In a response posted on its website, the North Carolina Board of Dietetics/Nutrition states that it reached out to Cooksey after a complaint was submitted and "no legal action has ever been threatened or taken." It also argues that "unless a person is otherwise exempt, a license is required to provide nutrition care services."
Whether these types of licensing laws are a violation of the First Amendment is a question largely unexplored by the courts. In the Supreme Court case Lowe v. SEC, the court sought to determine whether a person who writes an investment newsletter would be considered an investment adviser and therefore subject to regulation by the SEC. In a concurring opinion, Justice Byron White wrote that "the power of government to regulate the professions is not lost whenever the practice of a profession entails speech." But he ultimately concluded that "at some point, a measure is no longer a regulation of a profession but a regulation of speech or of the press; beyond that point, the statute must survive the level of scrutiny demanded by the First Amendment." For this particular case, White found that the investment newsletter fell under this second category and was therefore protected as free speech.
Alan Howard, a law professor at Saint Louis University who teaches a course on the First Amendment, points out that there are many professions with services that primarily involve speech. "If you think about it, most things lawyers do require speech," he says. "They write legal opinions, they write briefs, they advise clients. So mainly what they're doing is speech. It doesn't follow that everyone has a First Amendment right to do the same thing."
But Hines, unlike Cooksey, actually has a license associated with the advice he's giving. He is, after all, a veterinarian. In his case, Texas isn't saying he can't give medical advice for pets, it's limiting the mediums with which he can give that advice. Howard predicts the state will argue that a veterinarian would not be able to perform his job competently by just having symptoms described to him over the phone or email, but he says this argument is a "longshot." "If it can be shown that the advice the vet is giving over the internet based on what he's told is the same advice he would give in his office if the patient showed up, then I don't think that it should turn on the medium by which he's giving the advice,"
Some experts are skeptical that a veterinarian would be able to give high quality advice without examining the animal in person. Patricia Wohlferth-Bethke, the assistant director for the American Veterinary Medical Association's field services division, argues that in nearly all instances it's better to treat an animal in person as opposed to online. "You get the physical exam, you're able to question the owner, and it's that interaction that has the value – having the animal examined prior to treatment," she says.
Wohlferth-Bethke says that it may be appropriate in some cases for a vet to answer follow-up questions after an examination via email or other electronic means, but even then the vet's ability to give quality advice diminishes the longer it's been since the animal was seen in person.
"Depending on the disease process, sometimes a week is too much, sometimes a month is too much," she says. "So that's where the judgment of the veterinarian comes in."