AEIdeas

The public policy blog of the American Enterprise Institute

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Discussion: (21 comments)

  1. …and this in an era when Pharmaceutical companies can direct advertise drugs for anxiety or frizzy hair whose side effects include suicidal thoughts, loss of memory, death, dimemberment…

  2. Just to note that one has to be careful here, the internet pharmacies and their dispensing of painkillers often have a physician interview the patient over the web, and then prescribe the painkillers. One might if this moves to the human side, still provide that for some medications, it would require a visit. Plus of course given that medicine is still largely a state regulated business, it has always been illegal to practice medicine (human or animal) across state lines.

    1. morganovich

      lyle-

      lots of human medicine gets practiced across state and even international lines.

      tele-radiology is a huge field. doc do reads from all over.

      you may have a tech take your mri down the street, but it may well be read in costa rica or bangalore.

      1. Some states have explicitly adopted telemedicine statutes, while others have not adopted rules at all – a mishmash.

      2. And now government bureaucrats in can read them as well.

      3. The issue I was speaking of was specifically prescriptions for controlled substances, which are being abused thru the telemedicine process. So it might well become that you need to see a physician in person to get a prescription for a controlled substance (or perhaps a substance that is often abused) but otherwise not. Of course the same meds are available to vets as well.

        1. Lyle

          Setting aside the question of whether substances SHOULD be controlled, why do you believe that physicians I visit in person are more law abiding than physicians I visit on the internet?

    2. Lyle: “ One might if this moves to the human side, still provide that for some medications, it would require a visit.

      Why? Assuming you mean a legal requirement, isn’t the doctor I consult on the internet better qualified to determine whether a visit is necessary than the government?

    3. Lyle,

      Did you watch the video? Ron was dispensing only advice, explicitly stating he does not write prescriptions.

  3. “… advice is speech. And the first amendment doesn’t let Texas censor Ron’s advice.”

    This is categorically wrong. The first amendment says:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Congress shall make not law…. The constitution restrains the federal government, not the states. You can argue that this was a poor choosing of words, and I would agree, but the above statement from the video is flat wrong.

    1. Ken: “This is categorically wrong. The first amendment says:

      I think you’ll find that’s covered by the fourteenth amendment:

      “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      1. And yet, the video doesn’t mention the fourteenth amendment once. Additionally, the Slaughterhouse cases gutted the privileges and immunities clause, so your bolded sentence is meaningless given the past 100 years of Supreme Court case law (though I think that case law was decided properly), which Scalia even pointed out recently in the Heller or McDonald case.

        My statement still stands unchanged that the first amendment does indeed not protect citizens from speech laws passed by state and local legislatures. You have to include the fourteenth amendment, then acknowledge that since 1873 the privileges and immunities clause rulings have been decided wrong.

        1. Edit: … your bolded sentence is meaningless given the past 100 years of Supreme Court case law (though I think that case law was decided improperly)…

        2. Ken

          My statement still stands unchanged that the first amendment does indeed not protect citizens from speech laws passed by state and local legislatures.

          You are correct in the strict sense. the first amendment does NOT protect against state and local speech laws.

          You are also correct that the 14th amendment, as interpreted in the Slaughterhouse cases, concerned itself with privileges and immunities in relation to the state’s police powers, as Justice Miller made clear in writing the opinion for the court, but in addition he pointed out that federal rights were indeed protected, including, we can assume, speech.

          You have to include the fourteenth amendment, then acknowledge that since 1873 the privileges and immunities clause rulings have been decided wrong.

          I have no problem acknowledging that the SCOTUS decides wrong in many if not most cases. The number of failures is alarming, especially since 1937 when the Court gave up protecting us from government overreach. And now that the states have been rendered toothless, we have no counterbalance to the power of federal government, except jury nullification and individual civil disobedience.

          However none of that really matters, as the Texas State Constitution also protects free speech, as do all state constitutions as best I can tell.

          1. I don’t know what you mean by the statement that I am right in the “strict” sense. I am correct in all senses in my original comment.

            Nor do I understand why you are arguing with me, after conceding that I am right. The fourteenth amendment, nor the Texas state constitution are relevant at all to my original comment. Why are you bringing up these things as if I said that the US constitution doesn’t protect free speech or that I said the Texas state constitution doesn’t protect free speech? The video clearly stated the it was the first amendment, without mentioning anything else in the constitution, that protected Ron from Texas’s law. It doesn’t. All of the other things you’re bringing up won’t change that.

            What the video said is akin to saying is “Article 1 Section 5 is about the structure of the senate”. The statement is wrong. Of course, if you continue on to Section 6, there it is, but the statement would still be wrong.

          2. Ken

            I don’t know what you mean by the statement that I am right in the “strict” sense. I am correct in all senses in my original comment.

            Nor do I understand why you are arguing with me, after conceding that I am right. The fourteenth amendment, nor the Texas state constitution are relevant at all to my original comment.

            LOL, OK, Mr. anal retentive, I give up. You win. You only mentioned the 1st amendment.

            You might consider advising Mr. Hines and the IFJ that they can’t possibly succeed in their suit against the Texas State Board of Veterinary Medical Examiners using that first amendment argument. Apparently they haven’t thought it through as carefully as you have.

          3. Ken

            Perhaps Ron Hines and the IFJ are relying on article VI clause 2 of the US Constitution (the supremacy clause) to elevate the 1st Amendment above Texas State law.

    2. Sprewell

      Considering that most of his patients seem to be outside Texas, the states probably have no jurisdiction in the first place. As for those within Texas, would you say the second amendment also doesn’t apply to state law? Because as Ron points out, that’s certainly not what the Supreme court found in the McDonald case. If your point is that that only holds true since the fourteenth amendment, eh, they don’t have to mention that every time, it’s the first amendment that’s most relevant here.

  4. I suspect the difference is the fee involved: Without a fee it would clearly be a free speech issue, but with a fee it becomes commercial speech which is a different class. I was just looking at potential consequences involved.

    Note the definition of the practice of vet medicine at the Texas vet medicine licensing bureau: “You need a license to practice Vet Medicine: That may seem like a pretty obvious statement, but it isn’t in reality. The Veterinary Licensing Act defines the practice of veterinary medicine as the diagnosis, treatment, correction, change, manipulation, relief or prevention of animal disease, deformity, defect, injury, or other physical condition, including the prescription or administration of a drug, biologic, anesthetic, apparatus, or other therapeutic or diagnostic substance or technique; representation of an ability and willingness to perform the acts listed above; or use titles, words, or letters to induce the belief that a person is legally authorized and qualified to perform an act listed above; or the receipt of compensation for performing an act listed above.”

    1. Lyle

      Note the definition of the practice of vet medicine at the Texas vet medicine licensing bureau:

      Ron Hines is licensed by the state of Texas to practice vet medicine.

      I suspect the difference is the fee involved: Without a fee it would clearly be a free speech issue, but with a fee it becomes commercial speech which is a different class.

      The questionable concept of commercial speech was plucked out of thin air by the SCOTUS in Valentine v. Chrestensen (1942), and has been controversial ever since. In any case, commercial speech must propose a commercial transaction, such as “Buy my vitamin enriched doggie treats for your dog’s health” as opposed to just charging a fee for expert advice from which the adviser gains nothing further.

      If that were not so, anyone who speaks for a fee (Dress-stainer Clinton comes to mind) would be subject to commercial speech regulations.

  5. PeakTrader

    “In Texas, it is a crime for a veterinarian to give advice over the Internet without having first physically examined the animal.”

    And, it’s poor practice (e.g. a lack of information) for a medical doctor to give medical advice for a fee without physically seeing the patient.

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