people and their pets. Meanwhile, with the First Amendment now on their side, countless other professionals and their clients will also have robust legal protection against pointless and often protectionist laws.
Jeff Rowes is an IJ senior attorney.