Shook Amicus Brief Addresses Texas Veterinary Professional Code and Free Speech Rights
Public Policy Group Co-Chair Phil Goldberg and Of Counsel Christopher Appel, working with Partner Stephanie McGraw in the firm’s Houston office, submitted an amicus curiae brief in the U.S. District Court for the Southern District of Texas in Hines v. Quillivan, No. 1:18-CV-155, on behalf of the American Veterinary Medical Association and Texas Veterinary Medical Association.
In the case, a veterinarian had been providing veterinary advice solely through email and phone conversations and was disciplined by the Texas Board of Veterinary Medical Examiners for violating the state’s professional code of conduct that requires a veterinarian to establish an in-person veterinarian-client-patient-relationship (VCPR) before providing care to an animal. Similar provisions are common in federal and other state laws. He challenged the regulation as violating his right to free speech by infringing on the content of his communications.
Shook’s amicus brief explained that the VCPR is a content-neutral regulation of professional conduct that does not offend the First Amendment. If the veterinarian was merely talking to pet owners as a knowledgeable person, the VCPR would not apply. But once he engages in the practice of veterinary medicine, the VCPR is rationally related to the important public purposes of protecting animal welfare and safeguarding the public against zoonotic diseases and potential food supply contamination. It further explained how invalidating the VCPR rule on free speech grounds would undermine countless other content-neutral rules of professional conduct in Texas and other jurisdictions.
Echoing themes from the amicus brief, the District Court determined the veterinarian could maintain his First Amendment claim based on his assertion that he was not engaged in the practice of veterinary medicine, namely that he “never prescribed medication or rendered any diagnosis” in those communications. The court noted, however, that if, through discovery, it is revealed that the veterinarian was engaged in prescribing medication, reaching a diagnosis or other acts for which he needs a veterinary license, then “a more powerful argument” would exist that the veterinarian violated the VCPR requirement.
Goldberg and Appel are members of Shook’s National Amicus Practice, which files more than 30 amicus briefs each year in federal and state courts. The National Amicus Practice also publishes a regular report called The Last Resort: Reporting on America’s High Courts, which tracks cases of interest to the business community that are granted review and decided by state supreme courts and the U.S. Supreme Court. To sign up to receive The Last Resort alert, contact Phil Goldberg at pgoldberg@shb.com.
