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Carolina Journal News Reports

Paleo-Diet Blogger Expects to Lose First Round of Free Speech Lawsuit

Steve Cooksey prepared to appeal to U.S. Supreme Court if necessary

Aug. 28th, 2012
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RALEIGH — A federal judge said a Charlotte-area man advocating a Paleolithic or “caveman” diet on his blog is “unlikely to succeed” in his claim that the North Carolina Board of Dietetics/Nutrition has violated his freedom of speech.

In an order dated Aug. 7, U.S. District Court Judge Max Coburn denied Steve Cooksey’s request for a preliminary injunction against the board, which Cooksey claims is stopping him from giving nutritional advice on his blog, Diabetes-Warrior.net.

Three years ago Cooksey started a blog about his success controlling his diabetes through a diet low in carbs and rich in pasture-raised meats, animal fat, and vegetables. The blog attracted thousands of followers, led dozens of other diabetics to try Cooksey’s diet, and prompted questions from readers, which he began to answer in a Dear-Abby-style advice column.

Soon he started offering a “Diabetes Support Package,” a life-coaching service for people trying to adopt his diet and lifestyle, for a fee.

But his progress came to a screeching halt in January, when the state nutrition board caught wind of his website and informed him it was a crime to provide nutritional advice or “counseling” without a license.

The board’s director went through his blog with a red pen, underlining language she said was illegal, and “suggested” he remove it. If Cooksey failed to comply, the director said the blogger could be fined up to $10,000 and spend as many as 120 days in jail. So he removed it.

State law requires individuals to obtain a professional license before making such assessments, so Cooksey deleted anything that looked like “advice” about what “individuals” or particular “groups” of people should be eating. He believes he has been censored, which violates his freedom of speech.

Coburn disagreed.

The nutrition board’s lawyers argued in a July 27 memo that there was no need for an injunction against the board because the board never had made a formal or final decision about whether Cooksey’s speech was illegal. The board’s director had merely “noted areas of concern” in Cooksey’s blog, “invited further discussion,” and “asked” him to make the recommended changes to his website.

The board argued Cooksey had suffered no injury and had no grounds on which to sue. The board’s lawyers have asked the judge to dismiss the case.

In Coburn’s written order, denying Cooksey’s request for a preliminary injunction, he appeared to accept the board’s arguments.

The extent of Cooksey’s injury is “questionable,” Coburn said, because the board never took “formal action” against him, and because he “volunteered” to remove the “problematic” parts of his website.

“There is no evidence that plaintiff protested further or was otherwise ordered to comply,” he wrote.

“We think, frankly, that is an absurd position,” said Paul Sherman, one of Cooksey’s lawyers from the Institute for Justice, a libertarian public interest law firm.

“When the executive director of a government agency goes through your writing with a red pen and tells you on a line-by-line basis statements you’ve violated the law, that is a ripe controversy,” he said. “That is a controversy the court can hear.”

In a memo dated Aug. 10, the institute’s lawyers responded to Coburn’s order.

“Stopping speaking in response to a formal government investigation is the very definition of having one’s speech ‘chilled,’ and that is a First Amendment injury,” they wrote.

“Plaintiff Cooksey did not stop speaking voluntarily; his silence has been coerced by monitoring and the credible threat of sanctions,” the memo continued.

“Protected” speech

The board also argued that the First Amendment doesn’t apply to speech that the government decides is subject to occupational licensing.

“It’s a pretty extraordinary claim, a claim that we do not believe is supported by U.S. Supreme Court precedent, or even the 4th Circuit [Court of Appeals] precedent that [the board’s lawyers] rely on,” Sherman said.

“The remaining question raised here, then, is whether an otherwise permissible professional regulation becomes subject to First Amendment scrutiny because the regulated conduct includes spoken or written advice,” the board’s lawyers wrote in their memo. “The United States Court of Appeals for the 4th Circuit has considered this question and answered with a resounding, ‘No.’”

The crux of the case, the board wrote, was whether North Carolina should have the authority to license occupations to “safeguard the public health and safety.”

They noted that Cooksey’s “target audience is a uniquely vulnerable population that suffers from the chronic and life-threatening condition of diabetes and often struggles to control blood sugar levels,” and said his advice could have “potentially serious health implications.”

Coburn said Cooksey is seeking “permission to provide one-on-one advice about medical issues, which by their nature, must be highly individualized and personally tailored.”

Cooksey’s claim that such speech should be “permitted” without a license is “unlikely to succeed at trial,” Coburn wrote.

Coburn did note that Cooksey “remains free to advocate his nutritional beliefs through other avenues: he may associate himself with a licensed nutritionist; become a licensed nutritionist himself; or sell or endorse a line of nutritional supplements or products which would allow him to legally assert nutritional claims.”

Cooksey’s lawyers responded that the “case cannot be dismissed as though it were about occupational conduct such as performing heart transplants without a license and not about ordinary advice that laypeople exchange every day.”
As it stands, they argue, the North Carolina law violates the First Amendment of the U.S. Constitution, in that it prevents ordinary people from giving advice about nutrition.

“It does not matter whether the advice is for free or compensated,” Cooksey’s lawyers wrote. “It does not matter whether the advice is one-time or ongoing. It does not matter whether the advice is published or in private. It does not matter whether the advice is between friends or strangers. According to the Board, advice is the constitutional equivalent of criminal incitement or child pornography.”

Sherman maintained that “advice” speech is protected speech under the First Amendment, for all citizens, not just those with occupational licenses. He said the Institute for Justice looks forward to taking Cooksey’s case to the Court of Appeals, and the U.S. Supreme Court, if need be.

He said Coburn could make his decision by the end of September.

Sara Burrows is a contributor to Carolina Journal.