FW Star-Telegram: Speech must still be free on the Internet

By Mike Norman
Fort Worth Star-Telegram
Originally published Feb. 14, 2014

The Internet has given us an explosion of information, commentary, communication and just plain word flow the likes of which have never been seen before.

You’d think our democracy could handle it — and for the most part, it has.

Words on the Internet are not without restriction. Threats, bullying, reckless lies and fraud are just as wrong in cyberspace as they are in the real world.

Still, serious questions and court fights have been raised about whether speech on the Internet is free speech.

Austin attorney Arif Panju, who works for the Virginia-based Institute for Justice, sent word this week of a federal court case in Brownsville centered on just that question.

(Full disclosure: I work with Arif on the board of directors of the Freedom of Information Foundation of Texas.)

On Tuesday, Senior Judge Hilda Tagle issued a key ruling against the Texas State Board of Veterinary Medical Examiners in a case brought by Ron Hines, a retired and physically disabled Texas-licensed veterinarian.

Since 2002, Hines has used the Internet to dispense free advice to pet owners around the world. But in Texas and most other states, veterinarians commit a crime if they give advice over the Internet without first physically examining the animal.

On March 25 of last year, the Texas Veterinary Board suspended Hines’ license, ordered him to pay a fine and required him to retake portions of the veterinary license exam.

Keep in mind that there is no allegation that any animals were harmed. This is simply a case of using the Internet to give advice.

When Hines fought back, the state board argued that it was regulating conduct, not speech, and asked the judge to dismiss Hines’ complaint.

Not so fast, the judge said, “the Court finds that the First Amendment applies to the professional regulations at issue in this case. …”

The board’s regulations must be examined under the First Amendment’s guarantee of free speech, the ruling continued.

Score one for an open Internet.

The Hines case is similar to others across the nation, Institute for Justice information shows.

In 2011 in North Carolina, diabetic blogger Steve Cooksey started an advice column about food choices. A month later, a state board told him he could not do that because he was not a licensed dietitian.

The board even went through 19 pages of his writings and marked with a red pen the things he was not allowed to say without a government-issued license.

A district court upheld the state’s action. But last year, a three-judge panel for the 4th U.S. Circuit Court of Appeals overturned that ruling. The appeals court said it had “no trouble” deciding that Cooksey’s First Amendment rights had been injured.

Both of these cases involved government attempting to use occupational licensing laws to block Internet speech.

In a similar case last year in Kentucky, a state board even tried to block publication of a newspaper advice column, accusing writer John Rosemond of “unlicensed practice of psychology.”

After Rosemond filed a federal lawsuit and the case got national attention, the state board tried to backpedal, saying it was not trying to censor free speech.

But what else would you call it when they told him not to write his column? Think how many decades Dear Abby must have broken the law.

There’s an evolving issue here of what the government can and cannot do in regulating professional speech, on the Internet or elsewhere.

Unless there is actual harm done (remember, things like threats, bullying, reckless lies and fraud) free speech is free speech, and the First Amendment protects it.